Calder v. Bull was the first case in which the Supreme Court of the United States granted a writ of error to review a state-court decision on the constitutionality of state legislation. See Daniel A. Degnan, S.J., William Paterson, in Seriatim: The Supreme Court Before John Marshall (Scott Douglas Gerber, ed.); see also Judiciary Act of 1789, Section 25. But the decision is not typically studied now for what it reveals about the Supreme Court's appellate jurisdiction in relation to state courts. More typically, first-year law students encounter excerpts from the opinions of Justice Chase and Justice Iredell regarding the relationships among natural principles of justice, state and federal legislative power, and federal judicial power.
The opinion of Justice Iredell is usually noted for his denial of Supreme Court authority to pronounce void a federal or state legislative act that is contrary to principles of natural justice but not contrary to any provision of the Constitution:
If, then, a government, composed of Legislative, Executive and Judicial departments, were established, by a Constitution, which imposed no limits on the legislative power, the consequence would inevitably be, that whatever the legislative power chose to enact, would be lawfully enacted, and the judicial power could never interpose to pronounce it void. It is true, that some speculative jurists have held, that a legislative act against natural justice must, in itself, be void; but I cannot think that, under such a government, any Court of Justice would possess a power to declare it so. Sir William Blackstone, having put the strong case of an act of Parliament, which authorise a man to try his own cause, explicitly adds, that even in that case, "there is no court that has power to defeat the intent of the Legislature, when couched in such evident and express words, as leave no doubt whether it was the intent of the Legislature, or no." 1 Bl. Com. 91.
In order, therefore, to guard against so great an evil, it has been the policy of all the American states, which have, individually, framed their state constitutions since the revolution, and of the people of the United States, when they framed the Federal Constitution, to define with precision the objects of the legislative power, and to restrain its exercise within marked and settled boundaries. If any act of Congress, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably void; though, I admit, that as the authority to declare it void is of a delicate and awful nature, the Court will never resort to that authority, but in a clear and urgent case. If, on the other hand, the Legislature of the Union, or the Legislature of any member of the Union, shall pass a law, within the general scope of their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice. There are then but two lights, in which the subject can be viewed: 1st. If the Legislature pursue the authority delegated to them, their acts are valid. 2d. If they transgress the boundaries of that authority, their acts are invalid. In the former case, they exercise the discretion vested in them by the people, to whom alone they are responsible for the faithful discharge of their trust: but in the latter case, they violate a fundamental law, which must be our guide, whenever we are called upon as judges to determine the validity of a legislative act.
Calder v. Bull, 3 U.S. 386, 398-99 (1798) (Iredell, J.)
Whether the federal judicial power includes the authority to declare void legislative acts that violate principles of natural justice is a question of obvious interest. But rather than enter into that debate here, I thought I would highlight an aside at the end of Iredell's opinion that refers to Providence in a discussion of the use of a bad means to accomplish a good end:
Upon the whole, though there cannot be a case, in which an ex post facto law in criminal matters is requisite, or justifiable (for Providence never can intend to promote the prosperity of any country by bad means) yet, in the present instance the objection does not arise: Because, 1st. if the act of the Legislature of Connecticut was a judicial act, it is not within the words of the Constitution; and 2d. even if it was a legislative act, it is not within the meaning of the prohibition.
Id. at 400.
Friday, April 25, 2014
This is the time of the law school semester when law students confront sometimes fanciful hypotheticals on final examinations. For various reasons, I’ve already told my (mostly) first-year students in Constitutional Law that I will not be giving them an essay question on Section 5 of the Fourteenth Amendment. But in thinking about the constitutionality of state-law marriage definitions that require a man and a woman for civil marriage, I came up with a question about a hypothetical piece of legislation that seems like it could fit on a final examination this year. Since I won’t be putting it on an examination, I thought I’d post it and see if MOJ readers have analyses that they would like to share. (We still have a no-comments general policy here, so I’ve cross-posted this on my mostly abandoned (in favor of MOJ) personal blog. If you’d like, go ahead and comment there.)
Suppose that Congress passes and President Obama signs new federal legislation, The Defense of Marriage Equality Act (“DOMEA”). The operative provisions of DOMEA state: “(1) No state shall deny civil marriage to any person because he or she has chosen to marry a person of the same sex. (2) No state shall refuse to recognize a civil marriage that was performed in another state, and remains valid in the state of celebration, on the ground that the married couple are persons of the same sex.”
Congress’s premise in passing DOMEA is that federal legislation is needed to enforce the Fourteenth Amendment’s Due Process Clause, which protects the right to marry for all people, and the Fourteenth Amendment’s Equal Protection Clause, which prohibits classifications that burden fundamental rights and that discriminate against disfavored classes. A “Findings” section of DOMEA states, among other things, “Congress finds that state laws that limit marriage to one man and one woman violate the Fourteenth Amendment because such laws deny gays and lesbians the constitutionally protected right to marry the partner of their choosing.” This congressional finding is based on the Supreme Court’s decisions in Windsor, Lawrence, and Romer, as well as the string of post-Windsor lower-court decisions that have (thus far unanimously) held opposite-sex-only marriage definitions unconstitutional under the Fourteenth Amendment.
Does Congress have authority under Section 5 of the Fourteenth Amendment to enact DOMEA? Provide a brief analysis setting forth the strongest arguments and counter-arguments in support of your conclusion.
Thursday, April 24, 2014
In his exploration of John Marshall's jurisprudence, Robert Faulkner has described how Marshall sought, in a way, to found a "political religion" in which the Constitution is a "sacred instrument" to be treated with reverence. Here is an excerpt in which Faulkner discusses Marshall's judicial writing style:
The Chief Justice's mode of construction, "adhering to the letter of the statute, taking the whole together," also tended to engender close respect for the law. And the style of his writing had a similar effect. Story remarked that Marshall followed Lord Bacon's suggestion, with which the conduct of Justice Holmes might be instructively compared, that "judges ought to be more learned than witty; more reverend than plausible; and more advised than confident." The gravity of the Chief Justice's style is proverbial. While it dulls the Life of George Washington, it yields an appropriate dignity to the judge. Marshall rose to a kind of magisterial reverence when he treated the fundamental law. By no means, his whole manner indicated,, was the Constitution to be confused with the hurly-burly of politics. It was to be venerated, not controverted. It seems, as the more flippant and unreflective commentators have not hesitated to point out, that Marshall dealt not merely with a constitution framed by unusual mean, but with a sacred law made by sainted men. The reverence of Americans for their law and for the "cult of the robe" has not gone unnoticed. It is certain that the great Chief Justice's endeavors have something to do with this. Apart from the tone of his opinions, he repeatedly called the Constitution "sacred." Perhaps the best illustration of his treatment occurred when in United States v. Maurice he was faced with a rather ambiguous provision of the fundamental law. He wanted so badly to shield Constitution and framers from any imputation of error, that he ascribed to the flaw itself responsibility for its own appearance. "I feel no diminution of reverence for the framers of this sacred instrument, when I say that some ambiguity of expression has found its way into this clause." In his own way too Marshall tried to found a "political religion."
Robert Kenneth Faulkner, The Jurisprudence of John Marshall, 218-19 (1968).
Mary's post on working with the Vatican against modern slavery brought to mind St. Josephine Bakhita, a former Sudanese slave canonized in 2000. After being traded among several owners, Bakhita ended up with an Italian family who brought her to Italy. When her Italian owners needed to return to tend to affairs in Africa, she was left to live for a short time with the Canossian sisters. She later refused to allow her Italian owners to bring her back with them to Africa. In the resulting court case, she was recognized to be free under Italian law. (I only know what Google has found for me about the legal reasoning, which seemed to be either that she was not a slave because Italian law did not recognize slavery or because she was never a slave under the law as it existed in Sudan when she was captured by slave traders in 1877.)
As Lawrence Cunningham has written, "When we honor Josephine Bakhita, we ought to do so not with any spirit of sentimentality but with a vigorous sense of outrage at those who rob children and adults of their dignity, their freedom and their physical and spiritual integrity. We honor Josephine Bakhita not as a humble nun (which she surely was) but as an emblematic figure who stands for all who are enslaved."
(See below for excerpts from Pope John Paul II's canonization homily.)
Continue reading
Wednesday, April 9, 2014
Shon Hopwood, author of Law Man: My Story of Robbing Banks, Winning Supreme Court Cases, and Finding Redemption, has a testimony essay at Christianity Today: "God's Hot Pursuit of an Armed Bank Robber."
The essay opens: "It didn't take a moment of genius introspection to realize that doing life my way had led to nothing but disaster and destruction. It was the summer of 2009, and I had just completed an almost 11-year sentence in federal prison for my role in five bank robberies I had committed as a foolish young man."
The story that follows is so improbable that it would make for lousy fiction if it were not true. But it makes for spirit-affirming real-life testimony.
The essay concludes: "Through it all, from the amazing to the mundane, God loved us. Through it all, God has given us a purpose. For me that purpose revolves around repentance, loving my wife and children, sharing the grace I've been given, and using my legal knowledge to assist those who cannot afford a decent attorney. Looking back over the course of my life, I can see that although I rarely returned the favor, God hotly pursued me."
Mr. Hopwood's choice of legal metaphor is apt. The doctrine of hot pursuit in criminal law authorizes the police to chase someone into an area where there would otherwise be a reasonable expectation of privacy, in order to apprehend him, if the police have probable cause to believe that he committed a serious crime.
Mr. Hopwood's testimony is about a God who keeps up the chase, who never relents. It brings to mind another famous legal phrase, "deliberate speed." The source for this phrase, deliberately ambiguous as used in Brown II, may have been Francis Thompson's "Hound of Heaven," in which it means something entirely different from what it was taken to mean in implementing Brown. (Interestingly, the phrase "with all deliberate speed" appears to have been put in Brown II at Felix Frankfurter's urging, although he credited Holmes with the phrase. Holmes, in turn, said he derived it from English chancery practice. But Frankfurter could not find any such source.)
(HT: Fulton Sheen--"The two great dramas of life are the soul in pursuit of God and God in pursuit of the soul." Whenever I think of The Hound of Heaven, I can hear Archbishop Sheen's voice reciting it. If anyone knows of a link to an online version of Sheen reciting verses from the poem, I would be most grateful to learn of it. For now, here's RIchard Burton's recitation.)
Wednesday, April 2, 2014
Over at dotCommonweal, Grant Gallicho has a post titled "On abortion, Hobby Lobby looking wobbly." Gallicho comments on a Mother Jones report by Molly Redden: "Hobby Lobby's Hypocrisy: The Company's Retirement Plan Invests in Contraception Manufacturers." The source of Hobby Lobby's alleged hypocrisy is its retirement plan's investments in mutual funds whose holdings include Teva Pharmaceuticals, Pfizer, Bayer, AstraZeneca, and Forest Laboratories. According to Redden, these companies manufacture drugs or devices that Hobby Lobby objects to providing coverage of in the insurance offered to its employees.
Suggesting that Hobby Lobby is insincere in its objections to facilitating the use of abortifacient drugs and devices, Gallicho suggests that "the cooperation is more direct" through these mutual fund investments than through no-copay insurance coverage. These mutual-fund investments, Gallicho asserts, "brin[g] Hobby Lobby significantly closer to the evil in question than would any premium payments that could allow employees to use contraceptive services."
I would be surprised if many shared Gallicho's assessment of moral culpability. Is an employer more morally culpable for contributing to cigarette smoking because (a) its retirement plan owns mutual funds that own shares in Altria, or (b) it purchases an employee benefits plan that includes vouchers for Marlboros at no additional cost to its employees?
Gallicho asks: "What might last week's oral arguments [in Hobby Lobby's case] have sounded like had this been reported earlier?" He is unsure. But I think it's safe to say that the arguments would have either proceeded exactly as they did or have gone slightly worse for the government.
Unlike Gallicho, the government has not challenged Hobby Lobby's sincerity. And more to the point of Gallicho's question, it is highly unlikely that the Justices would share Gallicho's assessment of comparative moral culpability. From their financial disclosures, it seems the only Justices who would be free of moral taint for the activities of companies whose shares are owned by mutual funds owned by the Justices would be Justices Kennedy, Thomas, and Sotomayor. (This is based on their 2010 disclosures, which are the most recent available at Oyez.) The other six Justices all own or have recently owned shares of mutual funds. And it is safe to assume that some of those mutual funds, particularly the broadly diversified funds, own shares in the same pharmaceutical companies that the mutual funds offered to Hobby Lobby's employees do Hobby Lobby does. Moral or theological merits of the argument aside, it would be bad lawyering to argue that these Justices bear some moral culpability for the actions of these companies because they "inves[t] annually [in funds that own shares of companies that] directly suppor[t] the production of drugs that always cause abortions."
[Update: Edited for clarity.]
