What is Martial Law?

Cecil's Columns/Staff Reports
41

What I think is in line with what every mainstream historian thinks: that the Constitution was never intended by its writers to be the last word on every subject and that it should be able to encompass the new as it came along.

As far as I am aware, there is no such movement as originalism* among mainstream historians. The phrase “the founding fathers thought” is an oxymoron to them. They know that every single line of the Constitution is a compromise, there only to get the damn thing approved by a majority of the states. That anyone would take the exact wording of the lines as something fixed forevermore is as bizarre to them as it would have been to the men who wrote the constitution.

Now, it’s true that those men did not envision the Supreme Court taking on quite the role it did. But to historians, this is evidence that the flexibility of the form was inherent in the structure even though it appears nowhere in the wording.

I have never been able to understand the movement of a certain branch of lawyers, judges, and legal scholars to insist that the wording of a series of compromises must rule situations never dreamed of at the time. I am unable to see it as history or as law. (Which seems to leave only ideology.)

I am not competent to judge Roe V. Wade as law. Whether the penumbra argument makes sense is for someone else to determine. I am enough of an amateur historian, however, to insist that originalism is to history as creationism is to science. At best a logical perversion; at most a deliberate attempt to undermine its authority for ideological reasons.

The Ninth Amendment is a fascinating example of this process. Its words have great precision, yet can be interpreted to fit anyone’s notions. It allows the discovery of additional rights, but does not compel them, nor does it give any indication of what those rights might be. Obviously the writers meant something by it, but nobody today can quite put their finger on that what something is. It is, as I understand it, generally held today to be no more than a general warning against saying that things not mentioned are not meant but that it grants no rights either. As a problem in logic it is no doubt bottomless, but to historians it says more about the fears of restrictions on rights than on expansions on them.

And historians would argue that every aspect of our notions of self-government has changed greatly over the 200+ years. That our notion of what the Supreme Court has as well wouldn’t surprise or alarm any historian. It’s not a slap in the face: it’s precedent. Why lawyers would argue against precedent, again, except for ideological reasons, is bizarre.

History, to be sure, has been argued from a multitude of points of view, left, right, and points not on any ordinary compass. But there is surprisingly little disagreement these days on what the founding fathers were. They were the Dope on parchment. Trying to determine the intent of their words is like trying to determine the intent of these Boards. It can’t be done. More than that: it would be deliberate disinformation to spread an argument saying that this is what the Dope thinks. Yet that is what originalism seeks to do.

I don’t get it.
*Please let’s not get into parsing the shades of meanings among orginalism, original meaning, strict constuctionism, and the rest.

42

The last two paragraphs of my previous post remain unaddressed.

43

Certainly true, which is why the parts about amendments is there.

Also why the Tenth Amendment is there - it gives the source for “the new”. Note that “the new” does not come from the Supreme Court.

ISTM that the Ninth and Tenth Amendments go together. The Ninth says that the list of enumerated rights is not exhaustive - there can be others. The Tenth says who can determine what those new rights are.

A very post-modern approach.

Would you agree that it is impossible to determine the intent of the First Amendment? Or, perhaps, would you agree that the Hamdi detention is perfectly licit, because there is no way to determine the intent of the Founding Fathers as regards the accused’s rights?

Regards,
Shodan

44

Sorry, I didn’t see this earlier. :o

As Rick is pointing out, the Ninth Amendment simply says that, if a right existed (emphasis on the tense) at the time of the adoption of the amendments that make up the Bill of Rights, the fact that it didn’t get specifically listed isn’t a reason to say, “that right no longer exists.” As Rick says, it’s a construction rule.

It is NOT a source of rights.

But, of course, this is irrelevant to Roe v. Wade. The opinion of Justice Blackmun, and the concurring opinion of Justice Douglas in companion case Doe v. Bolton, make clear that the determination of a fundamental right to choose to abort a fetus comes from the basic concept of “liberty” found in the Fourteenth Amendment. Nor did the court rely upon the rationale of Griswold v. Connecticut and it’s “penumbra” from the Bill of Rights. It simply, flatly stated that there existed a right to privacy inherent in the Fourteenth Amendment sufficient to encompass the right to abort a fetus.

The whole decision concept is concocted out of a liberal interpretation of the meaning of the due process clause. The Ninth Amendment is not involved in any way.

45

Of course not. In fact, that is diametrically opposed to what I say. In reality, the intent of the First Amendment is re-determined every time a ruling is made referencing it. You can call that post-modern, but it manifestly is not. It is simply what judges do. You can try to say that this means that judges can make the First Amendment mean whatever they want by using absurd examples, but this doesn’t work either. For one thing, judges are responding to current law, which limits their scope. For another thing, as Mr. Dooley said, the Supreme Court follows the election returns. That’s how it could find separate but equal totally constitutional in one era and and totally not in another era. Any law student could find another 1000 decisions in which the Court overturned a previous ruling, some within a very few years. The law does - must - evolve with the times. The only restriction that I see is that it cannot go backward and undo the evolution of history. At least not for very long. See election returns above.

I addressed them both in my previous post and in this one.

46

IOW, the meaning changes every time a ruling is issued. So you can determine what it means now, but not what it might mean in the future.

Actually, it is.

Yes, they do that, but that doesn’t make it legitimate.

Could you describe the current law to which the Supremes were responding, that limited the scope of, for instance, Roe v. Wade?

And by what mechanism is this enforced?

Suppose the Court overturns Roe v. Wade tomorrow, and base their decision on the Ninth Amendment. I assume you would thus agree that [list=A][li]This is a correct interpretation, and []this is an evolution of the law with the times, and []this is also legitimate because it follows the elections. Bush was elected, twice. Thus the Supreme Court should follow this election and change the law to say what Bush wants.[/list][/li]Regards,
Shodan

47

[QUOTE=Shodan]
Suppose the Court overturns Roe v. Wade tomorrow, and base their decision on the Ninth Amendment. I assume you would thus agree that [list=A][li]This is a correct interpretation, and []this is an evolution of the law with the times, and []this is also legitimate because it follows the elections. Bush was elected, twice. Thus the Supreme Court should follow this election and change the law to say what Bush wants.[/list][/li][/QUOTE]

Do you really not understand the meaning behind a quote that’s been around for over 100 years?

For the rest of you, Mr. Dooley was a comic character created by Peter Finley Dunne in 1898. He was the mouthpiece for Dunne’s satire, and was especially known for political commentary. The pieces were written to represent a thick Irish brogue and they’ve fallen out of favor today because of that.

I can’t find the original page for complete context, but the quote at Wiki reads, “No matter whether the Constitution follows the flag or not, the Supreme Court follows the election returns.” so it probably was in reference to our takeover of the Philippines.

The quote can be read as Shodan does, as a cynical “the Supreme Court does whatever the president wants.” This is absurd, of course, and hardly does credit to Dunne as a commentator.

The Supreme Court is a lagging indicator. Judges are appointed for life and they and the body are slow to change. New presidents appoint new judges, but they are hardly assured of how that judge will vote in the next decade or two. The Court never - and I believe never is so close to true that the usual hedges of virtually or hardly ever don’t need to be applied - is in advance of the will of the majority on an issue. I wouldn’t even except Brown v Board of Education. The world had clearly changed since WWII and a series of decisions creeping up to that big one had already established the country’s mood.

Brown used the same law as Plessy v Ferguson but interpreted it oppositely. Why? Because the country had changed. The Supreme Court did not make that change but they are real live human beings who live in the real world. That’s what following the election returns means.

As to your questions. Note that I have not at any time given any opinion whatsoever on whether any specific ruling was correct or not. Just the opposite. I’ve said I’m not qualified to comment on technical matters of law. So if the Court overturns Roe v Wade, they overturn it. I won’t be able to judge its correctness as a matter of law then either. I do say that since such a ruling would go against the tide of history it will be overturned sooner rather than later, but I won’t have any comment on the reasoning used then. You can’t turn back the tide of history, except temporarily and in small ways, and when you do that the resulting wave will smash you. That’s what any good reading of history tells the close observer.

Now I have a question for you.

Since you consider it “illegitimate” that all judges at all times in history have always determined the law to be what they currently understand it to be, how would a “legitimate” system be put into place in any real world?

48

You did?

For review, here they are again:

I am willing to bet that if we gave this exercise as a test in reading comprehension to a group of high school seniors, vanishingly few would be able to identify the answers to my questions in what you wrote. Perhaps they were subtle answers, derived from the penumbras and the emanations of your words.

49

It seems to me that Bricker is asserting a positive right to receive certain services from certain individuals.

But the Ninth Amendment clearly applies to negative rights, activities that Congress is not empowered to restrict.

As for abortion, I would have to reread Roe v Wade to ascertain its connection, if any, to the 9th Amendment. But it seems to me that a right to privacy is arguably derivable from the 4th and 9th.

50

Of course it’s not. Nothing in the Constitution is a source of rights. What the Ninth Ammendment (like the First through Eighth) is, is a recognition of rights.

51

the questions I posed remain. if you say that the Constitution protects specific rights like abortion, even though they don’t appear in the text and are not even fairly described as an obvious necessity if the text is to be meaningful… then who decides what those rights are? SCOTUS? are you sure? even after more conservatives are appointed? do you really want the standard to be ‘Whatever SCOTUS wants to see in there is in there!’

52

That’s simply playing with words. The First Amendment is a guarantee of a right (actually several rights). The Ninth Amendment is not the guarantee of ANY right. It is simply a recognition that the mere fact that eight amendments listed specific rights doesn’t mean that any that existed and weren’t listed were intended to be extinguished by that fact.

The trouble comes when people want to create new rights which haven’t existed before, and point to the Ninth Amendment as being the reason they can do that.

53

Yes, but those questions remain in basically every area of constitutional law. They fall under the “Judicial restraint/ judicial modesty” topic.

The ninth amendment was put there for a reason, so that aspiring tyrants and wise guys wouldn’t interpret the Bill of Rights in an overly narrow fashion and so the document could engage with changing circumstance and (as an example) technologies.

I’ll openly concede that I’m dodging Roe v. Wade here though and focusing on the general concepts.

54

I don’t want it to be that way or not want it to be that way.

I’m saying that it is that way. That it always has been that way. That it always will be that way.

That is reality. It is that reality which we must deal with.

I cannot figure out - and you are using childish games not to say - what alternative there can be, how to get there, or how to enforce it.

55

MODERATOR INTERJECTS: Discussion of the role of the Supreme Court in decided laws is somewhat tangent to the discussion of martial law.

If you’d like to discuss the role of the Supreme Court, please start a different thread, probably in Great Debates. This thread needs to get back to Martial Law, please, or I’ll shut it down for having wandered too far afield.

56

I would go distinctly further than the answer of DSYoungEsq on this. It is not just “playing with words”; as applied to most of the Constitution other than the Ninth Amendment, it is wrong. You cannot sensibly discuss Constitutional law at all, including the original issue of martial law, if you think all the Constitution does is recognize existing rights.

The right to free exercise of religion or not to support a state-sponsored religion was not a right in the English colonies, only in some of them. Neither were “freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”; “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” nor for reasonable searches to be based on warrants based on probable cause. There was no general right of a defendant not to be compelled to be a witness against himself, no right to a speedy and public trial. Some (most) states had decided to grant such rights; but it was up to each of them, and to the extent that they existed, they were not rights of all citizens of the US but only of those that each state decided to grant them to. At any point, but for the Constitution, any one state probably could have eliminated any of these rights.

And like the rest of these, there was no assurance of the right to a writ of habeas corpus except to the extent that the courts of each state continued to support it.

Arguably, as a matter of philosophy, there are “natural” or “God-given” or “inalienable” rights. The concept is meaningless in law; in a court, you have the rights the law gives you, not the ones your philosophy claims to. You have no right to jury trial, speedy or otherwise, and no right to habeas corpus, unless something in the law says you do. If the Constitution merely “recognized” rights coming from somewhere unspecified, they would not effectively be rights at all.

The Roe v. Wade decision, and a number of others, do confuse the issue by “implying” rights that are not explicitly stated, but may (or may not) be fairly inferred from the language. I’m not going to get into Roe v. Wade myself; but note that the decision would have been substantially different had the Justices decided that they could rely on “recognition” of rights already existing. They didn’t. They had to look for rights that were implicitly, if not explicitly, granted.

That’s why so much attention has been paid to the fact that Article 1 of the Constitution only implies that there is a right (or “privilege”) to a writ of habeas corpus without, saying so straightforwardly, as is more common in the Bill of Rights. If you want to look at the limitations on martial law, you need to look at the rights the Constitution does grant to the people, and the extent to which (generally or in any given case) the imposition of martial law conflicts with those rights.

57

The Constitution continues to be grounded in English Common Law.

58

And SteveG23, I will point out that nothing in the first 8 amendments prohibits a state from doing anything. Indeed, several states had laws prohibiting or infringing on the free exercise of religion for a long time, among other things. It was not until the development of the concept that “liberty” as used in the 14th Amendment’s due process clause included various of the “rights” granted to people regarding federal action that these “rights” were incorporated into the general right to “due process,” which, of course, states cannot infringe.

59

Good point. They were new as legal rights, but at that point they were rights as against the Federal Government that might otherwise have infringed them.