‘Ere Now, I Wun’t Do That, If I Were You

A tragic story recently dropped in the news of a couple that drove off a road onto a non-existent bridge. An ensuing conflagration took the life of the woman, the man escaped with his life. Numerous “Road Closed” signs, cross bucks, and traffic barrels stood silent testimony to the non-existent bridge ahead. Still, Iftikhar Hussain relentlessly obeyed his GPS, which apparently had not been updated with information showing the bridge closed and demolished. News coverage can be found here.

A story like that will put you to puzzling.

How do you ignore all the visible evidence of danger? Why would you trust technology when your eyes tell you something different? Had this just been a bump in the road, we would chuckle, but a woman died, so laughter is unseemly. The caution in the tale remains.

A lifetime ago, I studied law at St. Louis University School of Law. Too many tales to tell there, but one that connects to this post is a well-known case from our first year Torts class. Torts are claims for damages to persons or property, and Torts class introduces law students to the law that governs such claims, the defenses against them, and the public policies that overarch a system of damage claims in our society.

One of the first cases we took up involved the unfortunate reality of spontaneous combustion. Not the X-Files kind of spontaneous combustion shown here, but the one that occurs when vegetative matter ferments, creates sufficient heat, and ultimately combusts. This case was one of badly stacked hay, and the failure to heed cautions.

As keepers and herders of cattle, sheep, horses and other farm animals, humans have relied on stored grasses to feed their animals for centuries. Such grasses are commonly called “hay” (hay’s cousin, straw, is not a food stock for animals, but used for bedding, insulation, and other purposes). To meet the needs of their herds, and as a commodity, farmers grow grasses and legumes, harvest the plants before blossoming, and gather the harvest in bundles called “bales.” You have seen hay bundles (or straw ones). Probably you have seen these, the cube bundles, or if you have been into farmland areas, you have probably seen the giant rolls.

Hay bales are a kind of insurance against hungry livestock. Oddly, hay, the product of planning, labor, and diligence, also represents a significant source of risks for the careless. If poorly gathered, poorly baled, or poorly stored, mold or bacteria can contaminate hay, raising risks of harm to livestock and to humans. Gathering, moving and stacking hay bales presents logistical considerations, safety not being the least significant one.

In law school, in that Torts class, we studied a case involving one of those hay-related risks, realized. Studying the case afforded us, as students, the opportunity to consider whether one property owner owed a duty to the owners of adjoining properties in situations where they stored bundles of hay on their property. Manlove (a suggestively naughty name for, as it turns out, a naughty man) owned property adjoining that of Vaughan. Their properties, bucolic, rural, English ones, productive of the kinds of grasses that could serve well as animal fodder, ought to have been home to two harmonious subjects of the Crown. Had that been the case, then, of course, there would not have been a case for us to study. Had Manlove put his property to other use, too, he might not have become the watchword he did become. For Manlove has become the watchword to law students, to tort law professors, and to lawyers, for a legal concept called reasonable care.

The law, like many professions, floats on a sea of jargon. The word Torts, taking the place of the words, personal injury, or damages, is one such instance. Others could be offered. Manlove gives us a legal concept of “duty,” expressed in legal jargon as reasonable care. It all started out innocently enough.

Manlove grew grasses for hay. Manlove harvested those grasses. Manlove made bundles, bales, of those grasses. Manlove stored those bundles. His manner of stacking and storing his bales gave rise to the dispute between Manlove and his neighbor, Vaughan.

Manlove’s stack of bales – what farmers called a hayrick – spontaneously combusted. His neighbor’s property, with two cottages on it, adjoined the location of the flaming hayrick. The cottages suffered serious damage from the flames of Manlove’s fire.

Now today, like me, the Average Joe probably could not make a good bundle on his own (and we all know how tough it is to make a bundle under this administration), though he might, just maybe, make a reasonable stack from bales formed for him by another. But, would I have known, would the average Joe have known, that unless careful planning and execution were involved, the hayrick might become a flaming pyre?

As it turned out, even if Manlove did not know about fermentation of vegetative matter, the risks of spontaneous combustion and the like, his neighbors did. Our Torts professor, Nicolas Terry, hails from Ye Merry Olde England. Professor Terry gave us, in the accent of his native land, a rendition of the neighbor’s caution: “Ere now, I wun’t do that if I were you!”

It seemed that passersby could see that the hayrick constructed by Manlove presented serious risks of fire. Indeed, Manlove gave every indication of understanding the possible risk of fire, because, in response to the neighbor’s adjuration, he bombasted that “he would chance it.”

We tell such lovely tales, at least in law school, only because they turn out so badly. As a tale, the story of the bales of Manlove ends badly. The bales, too tightly packed, overly wet, and very fermentable, spontaneously ignited. Sparks carried on the wind to Vaughan’s cottages. Vaughan’s thatched roof cottages caught fire. A conflagration ensued. The result was much like that shown here.

Ere now, I wun’t do that.

Afterward, of course, a caution like that, ignored as it was by Manlove, is fairly damning. In the subsequent suit, Manlove resisted Vaughan’s claim for damages. He asserted that the conflagration and its consequence were not foreseeable outcomes and, therefore, preventable.

Yet, there were those words, “’ere now, I wun’t do that if I were you!” Ultimately, an English court concluded that Manlove failed to act with “reasonable care.” That advance caution told the tale of his carelessness, for even the casual observation of the passersby testified that Manlove created the risk that caused Vaughan’s loss.

We have the story of Manlove ignoring the advice of neighbors and passersby that his hayrick was a fire risk. We have the story of Iftikhar Hussain and his late wife, ignoring the obvious warnings all around them, blindly obeying the out-of-date GPS system. Cautionary tales like these have value, if at all, when we take the lesson of them. So let us take the lesson.

In 1787, the united States, thirteen of them, sent delegates to Philadelphia to consider changes to the Articles of Confederation that would strengthen the ability of the confederated States to respond to dangers and unrest. The proximate motivation for that meeting was the recently concluded Shay’s Rebellion. That armed uprising, most fiercely involving farmers of Massachusetts, including the eponymous Daniel Shay, resulted from a combination of rising tax debts, crop losses, and the threat and reality of foreclosures on family farms. Uprisings extended down to South Carolina, but were particularly heated in Massachusetts.

Under the Articles of Confederation, the ability of the confederated States to provide military assistance to each other when threatened with such uprisings, even when devolving into anarchy, was quite constrained. Worse, when Congress was not in session, it required the assent of a super-majority of the States – nine States – to exercise the powers delegated to the Congress. In the face of Shay’s Rebellion, the need for military assistance arose. Due to the restrictiveness of the Articles, however, the Confederation could not call out troops in a timely fashion.

With the “weaknesses” of the Articles thus exposed, the States responded to a call of the Congress to assemble representatives in Philadelphia to consider how the Articles might be improved, the Confederation strengthened. Ultimately, the Philadelphia Convention in the summer of 1787 produced the proposed Constitution of the United States. Congress, in turn, propounded that Constitution for consideration by the States. The requisite number to ratify the Constitution – nine States – did so by 1789. Getting to ratification provoked a national conversation. It was in that national conversation that, I would like to suggest, one or more “’ere now, I wun’t do that” appeared.

For present purposes, and because of the centrality of the federal courts in most every contested issue of public policy today, I offer this insight into the “’ere now” that cautioned against the specific constitutional framework for the Judicial Branch being considered by the States.

First principles, though, we should lay briefly out.

First, the States pre-existed the Constitution. In fact, the States gave life to the Constitution by their ratification of the same. Ronald Reagan, in his First Inaugural Address, explained, “All of us need to be reminded that the Federal Government did not create the States; the States created the Federal Government.” Subsequent machinations – for example, by the Supreme Court – to deny or to denigrate the role of the States and to attribute the ratification of the Constitution to the People of the country generally – simply ignore fact and history.

Second, the general government set up in the Constitution was one of defined, limited powers. James Madison, the architect of the Virginia Plan that guided much of the discussions in the 1787 Philadelphia Constitutional Convention, and one of three authors of the Federalist Papers, put this point as follows:  “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” Delegates from States less than sanguine about a growing general government viewed this principle as an essential bulwark against the aggrandizement of power in the general government. Any claim that a Constitution setting up a government of unrestrained powers would have been accepted by a sufficient number of States is beyond suspect.

Third, in framing the general government, the States divided the powers of that government among three branches, assigning entirely and solely to each branch powers of particular kinds. To the Legislative Branch, the States assigned all legislative powers; to the Executive Branch, the States assigned all executive powers; and, to the Judicial Branch, the States assigned all judicial powers.

Many points of dispute needed resolution by the States as part of, or prior to, their ratification debates. For example, not all the States agreed on the need for a stronger general government. The means of accomplishing various tasks typical of governments had to be addressed, including such things as regulating internal and international commerce, regulating relations with other nations, the designation of officers and functionaries of the government, had to be decided on, and justified when questioned. These and myriad other issues required resolution. Resolution required evaluation and debate.

Debate ensued. Key voices in the debate spoke through the journals and papers of the day. Opponents of the Constitution, Anti-Federalists, laid out their objections to the general framework and particular points. Supporters of the Constitution, Federalists, offered rebuttals to the Anti-Federalists’ arguments, and separate arguments for the Constitution and its particulars.

In The Federalist No. 78, Alexander Hamilton responded to Anti-Federalist concerns about the dangers inherent in the Judicial Branch proposed in the Constitution. Hamilton sought to assuage fears of an encroaching, threatening, and enlarging Judiciary. He wrote:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive.

The least dangerous branch to the liberties of the People, he asserted. Yes, Hamilton actually wrote those words. How times have proven him wrong repeatedly.

Beginning with its assertion of the sole power to construe, to state definitively the meaning of the Constitution, asserted by the Supreme Court as ground for striking down a federal statute in a case called Marbury v. Madison, the Judiciary has never shrunk, has never abandoned gained ground. Rather, whether actually expanding the bounds of its decisional territory in particular cases, or simply laying groundwork for doing so at subsequent opportunities, the Judicial Branch has worked relentlessly to aggrandize its power, to undermine the power of the States, and to arrogate to itself, in preference to the elected branches, powers related to determining the policy of the entire Nation on a broad spectrum of matters.

Now, as to that “’ere now, I wun’t do that,” allow me to expound.

One Anti-Federalist in particular, Brutus, widely accepted to have been the nom de plum of Robert Yates, saw matters rather differently than Hamilton. In fact, rather than the least dangerous branch, Brutus foresaw that the Judicial Branch, constructed as provided in the Constitution, would become the most dangerous to the liberties of the People.

In a series of essays, Brutus devastated Hamilton’s glib treatment of the Judicial Branch:

The power of th[e supreme] court is in many cases superior to that of th[e] legislature. I have showed . . . that this court will be authorised to decide … the meaning of the constitution; and that, not only according to the natural and obvious meaning of the words, but also according to the spirit and intention of it. In the exercise of this power they will … be … above the legislature. . . . The supreme court then have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void; and therefore in this respect their power is superior to that of the legislature. . . . The judges are supreme and no law, explanatory of the constitution, will be binding on them. Antifederalist No. 78

They [the courts] will give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution that can correct their errors, or control their adjudications. From this court there is no appeal. . . .

The judicial power will operate to effect, in the most certain, but yet silent and imperceptible manner, what is evidently the tendency of the constitution: I mean, an entire subversion of the legislative, executive and judicial powers of the individual states. Every adjudication of the supreme court, on any question that may arise upon the nature and extent of the general government, will affect the limits of the state jurisdiction. In proportion as the former enlarge the exercise of their powers, will that of the latter be restricted.

That the judicial power of the United States, will lean strongly in favor of the general government, and will give such an explanation to the constitution, as will favor an extension of its jurisdiction, is very evident from a variety of considerations. . . .

This power in the judicial, will enable them to mould the government, into any shape they please. The manner in which this may be effected we will hereafter examine. Antifederalist No. 79

Perhaps nothing could have been better conceived to facilitate the abolition of the state governments than the constitution of the judicial. They will be able to extend the limits of the general government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people. Their decisions on the meaning of the constitution will commonly take place in cases which arise between individuals, with which the public will not be generally acquainted. One adjudication will form a precedent to the next, and this to a following one. These cases will immediately affect individuals only, so that a series of determinations will probably take place before even the people will be informed of them. Antifederalist No. 82

I have included highlights from Brutus’ essays only, but I link them so you can read them in full. At the same time, I summarize briefly what Brutus expressed:

First, under the proposed Constitution, the Judiciary will predominate over the Legislative Branch, and over the States. The key to its predomination is its duty of deciding cases “arising under the Constitution. . . .” The Judiciary is required to decide such cases, but is not beholden to a superior power. Moreover, its own powers are not expressly circumscribed, except to the extent that the Judiciary can act only in actual cases and controversies.

Second, as proposed, the Judiciary will not find itself bound to the letter of the Constitution. Rather, the Judiciary will seek to apprehend and enforce the “spirit” and “intention” of it. How presciently Brutus looked into the future, seeing today’s unsettled dispute between hide-bound Constitutionalists and living breathing constitutionalists, between the Scalias and Thomases (and Jeffersons and Lincolns) on one hand and the Ginsbergs and Breyers (and the Wilsons and Roosevelts) on the other.

Third, as the Judiciary conducts its business in the deciding of cases and controversies, it will, by steps large and small, constantly and inexorably chip away at the independent status of the States in their reserved powers and rights. This erosion of the status of the States will not come by accident, through unintended consequences. Rather, it will be in the nature of the Judiciary to so construe the Constitution as to expand federal jurisdictions and contract State jurisdictions.

Thomas Jefferson offered an insight into this aspect of the Judiciary. In a September 1820 letter to William Jarvis, responding to Jarvis’ gift of his then-recently published Republican, Jefferson addressed Jarvis’ view that judges would be “the ultimate arbiters of all constitutional questions.” Jefferson considered that “a very dangerous doctrine indeed, and one which would place [the Nation] under the despotism of an oligarchy.” He continued, “They are then, in fact, the corps of sappers and miners, steadily working to undermine the independent rights of the states, and to consolidate all power in the hands of that government, in which they have so important a freehold estate.”

Fourth, and most disconcertingly, Brutus could not conceive of a plan better designed to abolish state and local government than the Judicial power of the proposed Constitution. It contained within itself the seeds of the destruction of States. Brutus, if he was Robert Yates, had grounds to consider that such a design was intentional. Among the proposed plans for the new Constitution, one plan, offered by Alexander Hamilton, would have virtually eliminated the separate State governments, reducing them, essentially, to departments or bureaus of the central government. Hamilton’s specifics too much resembled the English Parliamentary system and was rejected by the Convention. But Hamilton became a patron of the proposed Constitution and, with James Madison and John Jay, a principal author of the Federalist Papers.

Brutus offered his “’ere now.” Hamilton offered his sophistical contentions about the Judiciary. Now the time has come to tell the end of tale. In Hussain’s case, the story ended badly. In Manlove’s case, the story ended badly. In those cases, wise counsel was ignored, left untended.

And here?

It is fair to say, with the acuity of hindsight, that Brutus looked into this Nation’s future with surprising insight. His conclusions about the dominance of the Court over the States and over the other branches of the Court have proven correct beyond the wildest dreams of oligarchical rule.

Consider how, by bits and steps, the Judicial Branch, in its task of interpreting and applying the Constitution, whittled away at the power of State governments in areas long thought to be entirely separate and unreachable by the general government:

While education was a matter of purely local and State law, and was left alone as such for more than a century under the Constitution, in a pair of cases, Pierce v. Society of Sisters and Meyer v. Nebraska, the Supreme Court struck down state laws governing educational practices of the States. In Pierce, the stricken law prevented parents from exercising a prerogative to educate their children in private, parochial schools. In Meyer, the stricken law required all schools, public or private, to offer their courses of study in the English language. These two cases came out of an era of the Supreme Court’s growing affinity for the use of the Due Process Clause of the Fourteenth Amendment as an ax to hack away at State sovereignty across a broad field of human interests.

In like vein, in a case out of Virginia, Loving v. Virginia, the Supreme Court struck down a Virginia law prohibiting interracial marriage. Miscegenation laws served, I suppose, a highly dubious interest of the Commonwealth of Virginia in some irrationally perceived genetic danger resulting from such commingling. Again, before the era in which the Supreme Court had begun to assert a federal constitutional basis for evaluating and rejecting a raft of State laws long accepted as within the separate, sovereign spheres of State authority, such a decision would have surprised, if for no reason other than the assertion that the Constitution required it.

But Loving had simply trod further down a path explored by the Judicial Branch in striking State laws regulating contraception. There, in Griswold v. Connecticut, the Supreme Court again relied on some previously unknown matrix of federal power to invalidate a State law drawn and enacted to regulate in an area traditionally within the reach of State sovereignty.

A line drawn through State laws on contraception and miscegenation could be safely predicted to also strike out restrictions on the practice of abortion. Roe v. Wade followed rather quickly on the heels of those decisions. A judgment allowing a woman and her doctor, even in the face of a State’s interest in the life of a child, to gut that child, to aspirate her little body from the woman’s larger one, readily points down the path to a rejection of State authority to regulate human sexual relations at all. In fact, though it took a quarter of a century, the Supreme Court extended its reasoning in the Abortion Cases to strike down statutes prohibiting homosexual sexual activity, particularly sodomy, in Lawrence v. Texas.

In fact, that red pencil of Judicial arrogation is quite likely to continue right on striking down laws of the States regulating areas of human intercourse long thought to be solely the province of State regulation. By July, we will discover whether the next most likely victim of the Judicial Branch’s red pencil -- State laws and constitutional provisions limiting marriage -- to opposite sex couples will be swallowed by the gaping maw of the Judicial Branch.

Nor has the Judicial Branch been wanting in attending to the task of demonstrating its predominance among the coordinate branches of the general government.

The Judicial Branch struck down, and strikes down, congressional enactments at a pace that might seem glacial to activists, but maniacal to Brutus and to Jefferson. Beginning with the previously mentioned Marbury v. Madison, the Judicial Branch asserted and exercised a power to review congressional enactments. The Court used that power first in Marbury, where it struck down a law giving certain claimants a right to file suit in the Supreme Court. Subsequently, the Judicial Branch has interposed itself in (and today continues to interpose itself in) the great questions of law and policy formerly thought to be most safely reposed in the representative body of the People, the Legislative Branch.

In Dred Scott v. Sandford, for example, the Supreme Court ended three decades of uneasy truce between the States bitterly opposed to each other over this very question. There, the Supreme Court struck down the Compromise of 1820, which checked the growth of slavery and in federally administered territories entirely prohibited the practice. The Court not only held that blacks were not, and never could be citizens of the United States in that case, but expressly denied that the Congress had power to regulate slavery in federally administered territories. A war amended that decision, but at the cost of near a half million lives.

The Judicial Branch has struck down federal statutes on campaign finance.

The Judicial Branch has struck down a federal statute on Voting Rights.

The Judicial Branch has struck down federal statutes on marriage, and on religious liberties.

In the election of 1800, what Jefferson called the Revolution of 1800, the nation turned from the Federalists toward the Jeffersonian Republicans. Still, in the maddening rush of the lame duck Federalist Congress, the outgoing Congress revised the Judicial Branch’s structure, created the Circuit Courts of Appeal, installed a raft of judges of Federalist sympathy, and left in their ruinous wake, what Jefferson considered to be the most insurmountable problem.  For even with the great realignment in the Legislative Branch and the Executive Branch, the entrenchment of Federalist judges guaranteed great difficulty or complete impossibility for the tasks of shoring up the separate sovereignty of the States and the attendant liberties of the People.

So, ‘ere now, against Brutus’ warning, and with the insane encouragement of Alexander “Mr. Toad” Hamilton, our Nation has, in fact, been on a wild ride of judicial arrogation and excess extending two full centuries and beyond. So, when you ask yourself how could the Hussains have driven off a nonexistent bridge, how could Manlove have burned his neighbor’s cottages, even in the face of such obvious warnings a highway safety signs and neighborly “’ere nows,” it might be wise to wonder which tragedy is greatest.