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