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Constitutional Philosophy: Jon Roland, Lecture 2, 2012/11/17
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Jun 5, 2025
Jon Roland examines political philosophy with a focus of what is law, authority, consent, legal duty to obey and help enforce, theory of mind, legal interpretation, and ends with a comprehensive list of most constitutional rights. Lecture 2. 2012/11/17. Austin Philosophy Discussion Group. Q&A 2: http://youtu.be/dvlNclfVl90 Slide file http://constitution.org/col/jdr/con_phil-02.ppt Lecture 1: http://youtu.be/43mKmNZCT3E Lecture 3: http://youtu.be/nERAnPjxRnw
View Video Transcript
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good morning this is the November 17th edition of uh series of lectures on
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constitutional philosophy of the uh Austin philosophy
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Discussion Group I'm John roll today's lecture will continue what we discussed
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last week
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and we ask the question first of all what is a law
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now it's generally agreed by most political philosophers that a law is a
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command this was particularly discussed by raws
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and it's particularly it's a law command from a lawgiver
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which in uh ancient political philosophy at least medieval is called a sovereign The
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Sovereign is the Supreme lawmaker in an IL legal system originally that was a monarch but
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it could be as it is in our system the people acting
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collectively so whatever is the place the buck stops for lawmaking that's the
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sovereign
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The Sovereign the lawgiver is that to whose authority we
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consent and which we have an inalienable duty to obey in other words we have to
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obey ourselves we can't have have somebody else to obey for
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us and the Duty includes the duty to help enforce it not just obey it
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ourselves but get others to obey it
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and this is where we in the the controversial area according to the
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meaning it had the lawgiver now there's a lot of
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controversy on this because a lot of people today would argue that well it
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the law means whatever we decide it means or that a judge decides it means the
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problem is do we really want to call such a thing a law if it doesn't mean
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what it meant to the lawgiver doesn't it you just then devolve into some kind of suggestion or
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hint or maybe a poetic or artistic
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manifestation so if we're really going to call it law I would argue you that it
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has to have the meaning it had for the lawgiver and this was an important
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qualification directly interpreted by us and not through a mediator again we can't assign the duty
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of interpreting the law to someone else we can as a practical matter in
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particular cases but ultimately when we when we have to
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enforce the law ourselves we have to be able to decide for ourselves what that
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law is you mean each individual citizen has the duty and the right to make his
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or her own interpretation and to enforce the law accordingly that's right and under a written Constitution
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that's the only way it can be we're all on our
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own now what is an author well it's not just a
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lawmaker an a who it's also a jurisdiction that is a what aw and a to
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whom a what is subject matter aware is territory and a to whom is person
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jurisdiction these are the three kinds of jurisdiction that must all be satisfied
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for a law to be applicable and it's a pro process a how
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and a when it somebody doesn't just make a law
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he has to do it in a certain way for it to be legitimate and it has to have a
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legitimate purpose a why and a Wither in other words no delegation of power is
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ever plener all delegations of power
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however AB absolutely they may be stated always have a qualification that they
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have to be for a legitimate purpose that's why how we get into the problem of abuse of discretion in the
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exercise of a power but to what can we
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consent there are limits to what we can consent to as loot
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discusses nature forbids consenting to the loss of our inalienable
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rights in other words we cannot agree to be slaves we cannot agree to sacrifice our
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lives with one exception through due process is either a price for
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incompetence violations of the social contract or for defense in other words you
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can agree to risk your life or your Liberty or whatever in the defense of
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the society as part of a general process of
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everyone sharing the same risk or you can even agree to go on a
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suicide mission but it has be for one of these legitimate
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purposes finally you can for we can enter into or remain on the
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territory of the state subjects one only to laws compatible with the
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Constitutions of nature society and the state if you cross the border into
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Louisiana and Louisiana has a law on the books According to which anyone from
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Texas is subject to being immediately executed
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you might reasonably conclude that that wasn't a law to which you were uh bound
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to submit
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now Disobedience breaks the social contract not just making War committing
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a violent act but Disobedience to law real law is not just a suggestion or
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a guide violation has consequences including losing honor and
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forfeiting life one may seek the protection of an enabling herd you may get a bunch of
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buddies to surround you and say oh that's all right everybody's doing it we don't have to do that you know we'll
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stand by you we'll allow by you we'll say you weren't there
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but all that does is put your her at war with the rest of
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society and the rule that I suggest for us all is exer
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cons let the Constitution be enforced so the heavens
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fall but the question keeps being raised and
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it's raised in the current movie linol which I recommend everybody
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see in the movie This ideas presented in a
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imaginary uh dialogue with his cabinet but
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historically Lincoln made this argument in a speech to Congress following criticism by Chief
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Justice T about him suspending habius Corpus on his own
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authority in that speech given July 4th
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1861 he said are all the laws but one to go unexecuted and the government itself
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go to Pieces lest that one be violated so now we have the
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problem adherence obedience to law sounds like a simple enough principle
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but sometimes we can't obey all the laws at the same time sometimes circumstances Force us to
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choose and of course the question keeps coming up the the famous phrase from
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Justice Jackson is a constitution of suicide
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pact and the old Latin expression inter Arma seal and
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lias in war the law is
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silent I would argue necess necessity may excuse but it never
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authorizes there's a logical fallacy involved the fallacy of n ero
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price NE necessary therefore have a
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power and there is usually a price to pay I'm sorry makes use what not auth
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failing to that's a necessi of any kind
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therefore I have a power to doce what is necessary to do what breaking the law to
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do anything that is thought necessary yeah including exercise in powers that
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you don't have
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now great challenges test constitutions and societies which sometimes fail
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because once we make an exception once we
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say one then we can say another one and still another and still
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another we' say well this is just for the emergency with the emergency can go
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on for weeks or months or years or decades or
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centuries so we always have the problem of how do we
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reconcile this conflict in real world
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situations and is a depression really equivalent to a war in creating
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Necessities that may require violations of the Constitution
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but now we get into the problem of interpreting the Constitution or any
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law what can the meanings be well it can have the meaning it had
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for the writer when he wrote it the meaning it had for the reader when he read it the meaning the reader thought
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it had for the writer when he wrote it the meaning the writer thought it would have for the reader when he read it the
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meaning the reader thought he would have for the writer if the re writer knew what the reader
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does not finished the meaning the right okay you
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get the picture and this can go on indefinitely
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so we get into the whole subject of historical linguistics
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now really all Linguistics is in some sense historical because when you're trying to
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understand language you're always in General trying to understand what
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someone else has said or written in some time in the past might
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be the last five seconds but uh in which case you can probably interrogate the
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speaker or writer and ask what did you mean by that
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but it gets a little more difficult when the speaker are more likely the writer
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has been dead for hundreds of years
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so the problem historical Linguistics then is one we had to solve when it's
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either no longer available to interrogate or there are multiple lawgivers who may have different
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meanings A A law is written in general in the legal jargon of when it was
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enacted and in fact whatever is written in is the legal jargon even even if it seems to be
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ordinary language but natural languages are often
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ambiguous or a certain kind of ambiguity
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polymus in other words many people use a word with more
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than one meaning not just on different occasions but at the one and the same
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time they'll let a word do double or triple or quarle Duty even within the
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same sentence you Define natural language natural language is what human
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beings speak or write on a daily basis as opposed to say
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mathematics it's not connected to natural law now
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then we enter the theory of Mind how do we understand one another not just among people but
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animals anything well if we had two computers communicating to each other and I use
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the same internal code they can simply send messages that they are hardwired to
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know how to interpret so for them understanding may
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be a simple process assuming there's no noise in the communications
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Channel but among human beings or for that matter other living
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beings in general the communications channel is very
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noisy so how do we understand another person
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well we understand some one someone by forming a theory in our minds of what is
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in the minds of that other which we build by confirming or refuting
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evidence from exchanges with the other mind or from accurately anticipating what he will say
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in later messages of his that we have not previously read or
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received in other you've probably known married couples who could compl complete
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each other's sentences they each developed theories of the other person's
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mind you can do that with ancient authors as well where if
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they have a large body of work you can read some of their works and then get into a take on the
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next work and begin to be able to complete the sentences of that author
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before you've ever read them before that's when you begin to have confidence
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that you're thinking the same way that he did if you can completed
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sentences so decoding past messages involves using such Clues as we can find
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to build a theory of Mind of the authors and of the meanings they wish to convey
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we can never be sure what the dead meant or even for that that matter the living
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but we can plausibly narrow it down greatly in most cases to one most likely
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meaning not always but hopefully as often as possible although we may not we
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may need Clues from Beyond the message itself to its cultural
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context so we take Clues wherever we can find them we give greater weight to some
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Clues cles than to others but ultimately we use them to try to converge on a
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theory of the mind of the speaker a writer and of what he meant in that
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message now we get to Legal construction it presents special
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challenges because it is not just about getting the original meaning but about applying it to specific situation
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laws are in general General statements about a class of
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objects to which it then has to be applied by
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instantiating the object now words it's saying all murder
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is to be punished this is a murder therefore this must be
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punished this leads to what I consider an untenable division between questions
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of Law and fact when it is a fact issue whether a law is passed or whether it was a law at
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all judges generally like to maintain a hard separation between law and fact and
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let juries decide only questions of fact
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but if a judge is proclaiming something is a law when it's not
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would any lay person could verify that the legislature never enacted it at
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all then we have to ask ourselves whether that distinction really always
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works constitutional construction then becomes a special and
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more important form of examining judicial decision
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making these principles apply not just to constitutional
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interpretation but judicial generally because not all of them are
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strictly speaking about the
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Constitution interpretation can be based on the text itself it can be based on historical
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background it can be based on a functional analysis of the words by examining the
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structure of the document in other words what function
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does the do these words seem to play Within the document as a
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whole and there are doctrinal considerations
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uh this can range everything from star decises from president or from public
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policy where the there is a disposition to do things a certain way that are may
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may not be in the Constitution but that the judge or the
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lawyers may want to follow then there's presedential credential is for the convenience of the
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court in other words if a court has a large docket where it
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cannot devote enough time to every case to really do justice it may decide look is it better
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to decide all these cases sarily and perhaps wrongly or by taking on each one
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and examining in a death never getting around to most of them and Under Pressure to clear their
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dockets a lot of Judges will not unreasonably conclude that they should
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simply dispose of as many cases as they think they can to hold Injustice to a
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minimum or perhaps not but assuming they're conscientious they hope that
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they won't decide wrongly too often there are also presedential
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considerations such as not wanting to take up a case that's not right for
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argument or that is just producing a legal opinion that doesn't doesn't
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really affect anybody's welfare uh there's a tendency for judges not to
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like declaratory judgments if the the Declaration doesn't
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actually affect anybody's property or monetary situation
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or his well-being or whatever it's simply for his to satisfy his
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curiosity um courts are not just of law they are also
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of equity so if a law is unclear about what to do and it often is
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then in between the lines of the law the court may decide to make an
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equitable judgment and where it's tried to do what's fair even if the Constitution and laws
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provide no clear guidance on how to do that and we see some important cases which
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may may get to in a future lecture of how the cases although build as
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constitutional interpretations were actually credential or Equitable then finally we have natural
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in construction where we're essentially are appealing to natural
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law the law cannot command The Impossible you can't uh the law can't tell somebody
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to uh be in two places at one time is this saying that the the Judiciary by
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the act of making decisions is constructing the Constitution as it goes
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yes and for that matter so is or anybody who construes the
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Constitution is not just judges as we'll see now that doesn't mean we're amending
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the Constitution that's an important distinction and we'll get into
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that so what is strict instruction uh justice Galia has a
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current Bookout in which he denounces strict construction as
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he defines it but he defines it as over
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literalism well that's what its critics say about it but its proponents have a different
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meaning for it and the common law tradition is more complicated than that
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it's not some new doctrine that arose in the 20th century it goes back
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centuries using the very terms strict construction or more precisely strict
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interpretation Powers were to be interpreted strictly and rights against powers
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broadly remember from the first lecture powers and rights are the complement of
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each other so if you interpret Powers strictly then you're interpreting rights
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Loosely so when in doubt the decision must always be against the power and in
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favor of a right again we're talking about rights as a complement of powers not
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contractual rights Now
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intent and the word intent does come from ancient law was not just motive or
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desired outcomes the word the meaning of the word has somewhat shifted over the
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centuries today if you use the word intent the first meaning most people would give it would be psychological
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motive or the intended outcome but in the common law tradition
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it was mainly function discernable from structure I like to use the example of a
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architect of a Gothic Cathedral with flying
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buttresses now the motive of the architect in designing the flying
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buttresses might have been to provide work for his brother-in-law who was a
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flying butress contractor but the functional intent of
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flying buttresses which can be found by examining the design itself without
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inquiring into the mind of the architect is to keep the building from falling
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down and intent meaning and understanding are
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not the same so all these have to be Blended
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together to do construction
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confidently the framers had a vision they were called framers for
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reason they saw Constitution writing like designing a building they saw it as
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a kind of architecture they were it was constrained by natural law and
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Circumstance in other words they weren't free to design anything at
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all it had to work according to laws of Nature and it had to be affordable and
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buildable and safe at least in the short term they had to satisfy those who would
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live in it and that allowed some concessions to
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taste and Convention but were not dominated by them and it had to remain safe for a
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long time not just for those who would live in it initially
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but for those who would come after Generations
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hands the Constitution had to work for men and not just Angels remember
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Madison's famous quote on that we had to solve the problem
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of instituting a government that can govern men but it can also govern itself
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and the tradeoffs involved offer no clean
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Solutions but framers made an assumption that he was had to work for
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men at a level of civic virtue that they had then achieved in their
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lifetimes who designed for men like
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themselves which would endure as long as a virtue did
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which would likely fail if the virtue failed as would any constitution of
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Liberty there is no Constitution that enforces itself no plan of government no
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system that can enforce itself as long as human beings are the principal
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operating units and they don't do their part now if you want have a government
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in which robots or machines do it all then you might overcome that but as long
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as human beings are actually carrying it out executing it then their virtue or
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lack thereof becomes
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dispositive and it depends on the people to understand it they not have to not
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have to only want to enforce it they have to
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know how and to enforce it at Great
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sacrifice perhaps at the risk of their lives and fortunes it can't just be a uh weekend
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Amusement it has to be something that they're so determined to do that they're
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willing to give their lives for it because the odds are at least once every
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generation they probably will have
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to but in the US of 1787 almost everyone and almost every
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settler was literate we sometimes don't appreciate
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that but uh John Adams once remarked to a
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European friends that it' be very hard to press to find anyone in the American
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states that was not literate illiteracy was very rare very
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common in Europe the Europeans were astonished when they came to the United
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States to try to fight it or deal with it or whatever when almost everybody
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they met could read and write but of course part of the reason for that is the people who went over
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there went over there already knowing how to read and write
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that didn't always slaves and women as well uh most women could also read and
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write most slaves of course could
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not but that changed too um many were also acquainted with what
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law there was which was mainly four volumes of blacks St you can hold it in
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one hand all right big change from
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today um there a lot of people who had complete set of Blackstone and read it
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all in that time people bought newspapers with
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political speeches nobody had to spend a lot of money to get elected to public office
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all he had to do was announce and then stand on the street corner giving a
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speech the reporters would take it down word for word and print every word and
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people would eagerly buy it those newspapers the people paid for their own
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political information and the results although
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campaigns then as now could get pretty vicious at least they weren't
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uninformed now most of government consisted of County
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government with one unpaid judge and one unpaid Sheriff doing everything with
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unpaid militia and juries but they didn't of course didn't
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have a lot to do if uh they needed to repair a bridge across
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the creek call up the militia everybody pitched in build the
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bridge and like every everything else they did
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um if there was a problem grand jury convened investigated the problem made
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their decision and the militia took care of it uh
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however shortly after the foundation of the United States the problem began to develop
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that counties were becoming more pop Ulus in
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178 1774 or 1776 the average County was less than
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3,000 people a large city was 15 or
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20,000 that would be considered a small town today you could literally know
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everybody in a big city if you if you moved around a little
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bit uh so Jefferson proposed dividing counties further into
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Wards and moving most government down to the ward level what we call call Ward
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republics most people today live in Anonymous cities a voting Precinct
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contains about as many people 3,000 as the county once did but no government at
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that level now other than for voting grand juries get too many cases
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to deliberate now in those days Grand jurries almost
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never got a criminal case I once went through 20 years of the
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legal records of the entire state of New York from 1776
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onward and I think there were only about three or four criminal
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cases you know of a felonious nature as opposed to say
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misdemeanors entire State Crime was very
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rare uh today a typical Harris County grand
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jury gets me less than 10 minutes to decide each
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indictment um which means means that they don't have enough time to attend to
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investigation of public administration for private complaints in
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California where the function of indictment has been taken away from Grand Jury
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juries the grand juries are left to do nothing but investigate public
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administration and it's probably the only reason why California is not even more corrupt than it
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is but keep trying to hem them in and saying no you can't investigate this or
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you can't in investigate that uh so it's an ongoing struggle I get a lot of calls
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in California about that um and grand juries are unduly
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controlled by Authority prosecutors which is mainly a late 19th
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century Innovation originally most most crimes were prosecuted by private
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citizens usually a lawyer hired by the victim's families or perhaps by a group
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of citizens who got together passed the hat and hired a lawyer to be the
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prosecutor sometimes the judge would just pick a lawyer from the community and say you're Prosecuting this
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case now after grme became more common that became too much of a burden and
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people started instituting the uh Office of Public prosecutor usually called
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district attorney in Most states and for a long time you had a
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choice of public prosecutor or private prosecutor but increasingly the the
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public prosecutors have tried to exclude private citizens from doing private
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prosecutions now many state laws still allow it in Texas the law even provides
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that a private prosecutor can get paid for private prosecution if funds are
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available he's called a prosecutor prot
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temporary and today people are not taught how to serve on
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juries in the middle of the 19th century we have an example of a standard
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textbook basically the entire textbook and this was for what we today call high
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school or you know maybe Junior first year of
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college essentially was all about the Constitution and Ma jury and militia
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Duty was all about he just went through the Constitution line by line and it taught
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you he detail how to be a good jury person person even taught you how to be
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a good militia person how to maintain your weapons how to you know organize a
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militia unit do all these things it's all the standard
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textbook now We inherited our legal tradition
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from England the English Constitution although it's often called
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Unwritten is not strictly Unwritten but it's scattered over many documents in 1200 years much of it
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written in Latin and law French most people today don't know how to
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read and it's subject him being Rewritten by any session of the House of
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Commons which functions a kind of ongoing Constitutional
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Convention that can R write its own rules proposed and approve in one
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day English common law comprised the bulk of English law it consisted of the records of Court
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decisions it needed the doctrine of binding star decises because there was no other
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organizing principle by which the Court decisions can be sorted out and one
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given preference to another as a guide star decises means to just stand
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on what's been decided in other words it's using precedent as a basis for a
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further decision making but learning the law was an endless
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task in England a person wasn't considered fit to try a case in court
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until he studied the law for 20 years he had just go through the law
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libraries full of old cases and go through the cases case after case after
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case and almost any position on any issue could find a supporting
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president that was part of the problem then by
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1776 a you could prove almost anything from a president support almost any
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position so the law became essentially much more at the whim of Judges than it
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had been in decades or centuries previously and the court the colonies
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didn't have their own records They had a few cases a few books
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Blackstone cook so forth but they didn't have
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the la la the law libraries full of law books of commentaries of cases that were
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available in at least major cities in
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England so the colonist felt the need for
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codification and thus constitutions that overrode
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precedents the US Constitution is of course not the first
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I pointed out earlier the states all wrote
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constitutions first experimented with different structures and the US Constitution was
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built on that experience so they had had 13
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Laboratories for constitution writing which culminated in one National
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Constitution
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English there are different kinds of English courts depending on the kinds of relief
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thought common law Equity Admiral D Marshall different court buildings
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different judges you could have a case involving different issues you had to try it in
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one court on one day then go across town to another Court to try to finish it
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uh the two main kinds were common law for torts crimes probate and property
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and equity for injunctions so a common law Court could
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give you judgment that it's your property you'd have to go to an equity Court call a chanelling court to get a
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court order to evict the guy who's squatting on your
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property and of course they could be years separating the
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two Ritz were forms sold by Common Law Courts not just for using Common Law
44:38
Courts they also sold them for Equity courts but they sold these forms there
44:44
was different form for every kind of issue and of course after a while there
44:50
were literally thousands of different kinds of
44:55
rits one would one copy would be filed with the court one served on the
45:01
defendant and one kept by the petitioner so generally you were looking
45:08
at buying at least three copies and you had to pay three
45:13
times the RIT system this RIT system was largely replaced in the United States by
45:22
the field codes about 1840 that's when we went to free form
45:28
pleadings in other words instead of having to buy a form you just wrote your
45:35
own and you're expected to roughly follow the same format and content but
45:42
you didn't have to buy the form now the buying the form still exist
45:48
in one form form which is buying the citation forms that you stick on top of
45:55
a lawsuit before you serve it on the defendant so that the rit in that kind
46:03
of RIT still survives as a citation for now rits are not just court orders
46:12
court orders are a kind of RIT but there are other kinds as well it's mainly the initial filings
46:20
served on the defendant or respondant the what you file is a s the
46:27
RIT because you wrote it it's as simple as that there are three main kinds civil
46:34
criminal and perogative you'll sometimes hear it said
46:40
that there's only civil and criminal but that's not true the burden of proof for the first
46:47
two are on the petitioner the Civil or criminal case
46:52
the petitioner has to has the burden approve in a derogative case the burden
47:00
is on the respondent so they're two quite different Critter you give us an example
47:06
of a prerogative I'll get into that you can trust me most of the qu
47:13
questions I rais in this lecture I will answer further down the
47:19
line okay the burden of proof of the third was on the respondant not the
47:25
demandant and he's not call a petitioner is called a demandant because it's a
47:30
demand it's not a request here are some of the main forms
47:38
of prerogative rits at the top because it's the most General is
47:45
Quanto that's a r challenging Authority
47:50
generally either to hold an office or to do something could be anything
47:59
uh hius Corpus can be thought of as kind of a subspecies of quono where you're
48:06
just challenging the authority to detain somebody
48:13
ribit is a demand that some action stop mandamus is a demand that some
48:20
action be taken and these today are usually discussed in terms of injunctions
48:27
although injunctions generally have a burden on the petitioner and the original prerogative super system the
48:35
burden was on the respondent prendo is demanding faster
48:42
action sir Shari is demanding that the court records be certified so they can
48:48
be presented for appeal on a rid of eror now today most people think of rid
48:55
of sersari as granting an appeal that's not originally what it meant or should
49:03
mean it's a court saying certify the records and send us a copy so that we
49:09
can hear an appeal on it they technically should be a rid of error as
49:15
the actual request for the appeal and there are a bunch of more
49:21
there are probably about 30 40 others but those aren't used very much
49:30
prerogative rits must be heard ahead of other cases that's why they're called
49:36
prerogative U originally they were prerogative because most of them were
49:42
filed by the crown so the Monarch had the prerogative
49:49
but when we went from um monarchy to democracy the people became became the s
49:56
IGN and they inherited the prerogative the respondant must in
50:02
general respond within 3 days unless distance requires more up to 20
50:09
days now that might need to be modified if you're talking about operating Beyond
50:16
one country but in those days the standard which we still inherited was within
50:24
England I figured anybody could respond could get get across from one side of
50:30
England to another in 20 days actually both ways because the the
50:37
written had to be delivered and then it had to be responded
50:42
to no EV arguments or evidence are required of demand it any person may
50:49
demand for any other person or himself there's no question of
50:55
standing anybody body May file a RIT of habus Corpus to free
51:02
anybody The Prisoner doesn't have to file it to free himself doesn't have to be a
51:09
lawyer anybody can file the RIT of habius
51:15
Corpus and let's save our questions until the Q&A period because just take
51:21
notes for now otherwise we won't finish the lecture
51:28
now the relief and it it can be considered a kind of
51:34
relief demanded issues by default if the respondant fails to prove or there's no
51:42
hearing heal if you file a r of quono to an
51:50
official to prove his authority the court has jurisdiction
51:55
it's kind of copy filed said well I don't think I
52:01
want to hear this the loss of
52:06
authority issues immediately at the end of the expiration
52:12
period you can't get a crony judge to just not hold heing as a way of
52:19
sustaining your Authority now of course obviously that
52:25
doesn't work today today it's not the current practice
52:31
today anyone with a background is law will immediately recognize that all
52:36
these things are not happening today and you may want to ask yourself
52:41
whether that's not a problem but in order to understand the
52:49
Constitution as it was originally meant you have to be able to compare and
52:55
contrast what was expected then with what is practiced
53:01
today binding started decisis persists into our current legal
53:08
process is generally Justified on the grounds that judges could not hear all
53:14
the cases that are presented to them if they had to go back and reexamine all
53:20
the arguments for all the cases going back to to the beginning well in most cases they don't
53:27
have to do that in most cases it's not really that much more time consuming to
53:34
go back to historical background and argument then to just
53:39
examine the recent presidents and the arguments the lawyers are going to be
53:45
making for distinguishing them so um I would say that in most cases
53:54
that's not really a valid argument
53:59
but the problem is that if you treat the wrong a wrong president as more
54:05
authoritative than the Constitution what have you done you haven't really amended it but
54:13
in terms of what the courts are actually doing it you're treating it as though it had been
54:20
amended but judges take an oath to uphold the Constitution not president and I've
54:27
heard a federal judge in this town in in a courtroom saying quote I took an oath
54:34
to follow president unquote who judge which one I'd rather not say it right
54:40
now I'll tell you after class that that is the words of the of
54:47
the oath are to U different from clearly different from that yes very clearly
54:56
doubt about it but it gives you an idea of the problems you we
55:05
face so there are two kinds of story decises binding which is a problematic
55:12
one and persuasive binding is logically incompatible with having a written
55:20
Constitution and if anyone doubts that that it is a prob logic
55:26
it doesn't take very long to analyze logic and seeing that you get a
55:32
contradiction if you allow Bing start star decises which violates the principle
55:40
announced in the last lecture that under the rule of law law has to be
55:47
consistent logically consistent butor decises can be
55:55
persuasive if it's only a matter of saying well I agree with the reasoning
56:00
in this case so instead of repeating everything that that this other judge
56:06
wrote I'll just refer to it and say I agree with that guy but that could just as easily be a
56:14
minority or descending opinion if it's more persuasive and
56:19
sometimes it is constitutional review
56:27
is not the exclusive prerogative of Judges they only get cases at a later
56:34
stage the militia Duty which we all have to help enforce the law means the duty
56:40
to resolve conflicts of Law and to enforce the superior law
56:47
especially when that Superior law is the Constitution and then do so
56:54
independently of judges supervis advisers or legal advisors in other words we can seek an
57:01
advice of others but ultimately we are responsible for making that
57:08
decision and we if we get bad advice we that does not absolve us of
57:15
responsibility we are all on our own so we better get it
57:22
right now this last part which we can go through quickly because
57:30
we're about the end of our time period I made a list of almost every
57:39
right I can find now these are rights against the actions of a government not
57:45
just rights you know to receive some scarce resource or some contractual
57:54
benefit uh during the ra ratification debates a lot
58:01
of the states proposed amendments that would list out a bunch of
58:07
Rights and James Madison boil these down to
58:14
about 19 and then Congress committees further
58:20
boil it down to 10 which became the Bill of Rights
58:26
and what they did with a lot of them is they simply lumped them all together into the Ninth Amendment well of course
58:34
in some sense also in the 10th so the the ninth amendment was the
58:41
catchall bucket for all the rights that we don't have want to don't want to take
58:46
the time bother to list out
58:51
explicitly well we have too many judges who look of the Ninth Amendment and say well I don't
58:58
want to go back in history and try to find out what rights they may have had in
59:05
mind if I don't find it in writing I'm not going to recognize
59:10
it and we seen in such things as civil rights legislation enacted under the authority
59:18
of the 14th amendment that although the 14th Amendment speaks about State violation
59:26
of of All rights or any right what the courts have been doing is
59:32
waiting for Congress to pass a statute protecting right a right B right C right
59:39
d and if it's not mentioned in the statute ignoring it now once in a while they'll exceed
59:47
that but they try to avoid it
59:53
well I decided that what was really needed if they're going
59:59
to take that position is to adopt a civil rights act
1:00:05
that just lists all the rights anybody has ever thought
1:00:10
of and I have a list of constitutional rights on a Blog blog P page and here it
1:00:19
is extracted he goes to 18 Pages by the way
1:00:27
and what I how I arrived at that is I went
1:00:32
through all the commentaries by Blackstone and cook and Britain and
1:00:38
praon and feta I went through case after case after case and I've got a lot of these
1:00:46
you know ancient well we considered ancient law books
1:00:52
online just go through every time somebody identified a right I pull it up
1:00:58
write it down then I try to boil it down to to make organize it to systematize it to
1:01:06
group them into groups of related rights one important group is due
1:01:13
process so let's just go through due process rights here
1:01:22
okay now we due process for criminal trial
1:01:30
s for civil trials and for
1:01:35
appeals now we have another category that I call
1:01:40
non-authority this is a general right not to have government do things that it
1:01:46
is not delegated power to do a I call it a presumption of
1:01:52
non-authority
1:02:02
next section is supervision of government actors we have a general right to
1:02:09
supervise our servants that means we have to be able to observe them we have to get reports
1:02:15
from them about their proceedings their expenditures tax receipts all the things
1:02:22
that they do uh so that we can figure out if they're doing their jobs
1:02:31
right and then we necessarily have a bunch of others which don't NE easily
1:02:38
fall into the other categories so I've lumped them down
1:02:46
here and finally on I have my own catchall the foregoing loss is not
1:02:52
exhaustive and further rights Privileges and Immunity are to be found in the historical record
1:02:59
the rule of expressio punos EX exclusio alteras shall not be applied that means
1:03:07
that this is not factious these are the rights that you believe we should have yeah okay and I think you'll recognize
1:03:14
most of them as rights you think we have if you don't you're probably a
1:03:21
little unusual but if you think about it you probably recognize hey yeah we have
1:03:26
that right hav't thought about it but yeah um what this Latin phrase means is
1:03:35
that if you make a list of something and something is not included in the list it
1:03:41
doesn't exist that was the main argument against
1:03:47
the Bill of Rights that if you listed rights in the Bill of Rights somebody would interpret that to
1:03:54
mean that if it's not listed we don't have it so they adopt the Ninth
1:04:00
Amendment to say this is list is not exhausted we've got a bunch
1:04:06
more well this is the equivalent of the Ninth Amendment but now with most of the
1:04:12
rights that were thought of as the being referred to of the ninth amendment being
1:04:20
extracted and made explicit
1:04:27
so that takes us to the end and let so stop the camera
1:04:33
momentarily
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