Tom Burrell

Good (men) hate to sin by love of virtue, wicked (men) by fear (of pain).
Boni oderunt peccare amore virtutis, mali timore.

If you cannot drive an ox, drive  a donkey
(si bovem non possis, asinum agas) #quote

Here is a draft introduction from my forthcoming work, A Story of Privileges and Immunities: From Medieval Concept to the Colonies and United States Constitution, for the fall 2011 issue of the Campbell Law Review

     Commentators often advocate that privileges and immunities language found in the United States Constitution represents authority for some right along the spectrum of natural law, the Bill of Rights, or fundamental law in general.  This paper provides contextual background for the argument by examining medieval royal privileges and immunities and tracing the crown’s charter to the American colonies and the United States Constitution. This article goes beyond merely providing a short background for the use of the language in revolutionary pamphlets and the U.S. Constitution; rather, this article discusses the concept of royal privileges and immunities and traces its growth in England and influence on the colonies.  Along the way, useful comparisons are made between English institutions and American institutions.

     In early English history, landholders owed customs and services to the state, and from these burdens, the crown, by charter, granted privileges and immunities.  Royal privileges and immunities to municipalities and merchant associations gave authority, for example, to have markets and fairs, to trade, to travel, and to exercise self-government.  In this first section, following a brief introduction of feudal tenure and royal immunities, the article discusses the development of mercantile institutions and borough governance. 

     The second part of the article discusses adventuring merchants and the extension of municipal institutions to overseas merchant voyagers.  When Europe expanded its boundaries in the late fifteenth century, royal charters permitted explorers such as Christopher Columbus and John Cabot to load ships, travel from England, and discover foreign lands.  After the discovery and exploration of new lands, explorers received privileges to establish trading colonies.  In this section, charter privileges and immunities to early American proprietors are introduced and discussed.  Unlike charters to trading associations, grants to proprietors in the latter part of the sixteenth century focused on colonization as well as commercial interests. 

     The third part of the paper discusses the influence of English institutions in colonial America. Under royal charters, three types of colonies and a variety of English institutions took root in America.  Among other topics, this section discusses tenure, colonial governance, and the colonial assembly.  The colonial assembly was an instrumental force in colonial development as colonists sought to free themselves from royal and proprietary control. 

     The fourth part of the paper examines the emergence of the “privileges and immunities of Englishmen” concept and traces its influence in the colonies.  The seventeenth century was a period of revolution and transformation.  In the first part of the seventeenth century, Englishmen invoked the “liberty of the subject” to combat royal monopolies.  Once introduced, the concept served advocates and pamphleteers in a variety of ways.  Revolutionaries felt their rights as natural-born Englishmen entitled them to the benefit of ancient statutes and fundamental law.  When this concept, supported by similar but distinct clauses in colonial charters, reached the colonies, colonists argued that they too enjoyed the privileges and immunities of English subjects and thus enjoyed the same rights and law as subjects resident in England enjoyed, including the right to be free from taxation without consent. 

     English taxation without colonial representation was a major precipitant to the American Revolution.  Following Independence, the colonies no longer needed to reference the privileges of Englishmen.  Nonetheless, the privileges and immunities concept made the text of the Articles of Confederation (“free inhabitants shall be entitled to all privileges and immunities of free citizens in the several States”) and the United States Constitution (“the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States”).  After the Civil War, similar language found its way into Section One of the Fourteenth Amendment (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”).  When drafting these documents, framers provided little comment on what “privileges and immunities” meant or how the language should be used.  Commentators and courts have argued that these provisions are self-executing grants of natural law, confer specific rights such as the right to travel and the Bill of Rights, or protect fundamental law in general.  Summarizing the history and concept of the phrase, this article concludes by offering a contrary interpretation of the language. 

(footnotes omitted)

I’ve yet to buy an e-reader.  I’m waiting for the right one.  I want an e-reader that can render scanned pdfs into text-based pdfs and allow the user to search, bookmark, annotate, highlight, and copy-and-paste from the reader as he or she is reading along.  I would like the copied selections to be pasted into a word document in block quote formatting with a pinpoint reference from the source of the quote.  The reference should be customized to the Bluebook or another style manual at the user’s selection.  With the exception of converting scanned pdfs, I think all of the other goals are within the reach of any of the current readers.

This comparison isn’t new for someone who studies the issue.  I stumbled across the language and felt compelled to post the text.  The Citizenship Clause of Section One of the Fourteenth Amendment:

 All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

 Section One was proposed by the Reconstruction Congress to constitutionalize the Civil Rights Act of 1866.  The Citizenship Clause of the Civil Rights Act of 1866:

 That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States;

 Unless one finds clear congressional intent defining “subject to the jurisdiction” to be different than “not subject to any foreign power,” I would conclude that the clause of Section One was intended to mean the exact same thing as the clause in the CRA of 1866.

The American Colonies were a rough place to live prior to the American Revolution.  Mortality rates were high and the agricultural life was rough.  Conflicts with Indians cost many lives. 

 Settlers in the northern colonies came to America to escape religious intolerance.  Notwithstanding this fact, the colonies they formed often discriminated more so than the country from which they fled. 

 Colonies of New England, to a certain degree, controlled who could settle in their lands, and this discrimination often involved religious affiliation.  Many New England colonies required church membership to be a full member of society.  But only certain churches were approved.  Many colonies despised the Quakers and would not allow them to settle in the colony.  Roger Williams, famous for his stance on religious freedom, openly despised the Quakers and felt they represented the downfall of government.   

 Beyond rhetoric, anti-Quakerism was the official law and policy. When Quakers landed in Boston in the 1650s, they were seized and imprisoned under harsh terms.  Eventually they were expelled.  Massachusetts further fined or imprisoned masters of any ship found bringing Quakers into the colony. 

 Any Quaker found in the colony was imprisoned, publicly whipped or humiliated, and set to labor.   Quakers were forbidden from assembling and were fined oppressive amounts if they were to speak at a public meeting.  Defiant, Quakers expelled from the colony often returned to speak publicly.  But additional banishment upon returning to the colony was not enough.  Those returning might lose their ears.  Other New England colonists wanted death for the rebellious Quakers, a punishment common for Catholic priests.   Compelled to present themselves and their religion to the forces of New England, many banished Quakers returned and met immediate execution.

1 Herbert L. Osgood, The American Colonies in the Seventeenth Century Ch. 5 (1904).

The San Francisco District Court opinion in the same-sex marriage case, Perry v. Schwarzenegger, has generated a lot of criticisms.  Others have focused on self-serving prejudice, the selection of “expert witnesses,” and the judge’s crediting everything on the favored side and discounting everything from the other side (the voters of California).  But my main criticism runs much deeper, and the Perry opinion is but a descendant in its family tree. 

Reading the first 109 pages of “evidence” and “finding of facts,” any lawyer—or non-lawyer for that matter—should be struck by the subjective aspect of the judge’s judicial review of the legitimacy of Proposition 8.  Readers should be asking themselves: Why is a judge interjecting his views on the issue?  Who made the judge the censor?  Why is this issue even in court? 

By what authority does a judge step into the halls of the legislature, or in this case, the homes and minds of the voters supporting Proposition 8, and evaluate their decision to limit marriage to a union between one man and one woman?  The short answer: you’ve heard it before, unrestrained activism supported by judicial invention built upon judicial invention.

Contrary to Perry, the voters of California should not have to defend their evaluation of the same-sex marriage issue, i.e., their literature, their version of the “evidence” and “findings of facts,” their version of what “dwarfs” what or what “fatally undermines” what.  The California voters, at war with the judiciary, had the issue presented to them, and they voted—not once, but twice—to limit recognized marriage as the union between a man and woman.  And so have many voters in other states.  

Under our modern-day judiciary, courts intervene and sit as a superlegislature to view the reasonableness of enacted legislation.  The process is conveniently masked in terms and doctrines such as “equal protection” and “due process” from the Fourteenth Amendment.  These concepts entered the legal picture with a different meaning.  “Due process of law” was aimed at preventing arbitrary executive action contrary to established law of the land.  “Equal protection” was not an all-things-equal concept, but an equal-administration provision aimed at protecting newly freed slaves at a time when they were being denied the benefit of enacted laws. 

But crafty judges, operating free of meaningful sanction, have found a way to increase their jurisdiction by drawing greater substance out of these procedural safeguards.  “Due process” and “equal protection” now give the judge not the ability to ensure that the enacted law or procedure is enforced but a subjective jurisdiction to determine whether the enacted law is, in effect, fair, reasonable, good, or beneficial to the common weal in the eyes of the judge, e.g., to void legislation correlating with low “warmness scores.”  Through the use of substantive due process and substantive equal protection, judges have superimposed their value system on the legislature and the people.    

In this particular chapter of judicial activism, the judge in Perry concludes, among other things, the moral foundation supporting Proposition 8 is insufficient to justify its enactment under the Fourteenth Amendment.   The judge, grouping moral and religious beliefs, cites for his secular-only view of legislation, no surprise, the judicial inventions stemming from Everson v. Board of Education.  The full criticisms of that opinion will have to wait for another post, but in short, setting aside the incorporation objection for now, the Supreme Court in Everson and its progeny selected one particular viewpoint of one particular state and recast the entire establishment-free exercise jurisprudence in concepts extracted from that viewpoint.  Why choose the Jefferson-Madison “Wall of Separation” from Virginia as the starting place for “establishment” and “free exercise” of the First Amendment?  There were other states with different views of church-state relations during the founding generation.  Travel back through colonial and English history and map the complaints of “established” religion along a spectrum: the use of the motto “In God We Trust” on one end and the execution of disfavored believers on the other.  I think you’ll find the latter more accurately describes the character of the establishments the framers sought to avoid.  Following Everson and subsequent opinions, the federal courts are like religion exterminators, baiting, drawing out, and annihilating the mere presence of faith in the public sphere.  A cross on a flag, a cross on a hill, a religious motto, the examples fill the volumes of the Federal Reporter. 

Contrary to the judge’s view, it is perfectly acceptable for the voters of California to vote for Proposition 8 on moral grounds, just as it is for the voters to ban murder.  California has had marriage laws on the books both before and after the enactment of the Fourteenth Amendment.  Under Perry and the emerging values of the social elite, marriage laws limiting marriages to a union between a man and a woman violate a fundamental right and create an impermissible classification.   The court, applying the rational basis-strict scrutiny framework, held that the voters’ classification was irrational, did not have any legitimate purpose, and failed all judicial scrutiny standards.   If you detect cynicism in the presentation thus far, it is intentional.  “Rational basis,” “strict scrutiny,” “intermediate scrutiny,” “exceedingly persuasive scrutiny,” . . . “fill-in-the-blank scrutiny,” they are all mere examples of gilded pills.  Throughout history, you’ll find descriptions of the authority of legislatures to legislate for the common welfare, including legislation with moral considerations.  In the late nineteenth century, following the hijacking of the Fourteenth Amendment, judges converted a simple description of the police powers of the legislative branch into a judge-made checklist–clenching jurisdiction for the judge to exercise reasonableness review of the legislation at issue.  This jurisdiction eventually mutated into the permutations of scrutiny.  Once you swallow the invented scrutiny framework, you’ve already started the devolution from representative government to judicial hegemony. 

Under current scrutiny standards, judges have positioned themselves to presume “suspect” legislation is unconstitutional unless proven otherwise.  In this light, the judge is like a master playing fetch with his dog.  The first step for the judge, applying his or her personal, socioeconomic, and ideological preferences, is to decide how far to throw the stick.  If the judge is bored with the issue, or the minority view doesn’t have the backing from the social elite, the judge will probably give a small throw.  We’ll call this a “rational basis” throw.  If the issue is controversial, ripe for a judicial hero, the stick gets a far throw, past several invented “constitutional” criteria including “history of discrimination,” “little political power,” “contribution to society,” and “any other social or economic criteria.” We’ll call this a “strict scrutiny” throw.  The next step is for the master to yell “fetch!” 

Fetching adequately is not an easy task for the defender of legislation.  Often, the state must compellingly traverse these same “constitutional,” eye-of-the-beholder criteria.  (Throw the stick a little farther, “moral foundations” are insufficient.)  If the state hasn’t fetched or defended its legislation adequately to the satisfaction of the judge, the legislation is unconstitutional “beyond a reasonable doubt.”  Presto, a landmark opinion! 

Constitutional or unconstitutional . . .  seems like a three-page opinion with caption, not a 138-page opinion.  Granted, a three-page opinion doesn’t serve the judicial enforcement of the Bill of Rights well as those provisions, originally aimed at limiting the potential tyranny of the federal government, were rather open-ended.  Despite the breadth of the Bill of Rights, early courts didn’t fill volumes with judicial opinions invoking the Bill of Rights to find federal laws unconstitutional.  This is explained by a healthy judiciary and by the fact that a federal government limited to enumerated ends would not run afoul of the Bill of Rights.  Following the Fourteenth Amendment and the judicial incorporation invention, a self-executing Bill of Rights more or less applies to the states via the judiciary.  And now we have activism run amok.  The inversion of the Bill of Rights, from a high fence to curb feared federal centralization to a fortress for judicial power possessing a far greater centralization, has created and entrenched the very tyranny—in the hands of an oligarchy—the framers sought to avoid.  

Contrary to the modern judiciary and the Perry opinion, constitutions were not designed to make the legislature the dog and the judge the master.  The framers, perhaps naively, contemplated judicial review, but that was judicial review of a different variety.  Overtime, the judiciary, like unkept English Ivy outgrowing its pot, has consumed democratic government.  If the social elite want same-sex marriage, take it to the polls—again.

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside…”  Section One of the Fourteenth Amendment.

We know that the citizenship clause of Section One of the Fourteenth Amendment was designed to overrule the Dred Scott decision.  It was also thought to be an affirmation of the common law–that a person born in the colonies was an Englishmen (U.S. citizen).  The leading English case of the birth-right doctrine–Sir Edward Coke’s opinion in Calvin’s Case, 77 Eng. Rep. 377 (1608)–albeit mostly extrajudicial, brings the “affirmatory” nature of the citizenship clause into question. 

The investors, adventurers, traders, and settlers who colonized this country were developing an undeveloped country.  As a natural default, they strove to make America as much like England as possible, less certain controversial feudal obligations and specific elements of religious intoleration. 

During the adolescence of the American colonies, questions arose concerning the rights of settlers and the applicable law.  By aspiration and interpretation, and with the support of charter language, colonists, to a greater or lesser degree, incorporated English common law and (at least the more notable) English statutes into the law of the plantations. 

When favorable to their interests, colonists claimed they were freeborn Englishmen and thus entitled to the privileges and immunities of English citizens.  The colonists’ attachment to the concept of birth rights was so strong that it survived the colonial period, the American Revolution, and judicial scrutiny during the first seventy five years of the nation.   

After the Civil War, Congress and the states adopted and ratified the Fourteenth Amendment to grant citizenship rights to the newly freed slaves.  The citizenship clause of Section One was promulgated to directly overrule the Dred Scott decision.  The language was thought to be declaratory or an affirmance of the common law. 

But as enunciated in Calvin’s Case, English law on birth rights was more complicated than simple birth equals citizenship.  Robert Calvin was born in Scotland after James VI of Scotland had inherited the throne of England, becoming King James I.  The question of the case was whether a subject of Scotland born after James I inherited the throne was also a subject of England and capable of suing in English courts and inheriting property.  The opinion meanders greatly, but its discussion of the citizenship concept is clear.  Citizenship attached when the person held allegiance and obedience (ligeantia and obedientia) to the sovereign.  77 Eng. Rep. at 384.  Lord Coke expressly countered a birth-equals-citizenship holding by illustrating examples in which the native-born children of parents, either invading the country or who were enemies of the country, were not natural-born subjects because the birth was missing allegiance and obedience to the sovereign.  77 Eng. Rep. at 384, 399, 406-07.  Further, a couple’s sojourn “in amity” into England, which resulted in child birth, would make the child a natural-born subject where the parents, though temporarily in England, were in allegiance and obedience with the sovereign.   77 Eng. Rep. at 383, 384.    

We still have the language of Section One.  But it looks like the framers of the Fourteenth Amendment glossed the leading birth-right opinions without recognizing any of the exceptions. 

Cognizant of the Fourteenth Amendment and ostensible concerns of applying an early seventeenth-century opinion to a twenty-first-century problem, the opinion in Calvin’s Case suggests that an illegal alien crossing the Arizona border and having a child would not produce a natural-born American entitled to citizenship.  The child, because of the illegality of the parents’ presence, would not be in amity, allegiance, or obedience with the sovereign, the United States in this case.

A sad business fell out this year in Boston.  One of the brethren of the church there, being in England in the parliament service about two years, had committed the care of his family and business to another of the same church, (a young man of good esteem for piety and sincerity, but his wife was in England,) who in time grew over familiar with his master’s wife, a young woman no member of the church,) so as she would be with him oft in his chamber, etc., and one night two of the servants, being up, perceived him to go up into their dame’s chamber, which coming to the magistrates’ knowledge, they were both sent for and examined, (but it was not discovered till about a quarter of a year after, her husband being then come home,) and confessed not only that he was in the chamber with her in such a suspicious manner, but also that he was in bed with her, but both denied any carnal knowledge; and being tried by a jury upon their lives by our law, which makes adultery death, the jury acquitted them of the adultery, but found them guilty of adulterous behavior.  This was much against the minds of many, both of the magistrates and elders, who judged them worthy of death; but the jury attending what was spoken by others of the magistrates, 1. that seeing the main evidence against them was their own confession of being in bed together, their whole confession must be taken and not a part of it; 2. the law requires two witnesses, but here was no witness at all, for although circumstances may amount to a testimony against the person, where the fact is evident, yet it is otherwise where no fact is apparent; 3. all that the evidence could evince was but suspicion of adultery, but neither God’s law nor ours doth make suspicion of adultery (though never so strong) to be death; whereupon the case seeming doubtful to the jury, they judged it safest in case of life to find as they did.  So the court adjudged them to stand upon the ladder at the place of execution with halters about their necks one hour, and then to be whipped, or each of them to pay 20 pounds.  The husband (although he condemned his wife’s immodest behavior, yet) was so confident of her innocency in point of adultery, as he would have paid 20 pounds rather than she should have been whipped; but their estate being but mean, she chose rather to submit to the rest of her punishment than that her husband should suffer so much for her folly.  So he received her again, and they lived lovingly together.  All that she had to say for herself upon her trial was the same which she had revealed to her husband as soon as he came home, before the matter had been discovered, viz. that he did indeed come into bed to her, which so soon as she perceived, she used the best arguments she could to dissuade him from so foul a sin, so as he lay still, and did not touch her, but went away again as he came; and the reason why she did not cry out, was because he had been very faithful and helpful to her in her husband’s absence, which made her very unwilling to bring him to punishment or disgrace.

 1645.

2 John Winthrop’s Journal, History of New England 257-58 (J.K. Hosmer ed. 1908).

Carpe diem (“seize the day”) is a popular Latin saying.  Horace often used nature as a metaphor for his expression to live in the moment before old age.  Here are two poems from Horace which provide context for his use of the phrase. 

Vides ut alta stet nive candidum Socrate nec iam sustineant onus silvae laborantes geluque flumina constiterint acuto? 

Dissolve frigus ligna super foco large reponens atque benignius deprome quadrimum Sabina, o Thaliarche, merum diota. 

Permitte divis cetera, qui simul stravere ventos aequore fervido deproeliantes, nec cupressi nec veteres agitantur orni. 

Quid sit futurum cras, fuge quaerere, et quem fors dierum cumque dabit, lucro appone nec dulces amores sperne puer neque tu choreas, donec virenti canities abest morosa. 

Nunc et campus et areae lenesque sub noctem susurri composita repetantur hora, nunc et latentis proditor intimo gratus puellae risus ab angulo pignusque dereptum lacertis aut digito male pertinaci. 

***

Tu ne quaesieris (scire nefas) quem mihi, quem tibi finem di dederint, Leuconoe, nec Babylonios temptaris numeros.  Ut melius, quicquid erit, pati, seu plures hiemes seu tribuit Iuppiter ultimam, quae nunc oppositis debilitat pumicibus mare Tyrrhenum: sapias, vina liques et spatio brevi spem longam reseces.  Dum loquimur, fugerit invida aetas:  carpe diem, quam minimum credula postero.

Translation

Do you see how the bright Socrates mountain stands with deep snow, [how] no longer the laboring trees sustain the burden [of deep snow], [how] the rivers freeze in the sharp, biting cold? 

Thaliarche, thaw the frozen wood above the fireplace, freely replenish [with fresh wood] and more freely take out four-year-old true wine from the Sabine jar.

Leave other things to the gods, who at the same time calm wrestling winds over boiling waters, [such that] neither cypress tress nor ancient ash trees are agitated. 

What may be tomorrow, escape [from thinking] to ask, and whatever fortune of days [sort of day] it will bring, credit as profit, and do not spurn sweet romances [while as a young] boy or sweet dances, while irritable old age is absent [from you] in [your] youth. 

Now [while old age is absent] let the fields and open areas and subtle whispering at night be sought at the arranged hour, and now let the laughter of the girl, pleasing to the innermost, traitor to [her] hiding in the corner [be sought], and now let the keepsake snatched from the upper arm or lightly resisting by a finger [be sought].

***

You, do not seek (to know the unspeakable) what end the gods will give to me, to you, Leuconoe, and do not attempt the tables of Babylon.  How much better, whatever will be, to suffer, whether Jupiter grants more winters or whether [this is] the final [winter], which now weakens the Tyrrhenian sea on opposing cliffs: You should be wise, purify the wines and since the space [of life] is short, you should prune far hopes.  While we speak, envious time will escape: seize the day, as little as possible trust in the next [day].

Horace, Odes, Book 1:9,11