Adam J. MacLeod, Author at Law & Liberty https://lawliberty.org/author/adam-macleod/ Mon, 16 Jun 2025 14:23:29 +0000 en-US hourly 1 https://wordpress.org/?v=6.8.1 226183671 A Charity Case https://lawliberty.org/a-charity-case/ Tue, 17 Jun 2025 10:00:00 +0000 https://lawliberty.org/?p=67942 State supreme court justices often must resolve difficult issues in hard cases. No one expects them to get every hard case right. But judges who faithfully adhere to their oaths of office are unlikely to make obvious errors in easy cases whose issues are governed by clear rules and settled precedents. So, what is going […]

The post A Charity Case appeared first on Law & Liberty.

]]>
State supreme court justices often must resolve difficult issues in hard cases. No one expects them to get every hard case right. But judges who faithfully adhere to their oaths of office are unlikely to make obvious errors in easy cases whose issues are governed by clear rules and settled precedents. So, what is going on in Wisconsin?

Last week, in Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission, the Supreme Court of the United States reversed a ruling of the Supreme Court of Wisconsin. A unanimous US Supreme Court ruled that Wisconsin’s high court had rationalized religious discrimination by Wisconsin officials in violation of the First Amendment. Writing for the Court, Justice Sotomayor observed that this was not a hard case.

A charitable explanation for the Wisconsin ruling is that a majority of Wisconsin’s justices suffer deep jurisprudential confusion. The court committed three major errors. All three errors are conceptual as well as legal and constitutional. And all three errors matter because they are incompatible with constitutional rule and ordered liberty.

The case arose under a Wisconsin law that requires employers to pay taxes into a scheme of unemployment insurance and exempts religious, nonprofit employers. The Catholic Charities Bureau claimed this tax exemption. But the Supreme Court of Wisconsin decided that Catholic Charities’ charitable ventures are not “operated primarily for religious purposes,” as state law requires. The court acknowledged that Catholic Charities and its subsidiaries are motivated by an explicit Christian mission and are governed by the bishop of a Roman Catholic diocese. But the court asserted that these religious institutions “offer services that would be the same regardless of the motivation of the provider.” The court concluded that Catholic Charities’ “activities are primarily charitable and secular.”

The Wisconsin court held that it did not violate the First Amendment to withhold the exemption from Catholic Charities. A dissenting justice charged that the court’s reasoning “excessively entangles the government in spiritual affairs, requiring courts to determine what religious practices are sufficiently religious under the majority’s unconstitutional test.” But the majority disagreed. “The review we endorse in this case is a neutral and secular inquiry based on objective criteria, examining the activities and motivations of a religious organization.”

The Wisconsin court also insisted that its holding would not infringe Catholic Charities’ free exercise rights. Catholic Charities can afford the tax. To require Catholic Charities to participate in the state’s unemployment compensation scheme, therefore, did not place a “constitutionally significant burden” upon its religious exercise, the court concluded.

Religious liberties are not contingent on sovereign will, Justice Thomas insisted.

In reversing, the justices of the Supreme Court of the United States unanimously held that the Wisconsin ruling was not neutral between different religions, as long-established First Amendment doctrine requires. The Establishment Clause, as the US Supreme Court has interpreted it over several decades, prohibits governments from favoring any religion over any other. This rule of “denominational neutrality,” as the Court calls it, requires strict scrutiny of any law or application of a law that distinguishes between religions, treating one more favorably than another.

Wisconsin violated the neutrality rule. To affirm that violation was the Wisconsin court’s first error. “There may be hard calls to make in policing that rule,” Justice Sotomayor acknowledged, “but this is not one.” Wisconsin officials engaged in a “paradigmatic form of denomina­tional discrimination.”

Wisconsin drew a line between religious charities based on “theo­logical differences in their provision of services.” Wisconsin deemed Catholic Charities and its affiliates ineligible for the tax exemption “be­cause they do not ‘attempt to imbue program participants with the Catholic faith,’ ‘supply any religious materials to program participants or employees,’ or limit their charita­ble services to members of the Catholic Church.” On that reasoning, Catholic Charities “could qual­ify for the exemption while providing their current charita­ble services if they engaged in proselytization or limited their services to fellow Catholics.” But Catholic Charities and its affiliates argued that Catholic doctrine forbids them to use “works of charity for purposes of prose­lytism” and requires them to serve everyone. The burden on religious exercise is obvious.

The implications of this first error for ordered liberty are profound. The problem is not mere favoritism. A state supreme court that arrogates the power to draw the boundary between religious and non-religious activities by religious associations has seized the power in principle to nullify the religious freedom of those associations by defining their free exercise of religion out of legal and constitutional existence.

Writing a separate concurrence, Justice Thomas identified a second error of the Wisconsin court. Catholic Charities Bureau operates through a separate corporation from the Diocese that oversees it. For the Wisconsin majority, this meant that Catholic Charities is a separate “organization” from the Church, and the Church’s religious motivations, therefore, were irrelevant in ascertaining Catholic Charities’ primary purpose.

As Justice Thomas observed, that “hold­ing contravened the church autonomy doctrine,” another well-established constitutional rule. It requires Wisconsin’s courts “to defer to the Bishop of Superior’s religious view that Catholic Charities and its subentities are an arm of the Diocese.” Religious institutions have a First Amendment right to structure their legal affairs in the manner best suited to their own ecclesial governments, theological doctrines, and practical, legal needs. The Supreme Court of Wisconsin has no power to decide which corporate structure is sufficiently religious for a church’s ministries.

The Wisconsin court’s legal error, Thomas explained, was to identify the association of charitable Roman Catholic believers with the legal structures that the association uses to carry on its business. The Roman Catholic Church “is a single worldwide religious insti­tution,” not a legal sub-entity incorporated in the state of Wisconsin. Though the Wisconsin justices acknowledged that the Bishop of the local Diocese directs Catholic Charities and controls its affairs, they nevertheless “viewed Catholic Charities and its subentities as distinct, nonreligious or­ganizations merely because they are separately incorpo­rated.”

The Wisconsin court’s conceptual error was, in Justice Thomas’s words, to think of “religious institutions as nothing more than the cor­porate entities they have formed.” Churches and other religious communities have an existence of their own, which is not reducible to their formal, legal structures and not contingent upon the laws of a state or judgments of secular officials. Whether its rights and obligations are secured by a corporation, a trust, or some other legal fiction, a religious group exists in reality, independent of its recognition in positive laws and legal and equitable judgments.

Justice Thomas pointed out the implications of this conceptual error for civil liberties and the rule of law. Quoting an 1835 decision of the Vermont Supreme Court, Justice Thomas explained, “To conclude that a religious institution has no existence outside its corporate form ‘would be in effect to decide that our religious liberties [are] dependent on the will of the legislature, and not guar­anteed by the constitution.’” Religious liberties are not contingent on sovereign will, Justice Thomas insisted, because “religious institu­tions are a parallel authority to the State, not a creature of state law.”

The majority of justices of the Supreme Court of Wisconsin are not equal to the powers that they arrogated. Secular courts have no legal or constitutional competence to adjudicate questions of canon law, religious or theological doctrine, or ecclesiology. And as the Wisconsin majority opinion illustrates, elite lawyers often lack professional competence to address such questions, as well. Most of the top law schools no longer require law students to learn jurisprudence and legal history, much less canon law. And increasing numbers of lawyers have no meaningful experience of religion.

A society comprised of charitable persons is immeasurably better off than a society whose members only do what they are obligated to do.

Thus, it is not surprising that most of the Wisconsin justices misunderstood religion. Not all religious people proselytize. Though the Christian religion involves evangelization, winning converts is neither the totality of the Christian religion nor its essence. The Christian life consists of acts of obedience. “If you love me, keep my commandments,” Jesus of Nazareth instructed his followers. Among those commandments are several injunctions to perform acts of charity. God will reward those who give food to the hungry, drink to the thirsty, and clothes to the naked. If anyone demands your shirt, give him your coat as well. Above all, love your neighbor as you love yourself.

The Wisconsin justices committed a third conceptual error, which the justices of the US Supreme Court did not correct—indeed, Justice Jackson compounded this error in a separate concurrence. They misunderstood charity. In the minds of the Wisconsin justices, the “religious motivation” for Catholic Charities’ charitable work was “not enough to receive the exemption” because non-religious organizations can provide the same services. The charitable services, therefore, “are secular in nature.”

In this line of reasoning, the justices identified charity according to its outward action and effect, without regard to its motivation. They identified the relevant “activities” as “job training, placement, and coaching, as well as services related to activities of daily living.” Whether these valuable ends are pursued for “religious or secular motivations,” the justices speculated, “the services provided would not differ in any sense.” Therefore, they concluded, the services are activities of a “wholly secular endeavor.”

That conception of charitable action, identifying charity with its effects and consequences, mistakes the character of charity. A charitable intention is what makes an act charitable. To be charitable is to intend to give what one has a right to retain, and to yield up one’s rights with no claim or expectation of reciprocity, for the sole reason that the recipient will benefit. Paying taxes and making payrolls of social services agencies are not acts of charity. Donating time and money that one has no duty to give, so that another may learn or eat, is charity.

Because it is the intention that makes an act charitable, the primary values of charity are moral and spiritual, not pragmatic. As Thomas Aquinas taught centuries ago, acts of charity, such as almsgiving, have an internal effect on the soul of the almsgiver, bearing the “spiritual fruit” of loving another person more than riches. And such acts can also generate gratitude and benevolence in the recipient.

Charity’s moral value is its central aspect. Charitable acts certainly can produce what Aquinas called “a corporal effect, inasmuch as they supply our neighbor’s corporal needs.” But what makes charitable action so valuable, and a chief reason why we extend to charitable actors so many special, legal privileges and immunities, is that charitable actions make charitable persons. And a society comprised of charitable persons is immeasurably better off than a society whose members only do what they are obligated to do.

Is charity religious? In theory, charity can be secular. Every human being has the capacity for charity. But in practice, charity is a religious phenomenon. Viewing the full sweep of human history reveals that charity is a distinctly religious virtue and almost exclusively a religious activity. While many societies throughout history have practiced hospitality and altruism, the Jewish and Christian religions invented charity. And it was Christian societies that placed charity in the mainstream of civic life and gave it a unique place in our fundamental law.

By redefining charitable action according to its material effects, rather than its intention and spiritual value, the Wisconsin majority attempted to make charity commensurable to non-charitable forms of poor relief. This false equivalence opens the door to threats to ordered liberty. If government welfare programs, social engineering projects, or other secular, non-charitable endeavors can produce equal or better results, and if it is the results that matter, then those in power may decide that we can do without charity. If we don’t need to preserve rights to perform charity, then officials may decide they don’t need to respect the autonomy of charitable associations. And we may end up with more rulings like that of the Supreme Court of Wisconsin.

The post A Charity Case appeared first on Law & Liberty.

]]>
67942 https://lawliberty.org/app/uploads/2025/06/Madison-WI-state-capitol-bldg_shutterstock_2291228061.jpg
The Jury Trial Right in Discrimination Cases https://lawliberty.org/the-jury-trial-right-in-discrimination-cases/ Mon, 04 Nov 2024 11:00:00 +0000 https://lawliberty.org/?p=62304 For over a decade, one of the hottest fronts in the culture war has been the most unnecessary. So-called “wedding vendor cases” now include not only conscientious florists and photographers but also nuns operating parochial schools, churches running colleges, and charitable ventures facilitating adoption. The scenario always plays out the same. The service provider happily […]

The post The Jury Trial Right in Discrimination Cases appeared first on Law & Liberty.

]]>
For over a decade, one of the hottest fronts in the culture war has been the most unnecessary. So-called “wedding vendor cases” now include not only conscientious florists and photographers but also nuns operating parochial schools, churches running colleges, and charitable ventures facilitating adoption. The scenario always plays out the same. The service provider happily serves all people, regardless of their race, ethnicity, religion, sexual orientation, or gender identity. But a customer or employee demands that the service provider use his preferred pronouns or affirm that his same-sex relationship has the nature of a marriage, an act that would make the service provider complicit in what she understands to be a morally significant falsehood. There ensues the unvarying accusation: Discrimination!

The resulting conflict is often waged in a so-called “civil rights” or “non-discrimination” commission. This is a recent innovation, created by statute or local ordinance in many communities to investigate, prosecute, and adjudicate allegations of unlawful, private discrimination. In our law, such claims have always been tried by a jury. But these commissions do not use juries; the commissioners make their own findings and determinations. Indeed, commissioners often serve as investigators, prosecutors, judges, and juries.

For example, Colorado’s Civil Rights Division investigates discrimination allegations throughout the state. On its website, the Division promises to complainants, “Our staff assists aggrieved parties who want to file a formal complaint of discrimination with CCRD by drafting their allegations into a legal charge. The charge is served on the Respondent and the investigative process is initiated.” The Respondent receives no such assistance. The Division reports cases to the Civil Rights Commission, which is technically a separate entity but is overseen by the same department of state government. The Division and the Commission publish a joint annual report. The Commission has both rule-making and adjudication powers, including the power to compel the attendance of witnesses. Either the Commission or any single commissioner may initiate a case by filing charges. And the Commission’s attorneys prosecute the case on behalf of the complainant. The Commission provides no legal counsel to the accused.

This commission is inaptly named. Its mission is not to avoid but to find discrimination. And in the wedding vendor cases, it invents a discriminatory motive when the accused is innocent of any. It was no surprise when, in one high-profile case, the US Supreme Court admonished the Colorado Commission for its lack of neutrality.

Religious wedding vendors, churches, and nuns do not discriminate because of a person’s sexual orientation or gender identity. Their reason is to avoid communicating what they understand to be an important falsehood; it is not that the accuser identifies as gay or transgendered. Yet judges and discrimination commissions always find an illegal motive. They then heap fines and scorn on the school, nonprofit, order of nuns, or small business for refusing to participate in cultural confusion about marriage and human sexuality.

For example, Barronelle Stutzman, proprietor of Arlene’s Flowers, had long served Robert Ingersoll, knowing that he was in a same-sex relationship. The two became friends. When Ingersoll asked Stutzman to provide flowers for his same-sex wedding, she refused. Her religious convictions teach her that marriage is a man-woman union. In a suit that the Attorney General of Washington filed against Stutzman and her flower shop, a state trial judge acknowledged that it was undisputed that Stutzman served Ingersoll repeatedly over a nine-year period, “knowing both that Ingersoll was gay and that the arrangements were for Ingersoll’s same-sex partner.” Stutzman did not discriminate because of Ingersoll’s sexual orientation, which is what state law prohibits. Nevertheless, the judge refused to send the case to a jury and ruled that her conduct was discriminatory as a matter of law.

A civil jury is far more competent than a discrimination commission to adjudicate discrimination claims correctly as a matter of fact and law.

Discrimination commissions in Colorado, Massachusetts, New Mexico, and elsewhere have drawn the same conclusion from similar facts. These skirmishes are both unnecessary and constitutionally illicit. A civil jury is far more competent than a discrimination commission to adjudicate discrimination claims correctly as a matter of fact and law and to avoid zero-sum conflicts of constitutional rights. And both parties have a right to have the dispute tried to a jury, a right that the commission denies to them.

Trial by a jury in one’s community is one of the most important and fundamental civil rights of our legal and constitutional tradition. England’s repeated infringements of the right were a chief cause of the American Revolution. The right attaches not only to all criminal proceedings but also to all common-law causes of action. The Seventh Amendment to the US Constitution secures the right in “suits at common law,” and preserves the civil jury’s exclusive fact-finding power under the “rules of the common law.”

State constitutions also declare and secure the jury trial right. Many state constitutions stress that the right is “inviolate” and some include a jury trial clause in their due process provisions, making clear that the jury trial is a fundamental security for natural rights of life, liberty, and property. And they connect the right to common law rights and claims explicitly. For example, Maryland’s jury trial provision declares:

That the Inhabitants of Maryland are entitled to the Common Law of England, and the trial by Jury, according to the course of that Law, and to the benefit of such of the English statutes as existed on the Fourth day of July, seventeen hundred and seventy-six; and which, by experience, have been found applicable to their local and other circumstances, and have been introduced, used and practiced by the Courts of Law or Equity.

Scholars disagree about the extent of nondiscrimination duties at common law. Some scholars assert that business owners who hold their premises, goods, or services open to the public have no right to refuse admission or service to anyone at common law. Justice Sotomayor endorsed that assertion in her dissent in 303 Creative LLC v. Elenis. But as I have shown in a lengthy examination of the question, the assertion is not true. Common law duties of nondiscrimination and the rights of businesses to exclude are more complicated and responsive to the lawful expectations of the parties, as I will explain below.

What is not controversial—what all the legal scholars and all the justices writing in 303 Creative agree is true—is that a cause of action alleging that a business or non-profit organization has discriminated unlawfully originates in the common law. The action is known as assumpsit. It is predicated on a property owner’s granting permission to customers to enter the business premises. Because it is a common law claim vindicating common law rights, both parties have a constitutional right to have the claim tried to a jury of their peers.

The common law recognizes different assumpsits, all tailored to the scope of different licenses. A person or business who undertakes to provide goods or services for another on an individual basis has made a special assumpsit. Examples are a lawyer taking on a client and a theater selling individual tickets to audience members. The customer’s license is unique to the individual customer and remains contingent on the will of the owner. If the owner revokes the license and the customer refuses to leave then the customer becomes a trespasser. As the US Supreme Court explained in Marrone v. Washington Jockey Club (1913), this license confers no property rights on the customer. “It is true that, if the contract were incidental to a right of property either in the land or in goods upon the land, there might be an irrevocable right of entry; but when the contract stands by itself, it must be either a conveyance or a license, subject to be revoked.”

The common law knows a different class of undertaking, known as a general or universal assumpsit. This class includes two types, common carriage and what we today call public accommodation. An offer of access, goods, or services in this class is held out to the public at large. The owner may terminate the license with respect to any particular potential customer, but only for what Blackstone called a “good reason.” If the provider refuses service or access on arbitrary grounds—for reasons not related to the goods or services offered— then he may be held liable.

Since the Civil War, many state legislatures and city councils have enacted statutes and ordinances codifying these common law doctrines. Today, most claimants in discrimination cases simply cite the relevant statute or ordinance as authority for their claim. But, as I showed in an earlier law review article, a nondiscrimination statute does not generate the rules against unreasonable discrimination. Rather, as the Michigan Supreme Court explained in an 1890 decision, the statute is “only declaratory of the common law”:

The common law as it existed in this State before the passage of this statute, and before the colored man became a citizen under our Constitution and laws, gave to the white man a remedy against any unjust discrimination to the citizen in all public places. It must be considered that, when this suit was planted, the colored man, under the common law of this State, was entitled to the same rights and privileges in public places as the white man, and he must be treated the same there; and that his right of action for any injury arising from an unjust discrimination against him is just as perfect and sacred in the courts as that of any other citizen.

As Blackstone explained a century earlier, an owner who holds out a universal assumpsit to the general public may refuse services as long as she offers some valid reason. And as the Michigan court observed, race is never a valid reason. With respect to the goods or services on offer, race is arbitrary. At common law, what other reasons are valid depends on the facts of the case. Thus, except in cases of racial discrimination, the reasonableness of the owner’s refusal is a question for the jury.

Modern non-discrimination statutes often add new categories of invalid motivations for a refusal of service: religion, sex, and sometimes sexual orientation and gender identity. Nevertheless, the right against discrimination remains a common-law right. And the ultimate question is the reasonableness of the refusal. Racial discrimination, for instance, is not made unreasonable because a statute makes it illegal: It is invalid because it is unreasonable. Nuns and florists often have good reasons to refuse to affirm controversial cultural assumptions about marriage and sexuality. But racial discrimination is always because of race. And race is not a good reason for any business decision.

Furthermore, in all cases of universal assumpsit, there is always the fact question of what the owner’s motivation was. To resolve that question requires credibility determinations and, above all, entering into the internal point of view of the nuns, church, family, or non-profit board who operate the public accommodation. Those too are jobs for a jury. So today, even where a statute authorizes a discrimination claim, it is the jury’s job first to find the business owner’s actual motivation as a matter of fact and, second to determine as a matter of law the validity or invalidity of the owner’s reason.

The right to a jury trial is guaranteed by both federal and state constitutions as a security for all natural and common law rights and in all suits at common law. A discrimination suit against the owner of a public accommodation is a suit at common law implicating both natural and common law rights. When discrimination commissioners adjudicate those suits and substitute their findings and conclusions for those of a jury, they infringe the jury trial right. The commissions are creating constitutional conflicts unnecessarily. And their conduct is itself unconstitutional.

The post The Jury Trial Right in Discrimination Cases appeared first on Law & Liberty.

]]>
62304 https://lawliberty.org/app/uploads/2024/10/The_Jury_1861-e1728951699850.jpg
Good Deeds Unpunished https://lawliberty.org/good-deeds-unpunished/ Mon, 22 Jul 2024 10:00:00 +0000 https://lawliberty.org/?p=59784 On March 8, 2022, police officers in Bullhead City, Arizona, arrested Norma Thornton for serving home-cooked meals in a park near her home. The city charged her with violating an ordinance that essentially prohibits anyone from sharing food on public property for charitable purposes. Under that ordinance, individuals may share food on public property for […]

The post Good Deeds Unpunished appeared first on Law & Liberty.

]]>
On March 8, 2022, police officers in Bullhead City, Arizona, arrested Norma Thornton for serving home-cooked meals in a park near her home. The city charged her with violating an ordinance that essentially prohibits anyone from sharing food on public property for charitable purposes. Under that ordinance, individuals may share food on public property for any purpose whatsoever, so long as their motivations are not charitable or they are charging money. Thornton was not trying to profit in any way. She was motivated only by a desire to feed the hungry. That made her a criminal. 

Although still uncommon, similar ordinances have appeared in several American towns and cities since the 1980s. As cities grapple with homelessness and broken families, several of them have tried to contain the most obvious symptoms. Bullhead City’s ordinance explains that when homeless and impoverished people gather in public places to obtain food from people such as Norma Thornton, the city is “called to address public nuisance and other illegal behavior, clean-up human waste, litter, trash, and other debris.” The city found that charitable food-sharing causes a “deterioration” of public parks.

Cities own public property in trust for the whole community. They have obligations to protect health and safety, and food-sharing ordinances may be constitutionally valid as applied in certain cases. But direct prohibitions on the selfless use of property, especially when employed to feed the hungry, burden the right to make charitable uses of one’s property. In a forthcoming law review article, we argue that this right is fundamental and that courts may protect it where constitutions secure private property and other fundamental rights. The right is implicated when governments place burdens on the charitable activities of individual persons and non-profit organizations.

A Long and Venerable Tradition

The right to make charitable uses of one’s property is deeply rooted in the history and tradition of Anglo-American law. It therefore qualifies as a fundamental right under the test used by the US Supreme Court in Washington v. Glucksberg and other cases. We do not make this claim lightly. 

In our forthcoming article, we demonstrate that there is a very long history and tradition of enforcing and protecting the right of individuals to engage in acts of charity using their property. Affirmation of the righteousness of personal generosity extends back to ancient Greece and Rome is prevalent in the Hebrew Scriptures, and is a central teaching of the Christian New Testament. The right to charitably dispose of one’s property—especially to feed the hungry—has long been protected as a matter of English and American law. Indeed, it is common for governments to pass laws encouraging such activities. And though governments throughout history have occasionally placed incidental burdens on charitable activities, it is almost unheard of for them to attempt to restrict charitable uses directly. A few illustrative examples should help to establish the point. 

The right of charitable uses has always survived attempts by political sovereigns to infringe on it. Throughout the history of the common law from the time of the Norman Conquest until the seventeenth century, the occasional efforts by the crown to wrest rights of charitable uses from nobles, the Church, and others eventually ended in failure. 

The Normans brought primogeniture to English soil in the eleventh century. This doctrine prohibited most charitable uses of land because it required succession of the entire estate to the eldest son. The crown would recognize no testamentary devise of any property right greater than a term of years. And while primogeniture prohibited devises of freeholds in land, the jurisdiction of Church courts over the movable property of dead men imposed limitations on charitable bequests. 

To solve those problems, lawyers invented two legal tools, which became and remain today part of our fundamental law: the use and the trust. The “use” was a particular legal right whose chief benefit was to make property rights alienable. Being outside the common law, uses were unenforceable in the crown’s courts. But from early in the fourteenth century, the Church enforced them in ecclesiastical courts, which provided justice when secular, common law did not. Later, the Chancellor assumed the role of providing justice when law fell short. An owner would entrust to a friend the task of making a charitable donation, and the court of chancery enforced such uses in equity. Thus, the trust was born. In the centuries since, countless property owners have established trusts large and small for the benefit of other people.

The next property dispute to burden charitable uses was the battle between the nobles and the Church over Church ownership of land. Feudal lords fought hard to prevent the Church from acquiring real property rights. The decisive contest was waged between 1279 and 1301. By Edward I’s Statute of Mortmain in 1279, the king and Parliament attempted conclusively to prevent donations of land to the Church without royal consent. This law indirectly affected charitable uses because the Church was the center of charitable activity in England and the enforcer of the general obligation to act charitably. Indeed, Englishmen were sometimes prosecuted in ecclesiastical courts for not making adequate contributions to relieve the suffering of the poor. 

Note that the purpose of this law was not to prevent charitable uses of property. Instead, the goal was to prevent rights in land from falling into the hands of corporations, especially religious corporations. In the end, even this limited attack on charitable uses failed. While Edward was waging an unpopular war, the Church joined with a number of aggrieved subjects and successfully persuaded Edward to affirm the ancient liberties of the Church and other property owners. He reaffirmed Magna Carta in 1298, and again in 1299, 1300, and 1301, confirming repeatedly that the Church’s liberty and its property rights were the fundamental, common law of the land. 

Later attacks on property rights, especially by Henry VIII, also failed to destroy the right of charitable uses. Confiscation of church property made private charity more important. Laws prohibiting almsgiving were not enforced, and the backlash resulted in the most definitive statement of the right to act charitably—the Charitable Uses Act 1601. The Act identified uses of tangible and intangible property entitled to enforcement in equity because they were deemed to be charitable, due to their alleviation of poverty, illness, and other misfortunes, or for their promotion of education and other public goods. The very first use on the list is “for Releife of aged impotent and poore people.” Under the Act, even a devise to a corporation is valid as long as it is for charitable uses.

Virtually all colonies and later states had laws protecting the Christian Sabbath, and almost without exception they exempted from these statutes works of “charity” or “mercy.”

Since the seventeenth century, English and American courts have continually taken it for granted that charitable uses of property are lawful and shall be enforced according to the intentions of the donor absent fraud or other violation of fundamental law.

Development of the Right in America

From the earliest settlements in Jamestown and Plymouth through the present day, American civic and religious leaders have emphasized the importance of helping those in need. Indeed, before he even stepped foot in America, John Winthrop preached a sermon aboard the Arbella entitled “Christian Charity: A Model Hereof” (1630), wherein he reminded his fellow Puritans that relations between the rich and the poor must be governed by the rules of “justice and mercy.” Notably, he specifically encouraged his fellow believers to “deale thy bread to the hungry and to bring the poore wander into thy house, when thou seest the naked to cover them.” 

Exhortations by early American political and religious leaders to care for the poor may be multiplied almost indefinitely, and we give numerous examples in our full-length article. But here we want to focus on ways that legislators protected the right to make charitable uses. Early Americans of European descent were very religious people, specifically Christian, and even more specifically Protestant. Many were committed to following biblical admonitions, including the Fourth Commandment: “Remember the Sabbath day, to keep it holy.” But colonial officials, from north to south, did not rely on citizens to voluntarily keep the Sabbath; they required them to do so. 

Virtually all colonies and later states had laws protecting the Christian Sabbath, and almost without exception they exempted from these statutes works of “charity” or “mercy” (the two terms are interchangeable in this context). So, for instance, the colonies of Massachusetts, Rhode Island, and South Carolina exempted from Sabbath legislation works of “necessity and charity,” Maryland “Works of absolute necessity and Mercy,” New Hampshire “works of Necessity and Mercy,” and Delaware “Works of Necessity, Charity, and Mercy.” Later, the states of Massachusetts, Georgia, North Carolina, Rhode Island, New York, New Jersey, Delaware, Virginia, Georgia, Florida, Alabama, Mississippi, Tennessee, Kentucky, Missouri, Ohio, and Michigan exempted acts of “necessity and charity” and Pennsylvania, Connecticut, and New Hampshire exempted acts of “necessity and mercy.” Requiring respect for the Christian Sabbath was very important for early American legislators, but not important enough to prohibit charitable acts on the Lord’s day.

In the centuries since, states and then the federal government have made pro-active efforts to protect other acts of charity and mercy. For instance, a rise in civil litigation in the mid-twentieth century precipitated concerns that private citizens would not attempt to help their fellow citizens facing a medical emergency for fear of being held liable. To address this concern, California legislators passed the nation’s first Good Samaritan law in 1959. Every state has since followed its lead. So has the United States Congress. California’s current law expresses the “intent of the Legislature to encourage other individuals to volunteer, without compensation, to assist others in need during an emergency, while ensuring that those volunteers who provide care or assistance act responsibly.” Note the intent is to encourage individuals to help others in need. 

Similarly, Congress passed the Volunteer Protection Act of 1997. Like California’s Good Samaritan Statute, it clearly affirms that:

The purpose of this Act is to promote the interests of social service program beneficiaries and taxpayers and to sustain the availability of programs, nonprofit organizations, and governmental entities that depend on volunteer contributions by reforming the laws to provide certain protections from liability abuses related to volunteers serving nonprofit organizations and governmental entities.

Americans have long been concerned with alleviating hunger, but in the twentieth century, farmers, businesses, restaurants, and other individuals and organizations that produce or process food hesitated to donate excess food to the needy for fear of being held liable should someone get sick or die after consuming it. To address these concerns, California passed the nation’s first Good Samaritan food donation law in 1977. The law limits donors’ liability except in case of “gross negligence” or willfully harmful acts. Within a decade, every state passed a similar law, although there were significant differences between them. Congress standardized these protections with the Bill Emerson Good Samaritan Food Donation Act (1996). According to the USDA, the act: 

establishes Federal protection from civil and criminal liability for persons involved in the donation and distribution of food and grocery products to needy individuals … [who] donate in good faith apparently wholesome food or apparently fit grocery products to a nonprofit organization for ultimate distribution to needy individuals. The Act also provides protection against civil and criminal liability to the nonprofit organizations that receive such donated items in good faith.

States may give additional protections to donors, but not detract from the federal standard. By protecting farmers, gleaners, restaurants, grocers, manufacturers, and other food suppliers, the act has undoubtedly encouraged many donations of food.

The laws discussed in this section provide exemptions to otherwise neutral laws of general applicability that might keep people from engaging in charitable activities. State and national legislators obviously believed they advanced important interests when they passed laws protecting health and safety, but they understood that there is an even greater interest in permitting citizens to fulfill what they consider to be their moral or religious duty to help others. The state and national governments also incentivize charitable giving in many ways (e.g., permitting such gifts to be deducted from income taxes). 

Anglo-American law has long encouraged the ability of private citizens and organizations to engage in acts of charity, especially the ability to feed the hungry and provide for the needy. As with any right, the right of charitable uses is not unlimited. But outright bans on the charitable preparation and serving of food in public places infringe the right of charitable uses even more directly than the anti-almsgiving laws of the fourteenth and sixteenth centuries. Other laws that interfere with charitable uses less directly may be less obviously unconstitutional. But the right itself is deeply rooted in our nation’s history and tradition.

Editor’s note: An expanded version of this essay will appear in the Mississippi Law Journal, a draft of which may be viewed here.

The post Good Deeds Unpunished appeared first on Law & Liberty.

]]>
59784 https://lawliberty.org/app/uploads/2024/07/homeless-man-eating-charity-food.png
Rights, Duties, and the Universal Declaration of Human Rights at 75 https://lawliberty.org/rights-duties-and-the-universal-declaration-of-human-rights-at-75/ Fri, 08 Dec 2023 10:58:00 +0000 https://lawliberty.org/?p=52670 Rights have gone off the rails. The anniversary of the Universal Declaration of Human Rights is a fitting occasion to consider how they were derailed and how they may be placed back on track. The Declaration contains both the source of the problem and the intellectual resources to fix it. Crafted amidst the echoes of […]

The post Rights, Duties, and the Universal Declaration of Human Rights at 75 appeared first on Law & Liberty.

]]>
Rights have gone off the rails. The anniversary of the Universal Declaration of Human Rights is a fitting occasion to consider how they were derailed and how they may be placed back on track. The Declaration contains both the source of the problem and the intellectual resources to fix it. Crafted amidst the echoes of a classical jurisprudential tradition that associated rights with just action, the Declaration rests partly on a solid foundation of natural justice. But it was also built amidst the optimistic obsessions of a modern time and its footings awkwardly reach over looser soil.

Modern Rights Talk

Rather than directing us to reason together and act justly toward each other, contemporary “rights talk” (the term that Harvard emerita professor Mary Ann Glendon influentially used to describe what now passes for civic discourse) directs us to shut up and get on board with elite social assumptions. Many assertions of human rights circulating today are in fact mere assertions of desire. Not all desires count equally. Rational desires for the good, the true, and the beautiful are minimized. The human rights industry privileges the appetites of adults over the needs of children, immediate fears over enduring institutions, and the preoccupations of myopic experts over practical wisdom.

That is not the only problem. Our rights commissars also equate contingent entitlements with true human rights. Entitlements to high-paying jobs and Internet access are placed on the same rhetorical and jurisprudential level as universal rights not to be murdered and enslaved. Supreme Court justices and their ardent admirers in the press, academy, and bar use the same words to describe legal immunities for abortionists which thoughtful jurists use to describe the right not to be killed intentionally and the dignity of republican self-government. This inflation of contingent entitlements devalues true human rights.

True Rights Are Reasons for Action

The problem is not with rights. The concept of rights is not a modern innovation springing from an ideology of radical individualism and opposed to the common good, as some conservatives have mistakenly charged. For centuries, our jurisprudence identified rights as the reasons we have to act justly toward other people. To read Cicero, Justinian, William Blackstone, James Wilson, Robert Jackson, and John Finnis is to be immersed in a jurisprudential tradition in which rights function to direct our practical reasoning toward the ends of natural and legal justice.

A true right is a type of what moral and legal philosophers call reasons for action. A right is an especially binding and conclusive reason to act or refrain from acting in some particular way toward some particular person. The point of view from which rights have meaning is that of the duty bearer, the person who is obligated to do what is right. From that perspective—call it the practical point of view—we can distinguish between genuine human rights and contingent imposters. True human rights tell us what we owe to each other, what we must in justice do and refrain from doing, and to whom we owe our various duties.

Rights correlate with and identify the content of duties that persons owe to other persons. To take a simple example, suppose that we make a contract: I will pay you $5 for a turkey sandwich. If you perform the contract by delivering a sandwich to me then you now have a right to be paid $5 by me, which is to say that I have a duty to pay $5 to you.

Not all rights are that particular. Rights may be reasons of either natural justice—natural rights—or legal justice—legal rights. Rights of natural justice are the same for everyone in all circumstances. The rights not to be murdered, slandered, maimed, tortured, or enslaved are all examples of natural rights. Every human being has these rights.

Some natural rights are universal also for those who must obey them. Our duties to honor the absolute, natural rights of others are not contingent upon our circumstances, our relationships, or our prior promises and commitments. Because such rights always correlate with duties to refrain from committing certain actions—duties of abstention—all of us can honor and obey natural rights simply by doing nothing.

Nor are natural rights contingent on law. Everyone has the natural right not to be slandered or libeled even in the United States, whose Supreme Court forbids states to enforce the common law of defamation. Everyone has the right not to be enslaved even in states that tolerate slavery.

The Universal Declaration contains many apt expressions of true human rights. If we will attend to the juristic tradition that gave us its best features then we can again use rights to achieve justice in our communities.

Rights in the Universal Declaration

Many provisions of the Universal Declaration reflect this classical conception of human rights as universal reasons for action.

  • Article 4: “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.”

That is to say that every person bears a duty not to enslave any other person.

  • Article 5: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

That is to say that every person bears a duty not to torture any other person.

Notice that the duties that correlate with those universal rights are duties to refrain from action. All truly universal rights correlate with duties of abstention because only duties not to act can be owed by all persons to all persons in all circumstances. By contrast, duties to provide some good or benefit to another person are always contingent on the availability of time and resources; the lack of prior, competing obligations; consistency with other legal duties; and much else.

What Went Wrong?

Modern rights discourse first went wrong when it began placing entitlements to desirable things on the same jurisprudential track as true human rights. Note that in my earlier example your right to $5 was contingent on our contract and your performance. You have no right to collect $5 in the abstract. You may desire, long for, even desperately need $5. You may have plans to spend the money on something truly good. But the desirability or value of the money does not alone justify its assertion as a right against any person or community of persons. You must prove a legal right.

In contrast to natural rights, legal rights and other conventional entitlements are not the same for everyone, everywhere, in all circumstances. Because most practical problems can be solved in a variety of ways consistent with natural reason, and because most solutions are contingent upon a host of particular circumstances and facts on the ground, rights to have good things must be made particular and concrete by some coordinated human action or institution, such as custom, promise, or law.

Modern rights discourse takes a shortcut past legal rights. It stipulates the desirability of some end and then confers on it the status of a human right. This does not move practical reasoning toward just conclusions. Rather, it detours practical reasoning toward politically- and culturally-privileged ends, always at the expense of other human goods, and usually to the injury of law.

Unfortunately, the Universal Declaration contains some assertions of this mistaken sort. For example, Article 15 declares, “Everyone has the right to a nationality.” To adopt the practical point of view is to see that the statement is obviously false. Imagine a group of people living in primitive conditions on a remote island who have no national identity, no national conventions, and no institutions that function like a state. Who has a duty to give them a nationality? By what means? By what authority? There are no universal answers to such questions.

In this way, the Universal Declaration started modern rights discourse down a wrong track. The Declaration went further off course by reversing the practical perspective of rights from the acting person to the right bearer. Alongside true natural rights such as the duty of the state to protect the natural family (Article 16) and the duty never to compel any person to belong to an association (Article 20), the Declaration lists contingent entitlements such as rights to “social security” (Article 22) and “protection against unemployment” (Article 23).

Demands for desirable ends as rights trade on the prestige of natural rights. The assertion of a good thing as a human right makes the demand look more universally justified than it is. Every person has desires, and many of those desires are rational, oriented toward good ends. That is what the so-called rights of education and universal healthcare have in common with true natural rights, such as the rights not to be killed and enslaved. But that is all that they have in common. The verbal formula “a right to an education” does not answer any of the practical questions that we must answer if such a right is to have any meaning in our practical deliberations, choices, and action.

Post-modernists made the next wrong move, conflating sub-rational desires with rationally-desirable goods in the prioritization of human rights. In critical theories, rights turn inward to focus on subjective experiences and desires. When the desires of elites require acting unjustly toward politically marginalized human beings, such as unborn babies and religious minorities, the putative champions of human rights clothe unjust acts of wrongdoing in the rhetorical cloak of rights.

The point at which we went off track is also the point from which we can move in the right direction. The Universal Declaration contains many apt expressions of true human rights. If we will attend to the juristic tradition that gave us its best features then we can again use rights to achieve justice in our communities.

The post Rights, Duties, and the Universal Declaration of Human Rights at 75 appeared first on Law & Liberty.

]]>
52670 https://lawliberty.org/app/uploads/2023/11/shutterstock_488226595-scaled-e1700016669624.jpg
Still Alive and Well https://lawliberty.org/still-alive-and-well/ Tue, 03 Oct 2023 10:01:00 +0000 https://lawliberty.org/?p=50263 In an insightful essay, Jim Harper asked whether common law survives in the age of statutes. After the “orgy of statute making” that concerned Judge Guido Calabresi two generations earlier, Harper colorfully worries that the “jetties and bridges created by statute law discourage” the further development of common law’s “bottom-up rule-making.” But he understandably hesitates […]

The post Still Alive and Well appeared first on Law & Liberty.

]]>
In an insightful essay, Jim Harper asked whether common law survives in the age of statutes. After the “orgy of statute making” that concerned Judge Guido Calabresi two generations earlier, Harper colorfully worries that the “jetties and bridges created by statute law discourage” the further development of common law’s “bottom-up rule-making.” But he understandably hesitates to endorse “Calabresi’s proposal to reverse errant statutes.”

Good news: Textual interpretation and the common law are friends, not enemies. The problem is not in the law. Nor is it in (most) statutes. The problem is in legal and judicial education. We do not need activist judges to restore practical reason in the law. All we need are judges who are trained and disposed to see it there.

First, we need to recover a correct understanding of what the common law is. It is not judge-made law. That dogma has dominated American legal education for a century, but it is more false than true. It originated in the ideology of Oliver Wendell Holmes, Jr. and Legal Realists such as Karl Llewellyn who insisted that common law is essentially judicial power.

Their strong aversion to what Holmes called moral concepts was really an attack on the basic elements of the common law—rights, duties, and wrongs—the reasons that motivate sound judicial decisions. Their narrow conception obscures those reasons and reduces all law to zero-sum contests of power. Law is either judicial power, exercised in judicial decisions, legislative power, expressed in statutes, or executive power, which produces administrative regulations and rulings. Executive power may remain under the law (except in cases of emergency or war) insofar as it is the power to execute the law made by legislatures. But judicial decision-making is just legislation by other means, done on a case-by-case basis.

A basic premise of the common law, understood on its own terms, is that law stands prior to and independent of political power. Common law determines valid judgments, not the other way around. Common law has a number of elements and it certainly contains legal concepts articulated by jurists. But when well formed, the presumptions, maxims, rules, and other legal doctrines that judges employ to resolve cases refer to pre-existing legal realities, conventional and natural.

Elements of Common Law

One element of common law is immemorial custom. It consists of those norms and institutions that have governed us, in the words of the jurists, from a time when the memory of man runs not to the contrary. That is not entirely a legal fiction. Some common law rights and institutions, such as the presumption of innocence and trial by jury, are truly immemorial. We do not know when they began.

A second element of the common law, sometimes referred to as the law of reason, is known more broadly as the natural law. Common law is neither just nor even mostly natural law. Indeed, the common law is selective about which aspects of the natural law are included. Those reasons of the law that can be specified only in one way—what some jurists of the ius gentium referred to as the necessary law—set guard rails around judicial reasoning.

American jurists have been somewhat more fastidious about this than English ones. They exclude from the law’s approval not only mala in se wrongs, such as murder and defamation, and all deprivations of inalienable rights, such as enslavement and assisted suicide, but also abuses of private rights. But even cases of abuse of rights are limited to those in which the defendant acted out of pure malice toward a neighbor. Mixed motivations are not actionable. The common law forbids acting from the worst motivations and otherwise leaves people free to order their lives as practical reason directs them.

Customary law builds upon natural law. This is seen most clearly in those doctrines that are not shrouded in immemorial usage but rather exposed to the eyes of history. These doctrines also pre-existed the judges who first recognized them as sources of obligation.

We can (and the great legal historian Frederic Maitland did) locate the origin of the trust in the fourteenth century. Landowners and lawyers devised it to provide for younger children and charitable causes in spite of the Norman law’s insistence that the estate must pass to the oldest son. With the doctrine of assumpsit, from which we get our modern doctrines of common carriers, contracts, and public accommodations, we can be even more precise. It was born fully developed in 1602 when courts ratified a legal practice that had been gestating within the action of trespass on the case since 1285.

In both of those examples, as in so many other areas of the common law, courts did not create the common law. Instead, they recognized and declared existing legal and moral realities, norms, and institutions that people already believed they had an obligation to obey. When the chancellor enforced trusts in equity he did so because the trustees really were bound in conscience as a matter of natural justice. And assumpsit is predicated on the belief that people are obligated to fulfill their promised undertakings.

Judges whose education begins with Justinian and Aquinas, Hale and Blackstone, Kent and Story, rather than with the decisions of other judges, are equipped to perceive the common law within the positive enactment that they are obligated to interpret.

Statutes and the Common Law

Statutes also contribute to the common law but not in the sense of displacing it. Statutes come in two varieties. Remedial statutes alter some proposition of the common law, add a new proposition, or provide a new remedy or sanction for wrongdoing. Declaratory statutes restate existing common law doctrine, usually in more definite and precise terms.

Most statutes and constitutional texts are declaratory of the common law and the best judges interpret them in its light. Statutes governing intellectual property, cyber security, and data privacy; the Fourth Amendment; and other posited enactments that concern Harper are nested within and dependent upon long-standing common law rights and institutions.

Patent and trademark statutes, trade secret acts, and commercial codes function precisely to the extent that lawyers conceive of the rights they secure as property, contract, and tort rights. For much of American history, patents, trade secrets, and other intellectual property rights were vindicated by the same common law writs that protected rights in tangible property. And the doctrines that have developed to implement those statutes follow the same structure and logic as earlier, common-law doctrines. To take the example that Harper favors, cyber trespass is fruitfully understood as a kind of trespass to chattels because data resources are correctly understood as personal property. As Justice Gorsuch observed in his dissent in Carpenter v. United States, while the Court’s gloss on the Fourth Amendment eliminates private rights in data entrusted to third parties, basic property doctrines such as bailment and tenancy preserve them.

Even remedial enactments do not displace the common law. The common law covers the whole range of human activity and all of its parts support all its other parts. To displace the entire common law with respect to even one subject, such as data privacy or trade secrecy, would require a statute that is equally comprehensive and equally attentive to all the demands of practical reason.

Trade secrecy is not just a matter of deciding who may use which innovations and business methods in commerce. It also implicates and implicitly rests in the entire complex of common law norms and institutions: jury trials; the presumption of innocence, domicile, jurisdiction, due process, and damnum absque injuria (the doctrine that law does not provide a remedy for all losses); bailments, licenses, possessory rights, and contracts; actual and constructive notice; remedies derived from the law of torts and the maxims of equity … in short, everything. No matter how ambitious a remedial statute is, it cannot eradicate the common law from even one area of legal practice.

The problem is not statutes. The problem is how judges read statutes. The Legal Realists and Critical Legal theorists who have dominated American legal education for a century deny that custom and reason can impose legal obligation. The formal justifications that judges offer for their decisions, including customary and natural law, are façades that cover judges’ own assessments of social advantage (the Realist view) or judges’ racialized, gendered, or class preferences (the Crit view). Educated by Realists and Crits, many elite lawyers who grow up to be judges are thus immersed from the beginning in a profound skepticism of customary law and the law of reason.

By contrast, judges whose education begins with Justinian and Aquinas, Hale and Blackstone, Kent and Story, rather than with the decisions of other judges, are equipped to perceive the common law within the positive enactment that they are obligated to interpret.

The terms of the law are not arbitrary, though they are artificial. The vast majority of legal terms either refer to or take for granted established jurisprudential concepts, which in turn summarize centuries’ worth of common-law practice and practical wisdom. For example, the legal concept that makes the common law analysis in Justice Gorsuch’s Carpenter dissent hang together is the bailment, a property right with deep roots in common law reasoning. A bailment is a kind of property created when an owner vests custody of some thing in another person, known as the bailee, as in, leaving a suit at the dry cleaner, a car at the mechanic, or an email with an internet service provider. Both the bailor and the bailee have the right to exclude third parties from the thing, and they have this right from the character of the bailment itself without the need for extensive contract negotiations. Neither the Fourth Amendment nor data privacy protection statutes mention bailments expressly. But they don’t abrogate them, either. The bailments are there for those who have eyes to see them.

On this front, the Alabama judiciary is a model. In recent years I have been privileged to facilitate jurisprudence seminars at the Alabama Judicial College as a guest of Alabama’s Chief Justice, Hon. Tom Parker. As we read state constitutions and statutes alongside the treatises of Justinian, Hale, and Blackstone, the common law and ius gentium come to life and leap off the page. The fiction that the text is alone sufficient dissolves, and provisions that seem enigmatic make sense. In that room, the common law lives.

The post Still Alive and Well appeared first on Law & Liberty.

]]>
50263 https://lawliberty.org/app/uploads/2023/09/shutterstock_1820108627-scaled-e1693943313638.jpg
Making Cyber Criminals Walk the Constitutional Plank https://lawliberty.org/making-cyber-criminals-walk-the-constitutional-plank/ Mon, 23 Nov 2020 11:00:05 +0000 https://lawliberty.org/?p=19202 International cyber piracy is a growing threat to personal, economic, and national security. But it is not a new threat, not in essence. In the basic character of the problem that it poses to law-abiding citizens of civilized nations, piracy of intellectual resources over the Internet is the same as piracy of ships and cargo […]

The post Making Cyber Criminals Walk the Constitutional Plank appeared first on Law & Liberty.

]]>
International cyber piracy is a growing threat to personal, economic, and national security. But it is not a new threat, not in essence. In the basic character of the problem that it poses to law-abiding citizens of civilized nations, piracy of intellectual resources over the Internet is the same as piracy of ships and cargo on the high seas. Both are actions of trespass and theft beyond the reach of the legal institutions that protect the victims. Like the Barbary pirates of old, cyber pirates often live in sovereign states that fail to remedy or sanction their wrongs.

The Constitution of the United States declares a remedy for piracy. It empowers Congress to issue letters of marque and reprisal. These are private commissions which authorize a person to seize the property of a foreign wrongdoer, whose host nation will neither hold the wrongdoer accountable nor make the victim whole. A couple of scholars and a handful of law students and military officers have suggested that Congress should revive that moribund clause and commission counter-hackers to go after pirates overseas. The idea has not yet caught on. Perhaps that is because the Reprisal Clause has a bad reputation in law and jurisprudence. But its reputation follows from 19th century abuses of what was once a venerable and lawful commission. The commission itself should not be conflated with its later abjection.

The Uses and Abuses of Letters of Marque

To understand why the letter of marque and reprisal became the loose cannon of international law is to see how it can be refurbished and repurposed to solve one of the most formidable problems of our age, within the requirements of due process of law. In short, a private commission is lawful when used to reprise something of value that was taken in an act of wrongdoing, after the sovereign nation in which the wrongdoers take refuge refuses to remedy or sanction the wrong. The letter of marque went rogue when it was unmoored from the legal concept of reprisal and became a roving commission to capture resources belonging to others. By itself, the letter of marque can be a cause of international anarchy. But when tied to the legal concept of a reprisal, it is a just and lawful means to vindicate private rights across sovereign boundaries.

Letters of marque should be issued for particular reprisals alone. William Blackstone referred to the terms “marque” and “reprisal” as “words in themselves synonymous.” And both mentions of the device in the first article of the United States Constitution refer to letters of “marque and reprisal,” neither term appearing without the other.

When a letter of marque is issued for a justified reprisal, it can work in cyber space as it once worked on the oceans. “Reprisals are used between nation and nation,” Emer de Vattel taught, “in order to do themselves justice when they cannot otherwise obtain it.” The concept of a reprisal itself sometimes went wrong, as when it was used to rationalize vengeance killings. This explains its mistaken identification with lawless violence. But in the ius gentium—the law governing civilized nations—reprisals and seizures vindicated wrongs against property and followed conventional procedures for satisfying debts.

Vattel explained,

If a nation has taken possession of what belongs to another—if she refuses to repay a debt, to repair an injury, or to give adequate satisfaction—the latter may seize something belonging to the former and apply it to her own advantage till she obtains payment of what is due to her, together with interest and damages.

Vattel insisted that the law of nations allows reprisals “only upon evidently just grounds, or for a well-ascertained and undeniable debt.”

Only a sovereign who adjudicates the just grounds for a reprisal can order one. But a private citizen may obtain permission to make a reprisal by obtaining a letter of marque, a special commission that both empowers the privateer to obtain justice directly and obligates him to prove the justification in a subsequent prize action. The requirements of obtaining a letter and of proving cause for its execution are necessary, Blackstone explained, “else every private sufferer would be a judge in his own cause.”

In English law, the power to issue private commissions was within the executive’s prerogative. The framers of the United States Constitution relocated the power to the legislative branch. And the Constitution prohibits the states from issuing letters of marque and reprisal, reserving it to Congress. The power to adjudicate cause belongs to courts of admiralty, though that assignment is a custom derived from the commission’s maritime history, not an express constitutional mandate.

The practice of privateering fell into disfavor in the 19th century after nations began to abuse it. Rather than issue a letter of marque only to remedy a particular wrong, sovereign states started issuing general letters, commissioning privateers to capture ships flying the flags of other sovereign states, sometimes without cause. As a result, it became difficult to tell the difference between a reprisal and an act of state-sanctioned piracy.

Western nations met in Paris in 1856 to end the practice of privateering. The resulting agreement secured the conditions necessary for free trade during the industrial revolution. Each nation needed assurances from the others that they would not harass commercial shipping, nor blockade ports, except as justified acts of war. They could have accomplished the same end by limiting issuance of private commissions to cases of reprisal for particular wrongs, documented by competent evidence. But in light of the then-recent history of abuses, an outright ban was a sensible solution.

Reviving Reprisal 

The United States is not a party to the Paris Declaration of 1856. And the Reprisal Clause of Article One still declares a live power of Congress. The legal foundations for issuing letters of marque are in place, should we choose to use them in traditional or new contexts. The chief obstacle to commissioning privateer counter-pirates is inertia. The task would be to fashion criteria and procedures to ensure that letters of marque are issued only for justified reprisals.

The law of cyberspace is not rocket science. It’s not even legal science. As Judge Easterbrook observed more than two decades ago, it is simply law.

Though the contexts are novel, it is not difficult to identify cyber piracy when we see it. Hackers steal trade secrets and other valuable innovations from American companies, just as ocean-going pirates seize ships carrying valuable cargo. They hold personal data hostage, just as pirates demand ransom payments for the return of kidnapped persons.

Letters of marque could authorize counter-hackers to engage in different levels of investigation of and reprisal for those wrongs, according to the case. A Navy officer has proposed three levels of authorized response, justified on different burdens of proof: (1) tracing back to the origin of an attack, (2) blockading a wrongdoer from Internet access, and (3) counterattacking to prevent repeat offenses. Other proposals that are more in keeping with the original meaning of the Reprisal Clause include seizing digital assets from the pirates until they disgorge their ill-gotten gains.

The chief difficulty is to identify justifications. These are contained in the customary law of wrongs. Most lawyers today are trained to think about legal justification by reference to statutes, administrative regulations, treaties, and judicial precedents. Those materials are useless when pirates enjoy the protection of foreign sovereigns who do not recognize our laws as their laws.

An original understanding of the term “reprisal” avoids this problem. When the Reprisal Clause was ratified, American lawyers thought of judicial opinions and positive enactments as declarations of law, not as the law itself. Now, as then, wrongdoing must be proven by reference to the natural and customary norms of the ius gentium

Officials who issue reprisal commissions and lawyers who adjudicate prize disputes must reason like lawyers of earlier generations, who were trained in the legal concepts of common law and international customary law. Hugo Grotius, the original authority on the law of reprisals, demonstrated that the authority of the ius gentium is not contingent upon the consent of any nation but is instead grounded in the authority of reason itself, which is given specific determinations by the conventions and tacit agreements of the people who utilize common resources.

The operative legal concepts justifying reprisals are property rights. The requisite fact is some act of unauthorized intrusion into resources that belong to another as a matter of both customary norms and natural justice. This is not a matter of sentiment or philosophical abstraction. As I show in a paper forthcoming in the journal IP Theory, a discrete set of familiar property concepts can account for the conventional norms that people expect others to honor when they entrust their valuable information to computer systems. Indeed, three concepts perform most of the necessary work.

The first is an idea familiar to both classical jurists and Internet users alike: a domain. A domain refers to the set of virtual resources that the owners and authorized users expect to be exclusive to the group and its collaborators. It is also an ancient jurisprudential term, referring to the locus within which a person or community of persons exercises dominion over some resources to cultivate them, make them productive, and use them to help themselves and others flourish.

That a person or group of persons has dominion over some space, whether tangible or virtual, entails that they have the right to determine the use and management of it. This, in turn, entails that their efforts to exclude meddlers from the domain and to license entry to those who seek cooperation are entitled to respect. The concept of a domain signals to those outside the domain that they have a natural duty to exclude themselves unless given consent to enter (or unless they are acting for an especially weighty reason, recognized in law as a justification, such as strict necessity to save a human life).

The second concept is a bailment. You create a bailment every time you send a letter in the mail or ship furniture to your new home, with the result that your bailee has a duty to deliver the goods as you direct and a derivative right to exclude everyone who is not you. You should also be presumed to create a bailment when you entrust your valuable data to a service provider.

The third concept is a license. You license entry to your home when you invite a guest to dinner. Your guest’s license is not a property right; it is contingent on the purposes for which you create it. The same principle governs licensed access to a computer system. A license shifts the presumption from exclusion to inclusion with respect to the licensee, but that presumption can be overcome with evidence that the entrant exceeded the scope of the license or violated its express or implied terms.

The law of cyberspace is not rocket science. It’s not even legal science. As Judge Easterbrook observed more than two decades ago, it is simply law.

The framers of our national Constitution might have been surprised by the Internet. But they would not have been surprised to discover that the laws whose terms they declared in that instrument are capable of meeting the challenges of the information age. Most of those challenges are not new. Pirates are still piratical. And just reprisals are still a lawful way to bring them to justice.

The post Making Cyber Criminals Walk the Constitutional Plank appeared first on Law & Liberty.

]]>
19202 https://lawliberty.org/app/uploads/2020/11/AP_Lauri-Love-scaled-e1605731752716.jpg
The Common Law: Ginsburg Gets It Wrong https://lawliberty.org/the-common-law-ginsburg-gets-it-wrong/ Mon, 04 May 2015 00:00:00 +0000 https://lawliberty.org/the-common-law-ginsburg-gets-it-wrong/   During oral arguments in Obergefell v. Hodges (2015), Justice Ginsburg asked a question that has heartened the supporters of marriage revision: We have changed our idea about marriage is the point that I made earlier. Marriage today is not what it was under the common law tradition, under the civil law tradition. Marriage was […]

The post The Common Law: Ginsburg Gets It Wrong appeared first on Law & Liberty.

]]>
 

During oral arguments in Obergefell v. Hodges (2015), Justice Ginsburg asked a question that has heartened the supporters of marriage revision:

We have changed our idea about marriage is the point that I made earlier. Marriage today is not what it was under the common law tradition, under the civil law tradition. Marriage was a relationship of a dominant male to a subordinate female. That ended as a result of this Court’s decision in 1982 when Louisiana’s Head and Master Rule was struck down. And no State was allowed to have such a—such a marriage anymore. Would that be a choice that a State should be allowed to have?

Referring to this question, London’s Guardian newspaper gushed: “Ruth Bader Ginsburg Eviscerates Same-Sex Marriage Opponents in Court.”

Not exactly.

Ginsburg’s question presupposes an inaccurate (to put it mildly) narrative about the development of marriage law. The law that the Supreme Court struck down in the case to which she referred was neither common law nor civil law. Ginsburg’s characterization of the common law tradition is false in important respects. And her assertion is premised on a positivist fallacy: that our civil marriage institutions today are the product of positive enactments and not common law.

The Supreme Court struck down Louisiana’s so-called “head and master” law in its decision in Kirchberg v. Feenstra (1981). The offensive provision was contained in a statute, enacted in 1912, which a lower court characterized as “the bedrock of Louisiana’s community property system.” That law cannot be blamed on the common law or civil law traditions.

Ginsburg’s understanding of common law appears incomplete at best. For one thing, the common law doctrine of coverture, under which a married woman’s legal identity was subsumed within that of her husband, was abolished more than a century before the Supreme Court ruled in Kirchberg—and without its intervention. State supreme courts and legislatures amended the common law rules to eliminate inequalities between husband and wife, even as they retained important features of common law marital ownership that limited both a wife’s and a husband’s freedom to encumber property without the other’s consent.

An Australian court explained that the abolition of coverture in that common law nation did not abolish the common law marital estate, the form of ownership of real property by married couples known as “tenancy by the entirety.” Rather, eliminating coverture elevated the wife to a place of authority equal to her husband, even as it constrained the individual liberty of both for the sake of the marriage.

In “tenancy by the entirety,” thus modified, “the two spouses constitute a kind of compound owner, resembling an incorporated association of persons.” For this reason, “neither can alienate without the other—even as a member of an incorporated company cannot alienate any interest in the company’s lands; and there is no interest in the company’s lands that can be sold in execution for his debt.”

Common law states (not Louisiana) in this hemisphere have retained and adapted common law marital ownership, too. As the Tennessee high court explained, the modern tenancy by the entirety elevates the wife to “equal legal status” and avoids those “artificial and archaic rules” that placed the wife under a disability.

Not all common law sovereigns have followed this approach. Some (for example, the United Kingdom) have eliminated common law marital estates, and many have embraced what Hanoch Dagan calls the ideal of “free exit” from marriage. But many have retained the strongest features of common law marital ownership, recognizing that the liberty to commit oneself to marriage is a liberty to choose to create new obligations for oneself. As Joseph Raz has observed, the freedom to marry consists of a “degree of unfreedom.” To create a marital obligation for oneself is in part to obligate oneself not to act on one’s own preferences alone.

It’s not in dispute that coverture entailed injustice, but Ginsburg fails to understand what that injustice was, and therefore why it was gotten rid of. Its purpose was not to allow men to dominate women. Nor was the primary injustice of coverture to excuse husbands for abusive acts, although that was in some cases a foreseeable effect of the doctrine. As a judge of the Michigan high court explained, “the disabilities of coverture were seen as serving to protect and benefit [married] women.” Coverture relieved married woman of both freedom and responsibility. Indeed, the doctrine was often challenged after being invoked by a wife. Some wives, having committed their assets in some way, later sought refuge behind coverture from would-be creditors.

Thus what was wrong about coverture was its treatment of married women as if they were not fully rational human beings. When the Texas Supreme Court struck down Texas’ coverture doctrine in its 1851 decision in Jones v. Taylor, that court reasonably treated coverture as an anomaly within the common law tradition. Men were held responsible for the disposition of their assets. Likewise, single women were accountable for their decisions. Only a married woman was deemed “divested of her faculties as a rational being.”

Abolishing coverture reconciled the common law tradition to itself, in which all rational owners enjoy the “right of disposition, control, and management.”

Most striking of all, however, is Justice Ginsburg’s assumption that state marriage laws today constitute a radical departure from the common law tradition of marriage. Where does she suppose those laws came from? The presumption of paternity existed in common law long before state governments codified it in their statutes. Prohibitions against incest, rights of parental custody and parental recognition, the duties of parents which justify parental rights, spousal privileges and immunities: none of these was invented in the late 20th century by state legislatures or the Supreme Court of the United States.

Indeed, the very idea of marriage as an institution of unique and non-fungible dignity, different in kind from friendships (whether same- or opposite-sex), business ventures, social clubs, religious assemblies, and all other forms of human sociability—the very idea that marriage revisionists want to appropriate for same-sex relationships today—is a common law idea.

Justice Ginsburg’s categorical assertion that marriage in contemporary law is something other than what it is in common law is simply wrong. In the most important respects, marriage most emphatically remains what the common law says it is.

During oral argument in Obergefell, the petitioners’ counsel appeared incapable of understanding, much less answering, the Chief Justice’s suggestion that to eliminate from law the “core definition” of marriage is to redefine the institution of marriage. The obvious import of the Chief Justice’s question was this: If marriage is no longer the union of a man and a woman, what is it going to be? That question matters because, if the common law definition of marriage is wrong, then there might be no rational basis for the norms or legal incidents that the common law has attached to marriage, which the petitioners took for granted.

Oddly, the Guardian lauded Justice Ginsburg’s “spatial awareness.” It is a curious spatial awareness that fails to recognize what is holding one off the ground. Ginsburg and the petitioners seemed to want to saw off the branch on which they and the rest of us are sitting.

The post The Common Law: Ginsburg Gets It Wrong appeared first on Law & Liberty.

]]>
4880 https://lawliberty.org/app/uploads/2020/01/GettyImages-461857020-scaled.jpg
Judging What? https://lawliberty.org/judging-what/ Wed, 11 Mar 2015 00:00:00 +0000 https://lawliberty.org/judging-what/ When judges interpret federal statutes, are they interpreting laws? What should be the obvious answer to this question is complicated by a recent book, Judging Statutes, by the Chief Judge of the United States Court of Appeals for the Second Circuit, Robert A. Katzmann. Judge Katzmann shows us how a well-informed judge approaches difficult questions […]

The post Judging What? appeared first on Law & Liberty.

]]>
broken judge hammer

When judges interpret federal statutes, are they interpreting laws? What should be the obvious answer to this question is complicated by a recent book, Judging Statutes, by the Chief Judge of the United States Court of Appeals for the Second Circuit, Robert A. Katzmann. Judge Katzmann shows us how a well-informed judge approaches difficult questions of statutory interpretation. Along the way, he raises challenging questions about what contemporary statutes are.

The book has two objectives, one descriptive and the other normative. Katzmann wants to enable the legislative and judicial branches each to achieve a “deeper appreciation of how the other operates.” He also argues that legislative history is an authoritative means for communicating the legislature’s purposes. He has written an excellent descriptive book with unrealized normative aspirations.

Judge Katzmann begins with a lucid explication of the helter-skelter chaos that is congressional lawmaking in our age. Votes in the House and Senate number in the hundreds each year and sometimes “take place in the dead of night.” Not only the number of bills but their size, scope, and ambition make it impossible for members to read what they are voting on. In our age of social-engineering-by-legislation, large omnibus bills “pack together a wide range of disparate issues.” In the 112th Congress, he reports, “283 public bills were enacted, with a total of 4,415 pages.” These were only a small fraction of the bills introduced: 6,845 in the House, 3,767 in the Senate.

Members cannot possibly read, much less deliberate about, all those bills. Congress relies heavily on standing committees, multi-committee groups, task forces, outside commissions, and other sub- and extra-congressional groups. It relies especially heavily upon staffers, who perform the research and drafting. Furthermore, many bills are drafted by executive agencies and special interest groups, who work for passage not with members but with staffers. Members learn about the bills, if at all, “by reading the materials produced by the committees and conference committees from which the proposed legislation emanates.”

The portrait that the author paints complicates any honest attempt to understand what Congress does when it makes statutes. In an ideal instance of legislative action, the proposal would be contained in a bill. Legislators would read, understand, deliberate upon, debate, and finally vote on that proposal. Our Congress communicates its proposals and enactments not by the text of the bill itself, but rather by committee reports and other materials that become legislative history, where it bothers to settle upon any particular rule at all. Often, Katzmann reports, Congress intentionally makes statutes ambiguous in order to avoid resolving fraught questions.

This descriptive project sets up a critique of the textualist approach to statutory interpretation (with Justice Scalia the main target). Textualism fails to deliver on its promise of constraining judicial discretion, Katzmann argues, because just as legislative history can be exploited by judges, so can ambiguities in the text of the statute. Canons of construction are limited in their usefulness, often contradictory, and can also abet judicial usurpation.

The early chapters contain many insights that raise the expectation that the author intends to propose an alternative to textualism. And indeed, the latter chapters present a case for some sort of alternative. But Katzmann never makes clear what the law is. If a judge is not merely trying to understand and follow the text of the statute, then what is the judge after? And how does the judge get at it?

At times he is pursuing the meaning of words, at other times the meaning of “law,” and still other times the legislature’s meaning. Katzmann suggests that statutes have objective meanings, apart from judges’ interpretations of them, and that the object of interpretation is to ascertain that meaning. But then the objectivity drops out, as where he hypothesizes that legislators often enact statutes that are intentionally vague and leave it to administrative and judicial officers to specify their norms. Sometimes the objective and subjective meanings coexist uncomfortably; he quotes with approbation Judge Richard Posner’s admonition that a judge who cannot “put himself in the shoes of the enacting legislators” should “decide what attribution of meaning will yield the most reasonable result,” while being guided in his selection of approaches by the legislators’ “conception of reasonableness, to the extent known.”[1]

Elsewhere, Katzmann espouses variations on what he calls a “purposive approach,” but this too takes various forms. Legislative bodies have purposes or intentions but so do the statutes themselves. There are purposes and policies underlying statutes, overall purposes of statutes, and objective meanings of statutes in light of legislative purposes.

This inconsistency is more than merely semantic. The picture emerges of judges choosing from among alternative approaches to statutory interpretation on a case-by-case basis. Judges have a “wide range of instruments” at their disposal. No one approach, no guiding reason—canon, rule, or principle—controls because the law is a moving target. Though judicial discretion does not lack constraints, judges seem to have discretion to choose by which constraints they will be bound in each case. Katzmann allows that the text of the statute should control in some cases, but others are controlled by legislative intent, and others by the goals of drafters. In some cases what controls is the text of the legislative history, in spite of apparently-clear statutory text to the contrary. Legislative history in fact can be “authoritative” because legislators expect to communicate their meaning by it.

Katzmann illustrates this last point with an extended discussion of a case in which he and his colleagues interpreted a provision allowing “attorneys’ fees” to include also expert witness fees. Congress knows how to provide for awards of expert witness fees. But the omission of expert fees from this provision, both at the time of enactment and upon subsequent amendment, did not prevent Judge Katzmann’s panel from holding that Congress in fact authorized such fees. As authority for this holding, Katzmann and his colleagues interpreted a conference committee report to have expressed Congress’s intention.[2]

The author might appear to have substituted for textualism an even more problematic positivism. Legislative history cannot be law in a constitutional sense; it is not presented to Congress for a vote and the President does not sign it. Nor can it be law in a jurisprudential sense. It is not promulgated or codified; it does not provide notice to those whom it governs; it is not drafted to specify the rights or duties that legislation creates.

Thus, Katzmann cannot mean to argue that the legislative history itself is the law, and at one point he expressly denies that it is. The reader is left to ask: Then what is the law? He skips over this difficulty by positing a dichotomy between theoretical and practical reason and disclaiming interest in the former. Nearing the end of the book, he anticipates that “A reader who will be satisfied only by a grand theory of statutory interpretation is no doubt disappointed.” His is a “practical inquiry.” But of course the question what law is has both a theoretical and a practical point. For lawyers, it is the starting point for resolving in a coherent way the very practical problems to which Katzmann has turned his obvious intellectual ability.

Resources are at hand with which to develop the “purposive” approach to which he refers. Understanding legislative intention requires one to treat law as a reason for action and to understand legislation as legal change, the substitution of some reasons for action in place of other reasons. This book can therefore be read fruitfully alongside another published in recent years in the Oxford Legal Philosophy series, by Richard Elkins (which I recently reviewed for Law and Liberty). Ekins shows that legislative intent is not merely possible but actual. He argues persuasively that legislative intent is reducible neither to text, nor to legislative history, nor to an aggregate of the intentions of individual legislators. It is the intention of an actual agent—the legislature constituted as a group that acts for reasons—to change the law in some way.

Alternatively, one might consult the common law jurists. Though their accounts of legislation have differed in some respects, the basic idea is that statutes are a particular kind of reason for action, a “rule of civil conduct” in Blackstone’s parlance. Rules operate by foreclosing deliberation on the reasonableness or unreasonableness of possible courses of action.[3] They are enacted for reasons. In the common law formulation, legislatures look at existing law, identify a mischief to be suppressed, and change the existing legal propositions to provide a remedy. And they are promulgated in public writings.[4] Katzmann briefly alludes to the common law approach by citing Heydon’s Case,[5] which contains a famous statement of it, but (perhaps owing to constraints of space and time) does not pursue it further.

Like Ekins’ theoretical account, the common law approach enables one to understand statutory laws as sets of propositions that impose binding reasons for action upon judges and the governed alike. Once one takes seriously the idea of legislation as a special kind of reason for action, the imperative of understanding legislative intent becomes plain. If law is the set of propositions to which the text points, specified in legislative proposals and adopted according to legislative procedures, then statutory law has an existent reality apart from the text, apart from the legislative history, and apart from the goals or ambitions of any particular legislator (or lobbyist or staffer).

Against those accounts, contemporary congressional lawmaking shows poorly. The Congress and administrative agencies that Judge Katzmann thoroughly describes have little knowledge of law apart from their own enactments, and only slightly better knowledge of those. The lawmaking functions of our administrative state chronicled in this book are almost as far removed from central, non-defective instances of statute-making as Pluto is from the sun.

Against that backdrop, we are urged to count as law not the propositions that Congress has promulgated in text, but rather the goals of those who draft legislative history, whether or not those goals were proposed for promulgation. Consider in this light the Obama administration’s arguments in King v. Burwell: Ignore the written proposal upon which Congress acted; accept instead the authority of the general goals that the statute’s architects had in mind.

And this raises disquieting questions: Do Congress’ recent enactments partake of the nature of legislation? If not, are they law? If not, are we instead governed by the unpromulgated goals of congressional staffers? Once upon a time, when members of Congress read and understood bills before they voted on them, our federal statutes were understood to be laws in a focal sense—reasons for action that impose binding obligations upon legislators, executive officials, citizens, and judges alike. And Pluto was once thought to be a planet.

 

[1] Quoting Richard A. Posner, The Federal Courts: Crisis and Reform (Harvard University Press, 1985), p. 287.

[2] In support of his treatment of the committee report as authoritative, Katzmann invokes dicta from an earlier decision by Justice Scalia.

[3] William Blackstone, Commentaries on the Laws of England (1769), Book 1, p. 44-45.

[4] Ibid., p. 46.

[5] (1584) 76 Eng. Rep. 637.

 

 

The post Judging What? appeared first on Law & Liberty.

]]>
4746 https://lawliberty.org/app/uploads/2020/01/Dollarphotoclub_41001309-scaled.jpg