WOE UNTO YOU,
LAWYERS!
|
autonumout1.
A lusty, gusty attack on “The Law” as a curious, antiquated institution
which, through outworn procedures, technical jargon and queer mummery,
enables a group of medicine-men to dominate our social and political lives
and our business, to their own gain.
|
FRED RODELL
Professor of Law, Yale
University
Written in 1939
“Woe unto you, lawyers!
For ye have taken away
the key of knowledge: ye entered not in yourselves,
and them that were entering in ye hindered.” — Luke. XI, 52
Contents
autonumoutI.
Modern Medicine-Men
autonumoutII.
The Law of the Lawyers
autonumoutIII.
The Way it Works
autonumoutIV.
The Law at its Supremest
autonumoutV.
No Tax on Max
autonumoutVI.
The Law and the Lady
autonumoutVII.
Fairy-Tales and Facts
autonumoutVIII.
More about Legal Language
autonumoutIX.
Incubators of the Law
autonumoutX.
A Touch of Social Significance
autonumoutXI.
Let’s Lay Down the Law
Preface
No lawyer will like this
book. It isn’t written for lawyers. It is written for the average man and its
purpose is to try to plant in his head, at the least, a seed of skepticism
about the whole legal profession, its works and its ways.
In case anyone should be
interested, I got my own skepticism early. Before I ever studied law I used to
argue occasionally with lawyers – a foolish thing to do at any time. When, as
frequently happened, they couldn’t explain their legal points so that they made
any sense to me I brashly began to suspect that maybe they didn’t make any
sense at all. But I couldn’t know. One of the reasons I went to law school was
to try to find out.
At law school I was
lucky. Ten of the men under whom I took courses were sufficiently skeptical and
common-sensible about the branches of law they were teaching so that,
unwittingly of course, they served together to fortify my hunch about the
phoniness of the whole legal process. In a sense, they are the intellectual
godfathers of this book. And though all of them would doubtless strenuously
disown their godchild, I think I owe it to them to name them. Listed
alphabetically, they are:
Thurman Arnold, now
Assistant Attorney-General of the United States; Charles E. Clark, now Judge of
the U.S. Circuit Court of Appeals; William O. Douglas, now Justice of the U.S.
Supreme Court; Felix Frankfurter, now Justice of the U.S. Supreme Court; Leon
Green, now Dean of the Northwestern University Law School; Walton Hamilton,
Professor of Law at Yale University; Harold Laski, Professor of Political
Science at the London School of Economics; Richard Joyce Smith, now a
practicing attorney in New York City; Wesley Sturges, now Director of the
Distilled Spirits Institute; and the late Lee Tulin.
By the time I got
through law school, I had decided that I never wanted to practice law. I never
have. I am not a member of any bar. If anyone should want, not unreasonably, to
know what on earth I am doing – or trying to do – teaching law, he may find a
hint of the answer toward the end of Chapter IX.
When I was mulling over
the notion of writing this book, I outlined my ideas about the book, and about
the law, to a lawyer who is not only able but also extraordinarily frank and
perceptive about his profession. “Sure,” he said, “but why give the show away?”
That clinched it.
F.R.
CHAPTER I
MODERN MEDICINE-MEN
“The law is a sort of hocus-pocus science.” Charles Macklin
In TRIBAL TIMES, there
were the medicine-men. In the Middle Ages, there were the priests. Today there
are the lawyers. For every age, a group of bright boys, learned in their trade
and jealous of their learning, who blend technical competence with plain and
fancy hocus-pocus to make themselves masters of their fellow men. For every
age, a pseudo-intellectual autocracy, guarding the tricks of its trade from the
uninitiated, and running, after its own pattern, the civilization of its day.
It is the lawyers who
run our civilization for us – our governments, our business, our private lives.
Most legislators are lawyers; they make our laws. Most presidents, governors,
commissioners, along with their advisers and brain-trusters are lawyers; they
administer our laws. All the judges are lawyers; they interpret and enforce our
laws. There is no separation of powers where the lawyers are concerned. There
is only a concentration of all government power – in the lawyers. As the
schoolboy put it, ours is “a government of lawyers, not of men.”
It is not the
businessmen, no matter how big, who run our economic world. Again it is the
lawyers, the lawyers who “advise” and direct every time a company is formed,
every time a bond or a share of stock is issued, almost every time material is
to be bought or goods to be sold, every time a deal is made. The whole
elaborate structure of industry and finance is a lawyer-made house. We all live
in it, but the lawyers run it.
And in our private
lives, we cannot buy a home or rent an apartment, we cannot get married or try
to get divorced, we cannot die and leave our property to our children without
calling on the lawyers to guide us. To guide us, incidentally, through a maze of
confusing gestures and formalities that lawyers have created.
Objection may be raised
immediately that there is nothing strange or wrong about this. If we did not
carry on our government and business and private activities in accordance with
reasoned rules of some sort we would have chaos, or else a reversion to brute
force as the arbiter of men’s affairs. True – but beside the point. The point
is that it is the lawyers who make our rules and a whole civilization that
follows them, or disregards them at its peril. Yet the tremendous majority of
the men who make up that civilization, are not
lawyers, pay little heed to how and why the rules are made. They do not ask,
they scarcely seem to care, which rules are good and which are bad, which are a
help and which a nuisance, which are useful to society and which are useful
only to the lawyers. They shut their eyes and leave to the lawyers the running
of a large part of their lives.
Of all the specialized
skills abroad in the world today, the average man knows least about the one
that affects him most – about the thing that lawyers call The Law. A man who
will discourse at length about the latest cure for streptococci infection or
describe in detail his allergic symptoms cannot begin to tell you what happened
to him legally – and plenty did – when he got married. A man who would not
dream of buying a car without an intricate and illustrated description of its
mechanical workings will sign a lease without knowing what more than four of
its forty-four clauses mean or why they are there. A man who will not hesitate
to criticize or disagree with a trained economist or an expert in any one of a
dozen fields of learning will follow, unquestioning and meek, whatever advice
his lawyer gives him. Normal human skepticism and curiosity seem to vanish
entirely whenever the layman encounters The Law.
There are several
reasons for this mass submission, One is the average man’s fear of the unknown –
and of policemen. The law combines the threat of both. A non-lawyer confronted
by The Law is like a child faced by a pitch-dark room. Merciless judges lurk
there, ready to jump out at him. (“Ignorance of the law is no defense.”) Cowed
and, perforce, trusting, he takes his lawyer’s hand, not knowing what false
step he might make unguided, nor what punishment might then lie in wait for
him. He does not dare display either skepticism or disrespect when he feels
that the solemn voice of the lawyer, telling him what he must or may not do, is
backed by all the mighty and mysterious forces of law-and-order from the
Supreme Court on down on the cop on the corner.
Then, too, every lawyer
is just about the same as every other lawyer. At least he has the same thing to
sell, even though it comes in slightly different models and at varying prices.
The thing he has to sell is The Law. And it is as useless to run from one
lawyer to another in the hope of finding something better or something
different or something that makes more common sense as it would be useless to
run from one Ford dealer to another if there were no Chevrolets or Plymouths or
even bicycles on the market. There is no brand competition or product
competition in the lawyers’ trade. The customer has to take The Law or nothing.
And if the customer should want to know a little more about what he’s buying – buying
in direct fees or indirect fees or taxes – the lawyers need have no fear of
losing business or someone else if they just plain refuse to tell.
Yet lawyers can and
often do talk about their product without telling anything about it at all. And
that fact involves one of the chief reasons for the non-lawyer’s persistent
ignorance about The Law. Briefly, The Law is carried on in a foreign language.
Not that it deals, as do medicine and mechanical engineering, with physical
phenomena and instruments which need special words to describe them simply
because there are no other words. On the contrary, law deals almost exclusively
with the ordinary facts and occurrences of everyday business and government and
living. But it deals with them in a jargon which completely baffles and
befoozles the ordinary literate man, who has no legal training to serve him as
a trot.
Some of the language of
the law is built out of Latin or French words, or out of old English words
which, but for the law, would long ago have fallen into disuse. A common street
brawl means nothing to a lawyer until it has been translated into a “felony,” a
“misdemeanor,” or a “tort”; and any of those words, when used by a lawyer, may
mean nothing more than a common street brawl. Much of the language of the law
is built out of perfectly respectable English words which have been given a
queer and different and exclusively legal meaning. When a lawyer speaks, for
instance, of “consideration” he is definitely not referring to kindness. All of
the language of the law is such, as Mr. Dooley once put it, that a statute
which reads like a stone wall to the lawman becomes, for the corporation
lawyer, a triumphal arch. It is, in short, a language that nobody but a lawyer
understands. Or could understand -–if we are to take the lawyers’ word for it.
For one of the most
revealing things about the lawyers’ trade is the unanimous inability or
unwillingness, or both, on the part of the lawyers to explain their brand of
professional pig Latin to men who are not lawyers. A doctor can and will tell
you what a metatarsus is and where it is and why it is there and, if necessary,
what is wrong with it. A patient electrician can explain, to the satisfaction
of a medium-grade mentality, how a dynamo works. But try to pin down a lawyer,
any lawyer, on “jurisdiction” or “proximate cause” or “equitable title” – words
which he tosses off with authority and apparent familiarity and which are part
of his regular stock in trade. If he does not dismiss your question summarily
with “You’re not a lawyer’ you wouldn’t understand,” he will disappear into a
cloud of legal jargon, perhaps descending occasionally to the level of a
non-legal abstraction or to the scarcely more satisfactory explanation that
something is so because The Law says that it is so. That is where you are
supposed to say, “I see.”
It is this fact more
than any other – the fact that lawyers can’t or won’t tell what they are about
in ordinary English – that is responsible for the hopelessness of the
non-lawyer in trying to cope with or understand the so-called science of law.
For the lawyers’ trade is a trade built entirely on words. And so long as the
lawyers carefully keep to themselves the key to what those words mean, the only
way the average man can find out what is going on is to become a lawyer, or at
least to study law, himself. All of which makes it very nice – and very secure –
for the lawyers.
Of course any lawyer
will bristle, or snort with derision, at the idea that what he deals in is
words. He deals, he will tell you, in propositions, concepts, fundamental
principles – in short, in ideas. The reason a non-lawyer gets lost in The Law
is that his mind has not been trained to think logically about abstractions,
whereas the lawyer’s mind has been so trained. Hence the lawyer can leap
lightly and logically from one abstraction to another, or narrow down a general
proposition to apply to a particular case, with an agility that leaves the
non-lawyer bewildered and behind. It is a pretty little picture.
Yet it is not necessary
to go into semantics to show that it is a very silly little picture. No matter
what lawyers deal in, the thing they
deal with is exclusively the stuff of
living. When a government wants to collect money and a rich man does not want
to pay it, when a company wants to fire a worker and the worker wants to keep
his job, when an automobile driver runs down a pedestrian and the pedestrian
says it was the driver’s fault and the driver says it wasn’t – these things are
living facts, not airy abstractions. And the only thing that matters about the
law is the way it handles these facts and a million others. The point is that
legal abstractions mean nothing at all until they are brought down to earth.
Once brought down to earth, once applied to physical facts, the abstractions
become nothing but words – words by which lawyers describe, and justify, the
things that lawyers do. Lawyers would always like to believe that the
principles they say they work with are something more than a complicated way of
talking about simple, tangible, non-legal matters; but they are not. Thus the
late Justice Holmes was practically a traitor to his trade when he said, as he
did say, “General propositions do not decide concrete cases.”
To dismiss the abstract
principles of The Law as being no more, in reality, than hig-sounding
combinations of words may, in one sense, be a trifle confusing. Law in action
does, after all, amount to the application of rules to human conduct; and rules
may be said to be, inevitably, abstractions themselves. But there is a
difference and a big one. “Anyone who pits on this platform will be fined five
dollars” is a rule and, in a sense, an abstraction; yet it is easily
understood, it needs no lawyer to interpret it, and it applies simply and
directly to a specific factual thing. But “Anyone who willfully and maliciously
spits on this platform will be fined five dollars” is an abstraction of an
entirely different color. The Law has sneaked into the rule in the words “willfully
and maliciously.” Those words have no real meaning outside of lawyers’ minds
until someone who spits on the platform is or is not fined five dollars – and
they have none afterward until someone else spits on the platform and does or
does not get fined.
The whole of The Law – its
concepts, its principles, its propositions – is made up of “willfullys” and “maliciouslys,”
of words that cannot possibly be pinned down to a precise meaning and that are,
in the last analysis, no more than words. As a matter of fact, the bulk of The
Law is made up of words with far less apparent relation to reality than “willfully”
or “maliciously.” And you can look through every bit of The Law – criminal law,
business law, government law, family law – without finding a single rule that
makes as much simple sense as “Anyone who spits on this platform will be fined
five dollars.”
That, of course, is why
a non-lawyer can never make rhyme or reason out of a lawyer’s attempted
explanation of the way The Law works. The non-lawyer wants the whole business
brought down to earth. The lawyer cannot bring it down to earth without, in so
doing, leaving The Law entirely out of it. To say that Wagner Labor Act was
held valid because five out of the nine judges on the Supreme Court approved of
it personally, or because they thought it wiser policy to uphold it than to
risk further presidential agitation for a change in the membership of the Court
– to say this is certainly not to explain The Law of the case. Yet to say this
makes a great deal more sense to the layman and comes a great deal closer to
the truth than does the legal explanation that the Act was held valid because
it constituted a proper exercise of Congress’ power to regulate interstate
commerce. You can probe the words of that legal explanation to their depths and
bolster them with other legal propositions dating back one hundred and fifty
years and they will still mean, for all practical purposes, exactly nothing.
There is no more pointed
demonstration of the chasm between ordinary human thinking and the mental
processes of the lawyer than in the almost universal reaction of law students
when they first encounter The Law. They come to law school a normally intelligent,
normally curious, normally receptive group. Day in and day out they are
subjected to the legal lingo of judges, textbook writers, professors – those
learned in The Law. But for months none of it clicks; there seems to be nothing
to take hold of. These students cannot find anywhere in their past knowledge or
experience a hook on which to hang all this strange talk of “mens rea” and “fee
simple” and “due process” and other unearthly things. Long and involved
explanations in lectures and lawbooks only make it all more confusing. The
students know that law eventually deals with extremely practical matters like
buying land and selling stock and putting thieves in jail. But all that they
read and hear seems to stem not only from a foreign language but from a strange
and foreign way of thinking.
Eventually their
confusion founded though it is in stubborn and healthy skepticism is worn down.
Eventually they succumb to the barrage of principles and concepts and all the
metaphysical refinements that go with them. And once they have learned to talk the
jargon, once they have forgotten their recent insistence on
matters-of-factness, once they have begun to glory in their own agility at that
mental hocus-pocus that had them befuddled a short while ago, then they have
become, in the most important sense, lawyers. Now they, too, have joined the
select circle of those who can weave a complicated intellectual riddle out of
something so mundane as a strike or an automobile accident. Now it will be hard
if not impossible ever to bring them back tot hat disarmingly direct way of
thinking about the problems of people and society which they used to share with
the average man before they fell in with the lawyers and swallowed The Law.
Learning the lawyers’ talk
and the lawyers’ way of thinking – learning to discuss the pros and cons of,
say, pure food laws in terms of “affectation with a public contract” – is very
much like learning to work cryptograms or play bridge. It requires
concentration and memory and some analytic ability, and for those who become
proficient it can be a stimulating intellectual game. Yet those who work
cryptograms or play bridge never pretend that their mental efforts, however
difficult and involved, have any significance beyond the game they are playing.
Whereas those who play the legal game not only pretend but insist that their
intricate ratiocination’s in the realm of pure thought have a necessary
relation to the solution of practical problems. It is through the medium of
their weird and wordy mental gymnastics that the lawyers lay down the rules
under which we live. And it is only because the average man cannot play their
game, and so cannot see for himself how intrinsically empty-of-meaning their
playthings are, that the lawyers continue to get away with it.
The legal trade, in
short, is nothing but a high-class racket. It is a racket far more lucrative
and more powerful and hence more dangerous than any of those minor and
much-publicized rackets, such as ambulance-chasing or the regular defense of
known criminals, which make up only a tiny part of the law business and against
which the respectable members of the bar are always making speeches and taking
action. A John W. Davis, when he exhorts a court in the name of God and Justice
and the Constitution – and, incidentally, for a fee – not to let the federal
government regulate holding companies, is playing the racket for all it is
worth. So is a Justice Sutherland when he solemnly forbids a state to impose an
inheritance tax on the ground that the transfer – an abstraction – of the right
to get dividends – another abstraction – did not take place geographically inside the taxing state.
And so, for that matter, are all the Corcorans and Cohens and Thurman Arnolds
and the rest, whose chief value to the New Deal lies not in their political
views nor even in their administrative ability but rather in their adeptness at
manipulating the words of The Law so as to make things sound perfectly proper
which other lawyers, by manipulating different words in a different way,
maintain are terribly improper. The legal racket knows no political or social
limitations.
Furthermore, the lawyers
– or at least 99 44/100 per cent of them – are not even aware that they are
indulging in a racket, and would be shocked at the very mention of the idea.
Once bitten by the legal bug, they lose all sense of perspective about what
they are doing and how they are doing it. Like the medicine men of tribal times
and the priests of the Middle Ages they actually believe in their own nonsense.
This fact, of course, makes their racket all the more insidious. Consecrated
fanatics are always more dangerous than conscious villains. And lawyers are
fanatics indeed about the sacredness of the word-magic they call The Law.
Yet the saddest and most
insidious fact about the legal racket is that the general public doesn’t
realize it’s a racket either. Scared, befuddled, impressed and ignorant, they
take what is fed them, or rather what is sold them. Only once an age do the
non-lawyers get, not wise, but disgusted, and rebel. As Harold Laski is fond of
putting it, in every revolution the lawyers lead the way to the guillotine or
the firing squad.
It should not, however,
require a revolution to rid society of lawyer-control. Nor is riddance by
revolution ever likely to be a permanent solution. The American colonists had
scarcely freed themselves from the nuisances of The Law by practically
ostracizing the pre-Revolutionary lawyers out of their communities – a fact
which is little appreciated – when a new and home-made crop of lawyers sprang
up to take over the affairs of the baby nation. That crop, 150 years later, is
still growing in numbers and in power.
What is really needed to
put the lawyers in their places and out of the seats of the mighty is no more
than a slashing of the veil of dignified mystery that now surrounds and
protects The Law. If people could be made to realize how much of the vaunted
majesty of The Law is a hoax and how many of the mighty processes of The Law
are merely logical legerdemain, they would not long let the lawyers lead them
around by the nose. And people have recently begun, bit by bit, to catch on.
The great illusion of The Law has been leaking a little at the edges.
There was President
Roosevelt’s plan to add to the membership of the Supreme Court, in order to get
different decisions. Even those who opposed the plan – and they of course
included almost all the lawyers – recognized, by the very passion of their
arguments, that the plan would have been effective: in other words, that by
merely changing judges you could change the Highest Law of the Land. And when
the Highest Law of the Land was changed without even changing judges, when the
same nine men said that something was constitutional this year which had been
unconstitutional only last year, then even the most credulous of laymen began
to wonder a little about the immutability of The Law. It did not add to public
awe of The Law either when Thomas Dewey’s grand-stand prosecution of a Tammany
hack was suddenly thrown out of court on a technicality so piddling that every
newspaper in New York City raised an editorial howl – against a more or less
routine application of The Law. And such minor incidents as the recent
discovery that one of Staten Island’s leading law practitioners had never
passed a bar examination, and so was not, officially, a lawyer, do not lend
themselves to The Law’s prestige.
Yet it will take a great
deal more than a collection of happenings like these to break down,
effectively, the superstition of the grandeur of The Law and the hold which
that superstition has on the minds of most men. It will take some understanding
of the wordy emptiness and irrelevance of the legal process itself. It will
take some cold realization that the inconsistencies and absurdities of The Law
that occasionally come into the open are not just accidents but commonplaces.
It will take some awakening to the fact that training in The Law does not make
lawyers wiser than other men, but only smarter.
Perhaps an examination
of the lawyers and their Law, set down in ordinary English, might help achieve
these ends. For, despite what the lawyers say, it is possible to talk about legal principles and legal reasoning in
everyday non-legal language. The point is that, so discussed, the principles
and the reasoning and the whole solemn business of The Law come to look
downright silly. And perhaps if the ordinary man could see in black and white
how silly and irrelevant and unnecessary it all is, he might be persuaded, in a
peaceful way, to take the control of his civilization out of the hands of those
modern purveyors of streamlined voodoo and chromium-plated theology, the
lawyers.
CHAPTER II
THE LAW OF THE LAWYERS
“The law is the true embodiment
Of everything that’s excellent.
It has no kind of fault or flaw.” — W.S. Gilbert
The Law is the killy-loo
bird of the sciences. The killy-loo, of course, was the bird that insisted on
flying backward because it didn’t care where it was going but was mightily
interested in where it had been. And certainly The Law, when it moves at all,
does so by flapping clumsily and uncertainly along, with its eye unswervingly
glued on what lies behind. In medicine, in mathematics, in sociology, in
psychology – in every other one of the physical and social sciences – the
accepted aim is to look ahead and then move ahead to new truths, new
techniques, new usefulness. Only The Law, inexorably devoted to all its most
ancient principles and precedents, makes a vice of innovation and a virtue of
hoariness. Only The Law resists and resents the notion that it should ever
change its antiquated ways to meet the challenge of a changing world.
It is well-nigh
impossible to understand how The Law works without fully appreciating the truth
of this fact: — The Law never admits to itself that there can be anything
actually new under the sun. Minor variations of old facts, old machines, old
relationships, yes; but never anything different enough to bother The Law into
treating it otherwise than as an old friend in a new suit of clothes. When
corporations first came on the legal scene, The Law regarded them as individual
persons, in disguise, and so, for most legal purposes, a corporation is still
considered, and even talked about, as a “person.” A transport airplane, so far
as The Law is concerned, is nothing but a newfangled variety of stagecoach.
Such things as sit-down strikes, holding companies, Paris divorces, were
treated with almost contemptuous familiarity by The Law when they first appeared,
and the same fate undoubtedly awaits television when it grows up and begins to
tangle with The Law. For all this is part of a carefully nurtured legend to the
effect that The Law is so omniscient that nothing men may do can ever take it
unawares, and so all-embracing that the principles which will apply to men’s
actions 500 years from now are merely waiting to be applied to whatever men
happen to be doing in 2439 A.D.
What The Law purports to
be is a tremendous body of deathless truths so wide in scope and so infinite in
their variations that they hold somewhere, and often hidden, within their
vastnesses the solution of every conceivable man-made dispute or problem. Of
course the truths are phrased as abstract principles, and the principles are
phrased in the strange lingo of The Law. And so only the lawyers – especially
those who have become judges or ordained interpreters of The Words – can ever
fish the proper solution out of The Law’s vastnesses. But it is the very
keystone of the whole structure of legal mythology to insist that all earthly
problems can and must be solved by reference to this great body of unearthly
abstractions – or, in short, that they can and must be solved by the lawyers.
The chief reason why it
is so hard for the ordinary man to get the lawyer’s picture of The Law – as a
supreme mass of changeless abstract principles – is that the ordinary man
generally thinks of law as a composite of all the little laws that his various
governments are forever passing and amending and, occasionally, repealing.
Congress and state legislatures and city councils keep laying down rules and
changing rules. Is this not clear proof that The Law moves with the times?
Briefly, it is not.
To the lawyer, there is
a vast difference between The Law and the laws. The Law is something beyond and
above every statute that ever has been or could be passed. As a matter of fact,
every statute, before the lawyers allow it to mean anything – before they let
it have any effect on the actions of men – has to be fitted into The Law by “interpretation”
of what the statute “means.” And any apparently harmless little statue is
likely to mean plenty to a lawyer, just as a statute which seems to carry
dynamite in its words may mean nothing by the time the lawyers are through with
it.
A few decades ago when
the famous Clayton Act was passed, which was intended to preserve competition
and crack down on monopolies, a strong labor lobby got Congress to write
Section 20 into the new law. Section 20 had practically nothing to do with
competition or monopolies. Section 20 was intended to restrict federal courts
from granting so many injunctions against union activities. Samuel Gompers, who
was then the head man of the unions, called Section 20 “labor’s Magna Charts.” But
Samuel Gompers was no lawyer.
By the time the lawyers,
headed by the Supreme Court, got through with Section 20 it meant exactly
nothing. Chief Justice Taft, speaking for the lawyers, said it was intended to mean exactly nothing.
Referring to The Law as authority, he said that it was clear that Section 20
was no more than a restatement of The Law as it had existed before the Clayton
Act was passed. Now, Chief Justice Taft was in no position to know, and would
have considered it irrelevant if he had known, that the Clayton Act might not
have been passed at all if it had not seemed clear to labor that Section 20
gave strikers the right to picket without constant interference by the federal
courts. But Chief Justice Taft and his court of lawyers had the last word. They
made of labor’s “Magna Charta” something strangely resembling Germany’s “scrap
of paper.” And all in the name of The Law.
Of course, Chief Justice
Taft and his court would have found it far more difficult to do this if other
lawyers had not played a leading part in writing the Clayton Act. Section 20
was full of those typically meaningless words, like “willfully” and “maliciously.”
It said, for instance, that federal courts could not stop strikers from
picketing “lawfully.” “Lawfully,” according to Chief Justice Taft, meant in
accordance with The Law before Clayton Act was passed. Before the Clayton Act
was passed, the lawyers had ruled that just about all picketing was against The
Law. Therefore it still was. Q. E. D. And, incidentally, the Supreme Court did
almost the same thing with the whole of the Clayton Act by picking on other
meaningless legalistic words to prove that most trusts were not trusts and most
monopolies were not monopolies – according to The Law. You can change the laws
all you please, but you can’t change The Law. And The Law is what counts.
It would, moreover, be a
mistake to jump to the conclusion that Chief Justice Taft and his court “interpreted”
Section 20 of the Clayton Act into complete oblivion merely because they didn’t
like unions or strikes or picketing. For Taft, in the course of explaining at
great length why Section 20 did not really mean a thing, went out of his way to
include in his opinion a rousing defense of labor unions. Of course, this
defense did not do the unions any good after Taft got through with it. The
point is that Taft was insisting to his fellow-lawyers – the only people who
ever read or understand judicial opinions – that is disappointing the unions he
was merely following The Law. The choice, however distasteful, was forced upon
him. For it is part of the legal legend that no lawyer – not even when he
becomes a Supreme Court justice – ever does any more than explain what The Law
is and how it applies. He is merely the voice through which the great gospel is
made known to men.
Moreover, The Law can do
strange things to man-made laws even when, as very rarely happens, such laws
are not so full of “willfullys” and “maliciouslys” and “lawfullys” that they
practically invite the lawyers to write their own ticket. For example, there
was the Guffey Coal Act, involving federal regulation of the coal industry. The
Supreme Court first said that most of the important parts of the Act were
unconstitutional. Now, saying that a law is unconstitutional is really no more
than a convenient way of saying that it goes against The Law. But the whole
idea of constitutionality and unconstitutionality is so mixed up with notions
like patriotism and politics, as well as with the most sacred and complicated
of all legal rules, that it deserves and will get full treatment a little later
on. The point here is that, after saying part of the Guffey Act was
unconstitutional, the judges went on to say that the good part had to be thrown
out with the bad part. Not unreasonable perhaps, on the fact of it. Not
unreasonable until you learn that Congress, foreseeing what the Supreme Court
might do with part of the Act, had taken particular pains to write very clearly
into the Act that if part of it should be held unconstitutional, the rest of it
should go into effect anyway. And so in order to throw out the whole Act, the
Court had to reason this way: — Part of this law is unconstitutional. The rest
is constitutional. Congress said the constitutional. Part should stand
regardless of the rest. But that is not our idea of a proper way of doing
things. We do not believe Congress would want to do things in a way that does
not seem proper to us, who really know The Law. Therefore, we do not believe
Congress meant what it said when it said to let the constitutional part stand.
Therefore, we will throw it out along with the unconstitutional part. In the
name of The Law.
That reasoning is not a
burlesque. It is a shortened version of part of what the Supreme Court actually
said, though the Court phrased it in multi-syllabic legal language, in the case
of Carter against the Carter Coal Company. And the result is an example, more
obvious but no more extreme than thousands upon thousands of others, of how
little the laws written by our so-called lawmakers really mean until the
lawyers have decided what those laws mean – or don’t mean – in the light of The
Law.
Thus, the common man is
dead wrong when he thinks of law as a conglomeration of all the laws that are
passed by legislatures and written down in books – even though it is true that
practically all those little laws are phrased by lawyers in legal language.
Those little laws, those statutes, are, to a lawyer, the least important and
least respectable of three kinds of rules with which the lawyers deal. The
other two kinds of rules are those that make up what lawyers call “the common
law” and those that make up “constitutional law.”
Now, the common law is
actually closer to The Law with a capital L than any constitution or statute
ever written. The common law is the set of rules that lawyers use to settle any
dispute or problem to which no constitution or statute applies. There is, for
instance, no written rule to tell the lawyers (or anybody else) whether a
Nevada divorce is good in Pennsylvania. There is no written rule to tell
whether a man who orders a house built with a bathroom between the kitchen and
the pantry has to take the house and pay the builder if everything else is fine
but the bathroom is between the living room and the coat-closet. In both cases,
the lawyer-judges write their own answers without interference from any
constitution or statute. In both cases, the answers are said to be fished
directly, non-stop, out of the mass of abstract principles that make up The
Law.
Constitutional law is
something else again. A constitution, in this country at least, is halfway
between The Law and an ordinary statute. Like a statute, it is phrased by men,
a few of whom are usually not lawyers, and is written down in definite if often
nebulous-meaning words; (though in England the Constitution isn’t written down
anywhere and so is indistinguishable from The Law of England). But like The
Law, constitutions, except where they deal with the pure mechanics of
government – as in giving each state two senators or listing the length of a
governor’s term of office – are made up of abstract principles which mean
nothing until brought down to earth by the lawyers. If this sounds like heresy,
consider, for instance, the U.S. Constitution’s well-known guarantee of freedom
of speech. What does that guarantee mean, practically speaking? It did not stop
the federal government from putting people in jail during the World War because
they talked against war. It did not stop the police of Harlan County, Kentucky,
from beating up people who tried to make speeches in favor of unions in Harlan
County. On the other hand, that constitutional guarantee does prevent the
extreme restrictions of free speech which are common abroad today. How tell,
then, which free speech is good and which is bad, under the Constitution? Only
by asking the lawyer-judges. And how can they tell; how do they decide? Simply
by referring to our old friend, The Law, in order to “interpret” the
Constitution.
The Law is thus superior
to constitutions, just as it is superior to statutes. And according to the
legal legend, it is neither constitutions nor statutes which finally determine
the rules under which men live. It is The Law, working unimpeded to produce the
common law, working through the words of constitutions to produce
constitutional law, working through the words of both statutes and
constitutions to produce statutory law. All three kinds of law are merely
obedient offspring of that great body of abstract principles which never
changes and which nobody but a lawyer even pretends to understand.
Justice Holmes was in
effect talking about The Law as a whole, when he said of its nearest and
dearest offspring; “The common law is not a brooding omnipresence in the sky.” But
Justice Holmes, as he well knew when he said that, was dissenting not only from
a decision of the Supreme Court but from the opinions of most lawyers about The
Law. For practically every lawyer thinks and talks of The Law as a sort of
omnipotent, omniscient presence hovering around like God over the affairs of
men. Yet every lawyer purports to be able to understand and interpret a large
part of that presence for the benefit of those who are not lawyers – at a
price.
The strange thing is,
however, that lawyers, for all their alleged insight into the great mystery,
are never able to agree about the presence or its interpretation, when it comes
down to applying The Law to a simple, specific factual problem. If the lawyers
agreed, we would not have appellate courts reversing the judgments of trial
courts and super-appellate courts reversing the judgments of appellate courts,
and super-super-appellate courts – or supreme courts – reversing the judgments
of super-appellate courts. The fact is that every lawyer claims to know all
about The Law to a specific dispute. Whereas no non-lawyer cares in the
slightest degree what The Law is until it comes down to applying The Law to a
specific dispute.
It is all very well for
a lawyer to say, out of his knowledge of The Law, that a “mortgagor” has “legal
title” to a building. That is very pretty and sounds very impressive. But if
the mortgagor then wants to know if he can sell the building, and on what
terms, and if he has to pay taxes on it, and if he can kick the mortgagee out
if the mortgagee comes snooping around, the lawyers will begin to disagree. It
is all very well, too, for a lawyer to say that The Law forbids “interference
with the freedom of contract.” But when 57 respectable lawyers of the late
Liberty League declare unanimously that employers need pay no attention to the
Wagner Labor Act, because it interferes with freedom of contract, and then the
Supreme Court tells them they are 100% wrong, the 57 lawyers undoubted
knowledge of The Law begins to look just a trifle futile.
The Law, as a matter of
fact, is all things to all lawyers. It is all things to all lawyers simply
because the principles on which it is built are so vague and abstract and
irrelevant that it is possible to find in those principles both a justification
and a prohibition of every human action or activity under the sun.
And how does The Law,
then, ever get brought down to earthly affairs? In what way does it actually
succeed in building regulatory fences around men’s conduct? The answer is just
as simple as it is complex. The answer is that the last bunch of judges which
gets a shot at the solution of any specific problem has the decisive word on
The Law as it affects that problem. The solution which that last bunch of
judges gives to that problem is The
Law so far as that problem is concerned – even though every other lawyer in the
world might suppose The Law was different. It might not then be irrelevant to
ask just what a judge is. And it was an unusually candid judge who recently
gave the best answer to that question. “A judge,” he said, “is a lawyer who
knew a governor.”
The lawyers who knew
governors – or who knew presidents – or who knew enough ward-leaders (where
judges are elected) – bring The Law down to earth in all sorts of different and
conflicting ways. A home-owner who beats up a trespassing hobo may be a hero in
one state and a criminal in another. But no matter which he is, the legal
appraisal of his actions will fit perfectly into the great and ubiquitous
framework of The Law. For, no matter how differently different judges in
different places may decide the same human problem, or decide it differently in
the same place at different times, the great legend of The Law as steadfast and
all-embracing is always adhered to. Decisions may change or differ or conflict
but The Law budges not.
And it is necessary to
understand this keystone of legal reasoning – and to accept it as a fact no
matter how silly it may sound – before it is possible to understand the strange
processes of The Law. It is necessary to realize that The Law not only stands
still but is proud and determined to stand still. If a British barrister of 200
years ago were suddenly to come alive in an American court-room, he would feel
intellectually at home. The clothes would astonish him, the electric lights
would astonish him, the architecture would astonish him. But as soon as the
lawyers started talking legal talk, he would know that he was among friends.
And given a couple of days with the law books, he could take the place of any
lawyer present – or of the judge – and perform the whole legal mumbo-jumbo as
well as the. Imagine, by contract, a British surgeon of 200 years ago plopped
into a modern hospital operating room. He would literally understand less of
what was going on than would any passer-by brought in from the street at
random.
The law, alone of all
the sciences, just sits – aloof and practically motionless. Constitutions do
not affect it and statutes do not change it. Lawyers talk wise about it and
judges purport to “apply” it when they lay down rules for men to follow, but
actually The Law – with a capital L – has no real relation to the affairs of
men. It is permanent and changeless – which means that it is not of this earth.
It is a mass of vague abstract principles – which means that it is a lot of
words. It is a brooding omnipresence in the sky – which means that it is a big
balloon, which has thus far escaped the lethal pin.
CHAPTER III
THE WAY IT WORKS
“…the lawless science of our law,
That codeless myriad of precedent
That wilderness of single instances.” — Alfred, Lord Tennyson
In order to demonstrate
up to the hilt that the whole of The Law is a hoax, a balloon, a lot of empty
words, it would presumably be necessary to take each principle and
sub-principle and counter-principle of The Law in turn and divest each one of
its dazzling legal trappings so that the non-lawyer could see that there was
nothing inside any of them. Plainly, that would be impossible. The
lawyer-judges alone turn out each year hundreds upon hundreds of books full of
nothing but refinements of The Law and its principles. Tremendous libraries
overflow with volumes which are not even about The Law but which are part of The Law. (Lawyers,
incidentally, spend most of their working lives trying to make a small dent in
the mountains of literature that help make up The Law.) Yet it may perhaps
serve the general deflating, or disrobing, purpose to take the legal pants,
step by easy step, off a few simple and entirely typical examples of The Law in
action.
The field of Law known
as Contracts is one of the most settled, most venerable, and least politically
complicated fields of Law. It is the field of Law that deals with the
agreements, business or otherwise, that men – or companies (but companies,
remember, are nothing but men to The Law) – make with each other. Those
agreements usually consist of one man promising to do one thing, such as to dig
a ditch, and another man promising to do another thing, such as to hand over
$50. Of course, if men could be trusted to keep their promises there would be
no excuse for a Law of Contracts – but then if men could be trusted to act
decently in general there would be little need for Law of any kind. As a matter
of fact, only gamblers trust each other to keep their promises, for The Law
will not stoop to enforce a gambling agreement or bet. The whole Law of
Contracts is based on the idea that men in general cannot be trusted to keep
their promises, and around this area of mutual mistrust The Law lays down its
principles.
The first principle is
that before you can have a Contract that The Law will uphold, you must have an
Offer by one party and an Acceptance by another party. (Only The Law insists on
making a “party” out of a single person.) What then, in the first place, is a
legal Offer? It is something quite different from an ordinary non-legal offer,
in the sense that the man in the street might use that word. A lawyer would
scoff at the notion that most offers were Offers.
For instance, if a man
says to his gardener, “Tony, I’ll give you fifty dollars,” that is not a legal
Offer. If a man says to his gardener, “Tony, I’ll give you fifty dollars if you’ll
dig a ditch for me,” that is not an Offer either. But if the man says to his
gardener, “Tony, if you’ll dig a ditch for me, two feet deep and three feet
wide, running from the northwest corner of the house to the pigpen, and finish
it by Wednesday week (though The Law would frown on such colloquial phrasing),
I’ll pay you fifty dollars when you get it done,” that is an Offer. And incidentally, if Tony says “O.K., Boss,” that’s a
full-fledged Acceptance.
What is it that makes
the third proposition a legal Offer, whereas the first two were not? Briefly,
it is the fact that it is definite enough so that when Tony says, “O.K., Boss,”
the boss knows and Tony knows and, most important, any judge would know exactly
what Tony was expected to do. Of course, the whole question of whether
something is an Offer or isn’t an Offer is based on the assumption that Tony
and his boss may some day end up in court over their conversation. And on that
basis, it seems fair enough to say that if Tony promised to do something
definite, he made a Contract (which means only that a court will hold him to
his promise or soak him for breaking it) and if he did not promise to do
something definite, he did not make a Contract. But the phony part is the way
The Law brings into the picture one of its irrelevant generalities – here, the
abstract idea of a legal Offer – in talking about and dealing with a simple
business arrangement.
If Tony and his boss
should ever get into court over the undug ditch, The Law of the case would be
solemnly stated like this: — The proposition was definite; therefore it was a valid Offer; therefore
once it was accepted, there was a valid Contract; therefore Tony must dig or pay. Or else: — The proposition was too
indefinite; therefore there was no
valid Offer; therefore there was no
Contract; therefore Tony need do
nothing. The point is that the question of there being or not being an Offer is
utter nonsense. The whole business could be reduced very simply to – the
proposition was definite, therefore Tony must dig or pay; or, the proposition
was indefinite, therefore Tony need do nothing. But of course, to simplify
legal reasoning even to this small extent would make the case immediately much
more comprehensible to the non-lawyer, and would leave the lawyers with no
special and mystifying lingo in which to discuss a simple little problem.
Moreover, it would leave The Law out of the picture. The Law, remember, is that
before you have a Contract, you have to have not an offer, not even a definite
offer, but a legal Offer.
To get back to the
ditch, suppose Tony, instead of saying, “O.K., Boss,” had said, “I dig him for
sixty bucks, Boss,” and the boss had then said, “O.K., Tony.” The average man
would say that they had come to terms and if The Law enforces that kind of
thing, that’’ fine. The Law would enforce it, all right, but not in those
words. To The Law, Tony’’ comment would first have to be a Counter-Offer,
involving an Implied Rejection of the Original Offer, and the boss’s “O.K.” would
then become an Acceptance of the Counter-Offer. And if, by any chance, the boss
had come back at Tony with “How about fifty-five?,” that would have been a Counter-Counter-Offer involving an Implied,
etc. It takes three years to get through law school.
The Acceptance of an
Offer is not always so simple as an “O.K., Boss,” or an “O.K., Tony,” either.
For instance, the boss might have described the ditch he wanted and how much he
would pay for it, and Tony might have said nothing, and then the boss might
have set out for the 8:20 train leaving his Offer, as it were, hanging in
mid-air. Three days later he comes back and finds the ditch all dug. Does he
have to pay the fifty dollars he Offered for it? Any moron would say, of course
he does. But why, according to The Law? Apparently there was no Acceptance, and
you can’t have a valid Contract without an Acceptance, and may be by this time
the boss has decided he doesn’t want the ditch anyway, or that fifty dollars is
too much to pay for it.
The Law slides out of
this one neatly and easily. The digging of the ditch, says The Law, amounts to
an Acceptance. Now the digging of the ditch amounted to Performance too – another,
and more or less obvious, legal concept – but that does not stop it from being
an Acceptance at the same time. And if The Law could not find an Acceptance
somewhere, there would be no valid Contract and Tony might never get his fifty
dollars. Which would be obviously silly. Just about as silly as looking all
around for an acceptable Acceptance before you see to it that he does get paid.
Suppose, though, that
when the boss gets home Tony has dug not the whole ditch but half of it. And
the boss then says, “I don’t want the ditch and I won’t pay for it so don’t
finish it,” and Tony says, “But Boss, you promised,” and proceeds to finish the
ditch and sue for his fifty dollars. The court will then settle down to
deciding, under The Law, not whether it was fair for the boss to take back his
promise after the ditch was half dug, but whether digging half the ditch did or did not amount to an Acceptance of the Offer.
For before Tony gets paid the court must find a valid Contract and before it
finds a valid Contract it must find an Acceptance.
Probably Tony would get
his fifty dollars if he had dug half the ditch by the time his boss backed
down. But if Tony had only shoveled a few spadefuls of earth by the time his
boss got home and said the ditch wasn’t wanted, those few spadefuls would never
amount to enough Acceptance to satisfy a court. Thus it becomes apparent that
somewhere along the ditch’s projected course, somewhere between the start and
the finish of the job, The Law, stooping to earth, first finds a magic line.
Then, if the boss catches Tony one inch on one side of the line, The Law will
intone – no Acceptance, no Contract, no fifty dollars; whereas if Tony is one
inch on the other side of the line, The Law will intone – Acceptance, Contract,
pay up. But neither The Law nor any lawyer can ever tell you in advance where
that magic line is. A lawyer can only tell you what The Law is. The Law, you
may remember, is that you have to have an Acceptance of an Offer before you
have a Contract.
Another great abstract
concept in the Law of Contracts is something called Consideration. There has to
be Consideration, as well as Offer and Acceptance and a number of other
solemn-spoken legalisms, before a Contract is good in the eyes of The Law. Putting
it very roughly; Consideration generally means that a contract has to be
two-sided;; each “party” to it has to have something given him or promised him
or done for him in return for what he gives or promises or does. In l’affaire Tony-and-boss, the
Consideration for Tony’s promise to dig a ditch was his boss’s promise to pay
Tony fifty dollars, and the Consideration for the boss’s promise was, in turn,
Tony’s promise – or, if Tony didn’t promise, the actual digging of the ditch
became the Consideration. (Thus, a common-or-garden digging of a ditch can be
dignified by The Law into an Acceptance, a Consideration, and a Performance,
all at the same time.)
Theoretically, the
purpose of insisting on Consideration is to see to it that a Contract is a fair
bargain. Actually however, The Law time after time finds Consideration in an
extremely unfair bargain – and fails to find Consideration where the
proposition looks relatively fair. If a man says to a panhandler, “I like your
face, so tomorrow I’m going to give you a dollar,” there is no Consideration
for the promise, and so there is no Contract, since The Law does not take such
esthetic values into account. But if a man says to a panhandler, “If you’ll
give me that cigarette in your hand, I’ll give you a hundred dollars tomorrow,”
and the bum hands over the cigarette, then there is Consideration for the promise, and there may well be a valid
Contract, and if there were enough witnesses to the transaction who will swear
to it in court, the panhandler may even get his hundred dollars.
For the Law of Contracts
rarely pays attention to surrounding circumstances. So far as The Law is
concerned, a man offered to pay a hundred dollars for a cigarette and got the
cigarette. For all The Law knows, the two men may have been lost in the middle
of a desert and the cigarette their last smoke, or the cigarette may have
belonged to Franklin Roosevelt or may have been autographed by Babe Ruth. At
any rate, someone offered a hundred dollars for it and got it. And a cigarette –
or a match, for that matter – can be pretty good Consideration, even for a
promise to pay a hundred dollars.
Now, a good half of the
voluminous Law of Contracts is concerned with what is good Consideration and
what is not good Consideration. As a matter of fact, once Offers and
Acceptances and a few other little things are out of the way, the whole
question of whether a court will or will not uphold a promise comes down to a
question of whether there was or wasn’t good Consideration for it. At least,
that is the legal way of putting it. But a non-lawyer, untrained in legal logic
and trying to find a definition of Consideration that made sense to him, might
well put the whole business completely in reverse. He might say that, so far as
he can see, Consideration is what there is
when a court upholds a promise and what there isn’t when a court refuses to uphold a promise. In other words, the
whole question of whether a court is going to say there is Consideration or not
comes down to a question of whether the court is going to uphold the promise or
not. And though to a lawyer, such a notion would amount to blasphemy, there is
no doubt at all that from a practical standpoint, the apparently naïve
non-lawyer is exactly right. For example: —
Suppose a chorus girl
has two wealthy admirers. One of them promises her a fur coat for Christmas.
The other promises a diamond bracelet. On Christmas day, the fur coat arrives
but the bracelet doesn’t. Can the chorus girl, do you suppose, go into court
and sue for the bracelet and get it, on the theory that the first admirer’s
promise of a fur coat was good Consideration for the second admirer’s promise
of a bracelet? Briefly, she cannot. And the whole idea of taking two promises,
made by separate people to a third person, and calling one of them
Consideration for the other sounds, of course, utterly fantastic.
Yet suppose the two
admirers frequented not only the same girl but the same church. And suppose the
church was putting on a subscription drive for funds. And each man agreed to
contribute a thousand dollars. And the man who promised the bracelet paid up but
the man who gave the fur coat did not – presumably because he could no longer
afford to. Could the church go into court and sue for the thousand dollars and
collect it? Briefly, it could. It could, moreover, on the theory that each of
the promises to pay a thousand dollars was good Consideration for the other
one.
A cynic might explain
all this on the ground that The Law approves of gifts to churches and does not
approve of gifts to chorus girls. The cynic would not be far wrong. Certainly
the strange doctrine whereby mutual promises to give money to worthy causes are
considered good legal Consideration for each other developed out of nothing
more complicated than a desire on the part of the courts to keep people from
welching on such promises. The Law, in order to uphold such promises, had to
find Consideration somewhere, and found it. Or as the naïve layman would put
it, Consideration was what there was
when the courts wanted to uphold a promise and what there wasn’t – and isn’t – when the courts just plain don’t care.
Perhaps the strangest of
the many things that The Law lumps together as amounting to Consideration for a
Contract is a seal on a piece of paper. A man can write down, “I, John Dough,
promise to pay Richard Rogue five hundred dollars on the first of January,” and
sign it and give the paper to Rogue and still never pay a cent, provided Rogue
cannot prove that Dough got something – some Consideration – in return for the
promise. But if Dough drops a blob of sealing wax next to his signature and
makes a mark in it, or if he just draws a circular squiggle by his name and
puts in it the initials L.S. (which are the abbreviation for the Latin, and
therefore legal, words for “seal”) then Dough will have to pay. He will have to
pay even though he got absolutely nothing in return for his promise. He will
have to pay because The Law long ago decided that a seal, real or imitation,
attached to a promise, amounted to good Consideration for that promise, despite
the fact that the man who makes the promise puts the seal there.
This, of course, is a
long way away from the original idea of Consideration as something given to or
promised to or done for the man who makes the promise. The Law’s excuse may be
to the effect that no man would be fool enough to seal a promise unless he were going to get something out of it
for himself. Yet it happens that seals were first used on contracts as Xs might
be used today – as substitutes for the signatures of those who could not sign
their names. And so The Law, in honoring the seeming solemnity of a seal, is in
effect making a stupid substitute for a signature worth more than the signature
itself. It is also saying, as our naïve layman would put it: — The Law wants to
uphold promises with seals attached; since The Law cannot find any other
Consideration for such promises it will just treat the seals themselves as
Consideration and let things go at that.
Without piling up
examples any further, it is, then, apparent that Consideration can mean the
digging of half a ditch, it can mean a cigarette, it can mean a promise by a
total stranger to give money to a church, or it can mean a piece of sealing wax
on a sheet of paper. Yet it is also apparent that none of these things has the
slightest conceivable relation to any of the others. And the list of unrelated
things that lawyers may label Consideration or that judges have labeled Consideration runs literally into the millions.
The point is that the
so-called concept of Consideration is both meaningless and useless until you
know every one of the countless fact situations about which courts have said:
Here, there is Consideration, or Here there is no Consideration. But once you
know all those fact situations, what has Consideration become? It has become an
enormous and shapeless grab-bag, so full of unrelated particulars that it is
just as meaningless and just as useless as it was before.
That same mass of
particulars might just as well be lumped together and called Infatuation, or
Omskglub, or Bingo. Any of these words would be just as helpful as the word
Consideration in trying to solve, or guessing how the courts will solve, any
new problem that comes up – which is after all the sole legitimate function of
The Law. The new problem itself will involve a set of facts. That set of facts
will look something like other sets of facts about which the courts have
intoned Consideration. It will also, inevitably, look something like other sets
of facts about which the courts have intoned No Consideration. Until a court
intones Consideration or No Consideration about the new problem, no lawyer in
the world can know whether this new set of facts belongs inside or outside the
Consideration grab-bag.
What is true of the word
Consideration is, moreover, equally true of the words Offer and Acceptance and
of every so-called concept in the Law of Contracts. It is equally true of every
so-called concept in the Law. Period. For no legal concept means anything or
can mean anything, even to a lawyer, until its supposed content of meaning has
been detailed, in terms of its precise practical application, right down tot he
case that was decided yesterday And once the concept has been so detailed, it is the details, not the concept, that
matter. The concept— no more than a word or set of words in the strange
vocabulary of The Law – might just as well be tossed out the window.
Thus, the layman who
would have defined Consideration as what there is when a court upholds a promise and what there isn’t when it refuses to uphold a
promise is absolutely right. Consideration – and every other so-called concept
or principle of The Law – amounts to a vague legal way of stating a result,
applied to the result after the
result is reached, instead of being, as the lawyers and judges stoutly pretend,
a reason for reaching the result in the first place.
By the use of these
concepts, the lawyers bewilder the non-legal world and, too often, themselves,
into supposing The Law and its rulings are scientific, logical, foreordained.
Yet no concept, or combination of concepts, or rule built out of concepts – as
all legal rules are built – can of itself provide an automatic solution to the
simplest conceivable human problem. Like the symbols on a doctor’s
prescription, it can provide no more than an impressive after-the-decision
description of what the judges order. And what the judges order is The Law.
Now a super-intelligent
and super-outspoken lawyer or judge may occasionally admit that his legal
brethren are either fools or liars when they claim that the words and concepts
and principles of The Law are any more than statements of results in legal language.
But this same rare member of the profession will probably go on to defend the
vast vocabulary of The Law – the Considerations and Malices and Domiciles and
all the rest – on the theory that it provides at least a sort of legal
shorthand, a convenient medium in which lawyers can talk to each other about
their trade.
When one lawyer,
discussing a case at a cocktail party as lawyers always do, shoots Interstate
Commerce or Privileged Communication at a fellow member of the bar, with that
well-known air of studied nonchalance which children affect when talking pig
Latin before their elders, the second lawyer has a general idea what the first
is talking about. So too, does a judge get a general idea of which way the
argument is drifting when a lawyer tosses off a legal phrase in court. And when
the judge in turn packs his opinions with such phrases, the lawyers who read
those opinions get, if nothing more, a vague sense of trading-familiar-ground.
Shorthand if you will; though it is a shorthand which all too easily becomes
unbearably long-winded, as anyone who has ever tried to read a lease or a
statute or a judicial opinion well knows.
Yet, it is precisely out
of the constant and careless use of a loose craft lingo that the lawyers’ blind
faith in the sacredness of words has grown. Meticulously trained in the
mumbo-jumbo of legal concepts, subjected to it every minute of their working
lives, the law boys passionately believe in the words they have learned to use.
To them, Due Process of Law is not just a handy way of referring to a bunch of
old decisions; it is a fighting principle. And even such legal lovelies as a
Covenant Running With the Land, or an Estate in Fee Tail, take on substance and
dignity.
Nor is it only the
plaint, ordinary lawyers who take their funny words and their word-made
abstractions seriously. So too do the lawyers who have been canonized as
judges. Most judges are more likely than not to suppose, when they order a
payment made “because” there was Consideration for a Contract, that they have
actually reasoned from the abstract to the concrete; that the unearthly concept
called Consideration has actually dictated their judgment. As though the
abstraction, Consideration, had substance, meat, body. As though it were
possible for the human mind to pull a specific result out of an abstract
concept, like a rabbit out of a hat, without first, knowingly or unknowingly,
putting the result into the concept,
so it can later be found there.
A court will solemnly
purport to decide whether Tony is going to be paid for digging a ditch – on the
basis of whether there was Consideration to support a Contract, just as though
the idea of Consideration contained within itself, like a command from God, the
right answer (or any answer). A court
will solemnly purport to decide that the State of New Jersey may not regulate
ticket scalpers – for the reason that the sale of theater tickets is a business
Not Affected With a Public Interest. A court will solemnly purport to decide
that the federal government may not supervise wages in the coal industry – on
the ground that those wages have only an Indirect Effect on Interstate
Commerce; (and then the same court will solemnly purport to decide that the
federal government may force a steel company to deal with a union – on the
ground that steel wages have a Direct Effect on Interstate Commerce). As
though, in each case, the legal phrase used were anything more than a
circumloquacious statement of the result, rather than a reason for arriving at
it. As though, in any case, any
abstract legal phrase could conceivably contain the right key – or any key – to
the solution of a concrete social or political or human problem.
Dealing in words is a
dangerous business, and it cannot be too often stressed that what The Law deals
in is words. Dealing in long, vague, fuzzy-meaning words is even more dangerous
business, and most of the words The Law deals in are long and vague and fuzzy.
Making a habit of applying long, vague, fuzzy, general words to specific things
and facts is perhaps the most dangerous of all, and The Law does that, too. You
can call a cow a quadruped mammal if you want to; you can also call a cat a
quadruped mammal. But if you get into the habit of calling both cows and cats
quadruped mammals, it becomes all too easy to slip into a line of reasoning
whereby, since cats are quadruped mammals and cats have kittens and cows are
also quadruped mammals, therefore cows have kittens too. The Law, you may
remember, calls both cigarettes and sealing wax Consideration.
CHAPTER IV
THE LAW AT ITS SUPREMEST
“We are under a Constitution, but the Constitution
is what the judges say it is.” — Charles Evans Hughes
The Supreme Court of the
United States is generally rated the best court in the country if not in the
world. Its decisions are supposed to be the wisest, the most enlightened. Its
members are kowtowed to as the cream of the legal profession, steeped not only
in the technicalities of legal logic but in the wondrous ways of abstract
justice as well. Its powers are enormous. By the margin of a single vote, its
nine members can overturn the decisions of mayors, governors, state
legislatures, presidents, congresses, and of any other judge or group of judges
in the United States. Even the direct will of the people as expressed in the
Constitution and its amendments can be brought to naught by Supreme Court “interpretation”
of constitutional language. The nine men in black robes hold the entire
structure of the nation in the hallowed hollows of their hands.
It would not, then, seem
too unreasonable for any citizen to suppose that the decrees of these solons
must of course be as impregnable to criticism or ridicule as man-made decrees
can ever be. Even if it be true that The Law in the main amounts to the
manipulation of impressive, irrelevant words by a closed corporation of
well-trained word-jugglers, The Law as handed down from Supreme Court heights
should surely have more sense and substance to it. Even if it be true that the
mass of practicing attorneys and little judges are fooling themselves and the
public when they claim that The Law as they know and use it is a logical
science instead of a pseudo-scientific fraud, surely the nine top men of the
craft must leave few, if any, loopholes in their logic and few, if any, cracks
in the intellectual armor of their decisions.
But if, by any change,
the solemn legal incantations of the Supreme Court itself can be shown up as
empty, inept, or illogical rationalizations based on nothing more substantial
than big words with blurred meanings, then it would not seem too unreasonable
for any citizen to suppose that The Law as a whole is a lot of noxious
nonsense.
Practically all the
cases that reach the Supreme Court – and reaching the Supreme Court often means
going through three or four lower courts in turn, over a period of years – are
of one of three kinds. There are, first, the otherwise ordinary law cases which
happen to involve people or companies from different states. An Iowa farmer
makes a contract to sell his hogs to a Chicago packing-house, and they get into
a fight over the terms. Or a California tourist runs down a pedestrian in
Mississippi. Or a New York newspaper publishes a libelous story about a
Virginia gentleman (and the gentleman prefers lawyers to pistols).
Ordinarily, little
disputes of this nature are handled in the state courts. If the farmer had sold
his hogs in Des Moines or the careless driver had run down a fellow-Pasadenan
or the newspaper had written about a Park Avenue debutante, not even the American
Bar Association itself could have carried the case to the Supreme Court. But in
the early days of the nation, it was supposed – and with some reason – that any
state court, disposing of a dispute between a local litigant and a resident of
another state, might tend to favor the home boy and give the stranger a raw
deal. So it was written in the Constitution that cases involving litigants from
two or more states might be tried by the federal courts; and any case tried in
the federal courts may eventually get up to the Supreme Court. Incidentally,
this privilege of taking certain legal squabbles out of the hands of the state
courts is all that lawyers mean when they talk gravely of “invoking diversity
of citizenship.”
When the Supreme Court
deals with a case of this kind, it tosses around such abstract concepts as “consideration”
and “contributory negligence” and the rest with the same abandon as does any
other court, and it regularly purports to find the specific answer to the
problem in some vague but “controlling” general principle. Yet it is perhaps
unfair to examine or judge the Court on the score of these cases. In the first
place, they are the least important that come before the Court. Furthermore, in
most of these cases, the Court is handicapped – although by a rule of its own
making – in being bound to follow The Law as laid down by the state courts in
previous similar cases. In other words, the Court is merely seeing to it that
state Law is fairly applied. It is in the other two kinds of cases that come
before it – and these include practically all the significant and publicized
decisions – that the Supreme Court is really on its own.
The second kind of case
that regularly reaches the Court is the kind that involves some dispute about
the meaning of the written laws of the United States. Not it might seem that
Congress, which has nothing else to do but write laws, should be able to set
down clearly in black and white what it is ordering done or not done, so that
the services of a court would not be needed to tell people what the laws mean.
But the first catch is that these statutes are always phrased by lawyers, in
Congress or out, so that it frequently does require the serves of other lawyers
to disentangle the meaning from the verbiage. And when the other lawyers
disagree, as they are sure to do if there are fees on both sides of the
dispute, then it takes a court, and it may take the Supreme Court, to tell the
second group of lawyers what the first group of lawyers meant when they wrote
the statute.
There is, moreover,
another catch, and it was referred to a couple of chapters back. Even when the
words of a statute appear, at least to a no-lawyer, to have a perfectly plain
and definite meaning, you can never be sure that a court will not up and say
that those words mean something entirely different. The Supreme Court is no exception.
There was the time it said that Section 20 of the Clayton Act meant, literally,
nothing at all. There was the time the Court ruled that the clause of the
Guffey Coal Act, directing that if part of the Act be declared unconstitutional
the rest of the Act should go into effect anyway, meant the exact opposite of
what that clause said. And there have been countless other examples of
meaning-mangling when the Court has undertaken to “interpret” the statutes of
the United States.
For instance, when
Congress first passed an estate tax, taxing the transfer of money or other
property at death, rich men rushed to their lawyers to find out how they could
get around the tax without giving away their wealth before they died. The
commonest and, by and large, the most effective dodge suggested and used was
for the rich man to put his property in trust – which of course only meant
giving the property to someone else to keep for him by the use of the proper
legal rigmarole – and still to keep several strings on the property himself. He
might keep the right to take the property back any time he wanted it. He might
give up this right but insist on getting the income from the property, which
was usually stocks and bonds, as long as he lived. He might keep the right to direct
the management of the property, or to say who should get it at his death. At
any rate, the idea was that since he no longer “owned” the property legally,
(legally the trustee “owned” it for him) he couldn’t be taxed for giving it to
his wife or his children at his death, even though that might be exactly what
he had ordered the trustee to do.
But Congress, foreseeing
some such subterfuge from the start, had written into the estate tax law, in
legal but comparatively comprehensible language, a special provision. The
provision was that any transfer of property, even though not done in the usual
way of making a will, which was “intended to take effect in possession or
enjoyment at death” should be soaked under the estate tax. And very soon the
question arose – and was carried up to the Supreme Court – whether an estate
tax had to be paid on property that a man had put in trust, ordering the
trustee to pay him the income as long as he lived and then to turn over the
property to his son at his death.
Certainly this would
seem to be one of the exact situations that Congress had been talking about.
The man kept right on enjoying his interest and his dividends until he died.
The son was not even privileged to smell the stocks and bonds until, at his
father’s death, they were turned over to him. From his standpoint it was the,
and not until then, that his “possession and enjoyment” of the property “took
effect.”
Not at all, said the
Supreme Court, in substance, when it was asked to “interpret” and apply the statute.
In the first place, we have a general principle to the effect that tax statutes
are to be strictly construed in favor of the taxpayer. True, we also have a
general principle of statutory construction tot he effect that words are to be
read in the light of their customary and accepted meaning (presumably the Court
did not care to deny that “enjoyment” meant “enjoyment”) but the prior
principle seems her to carry more weight. The fact that various state courts
have interpreted identical words in their state death tax statutes so as to
cover the type of transfer here at issue (the state courts had, almost
unanimously) is not controlling upon us (the Supreme Court). Finally there is the compelling fact that the
decedent (i.e. the dead man) had completely divested himself of title to the
property before his death. (Indeed he had, according to The Law, but Congress
had said nothing about legal title; it was the taking effect of enjoyment that
was supposed to matter.) At any rate, concluded the nine solons, the dodge
works; the statute doesn’t cover this case; no tax.
The pay-off came the
very day after the decision was handed down. On that day Congress amended the
statute so that the estate tax even more specifically applied to transfers of
property in which the original owner hung on to the income for himself until his
death. Of course a couple of tax lawyers hopefully asked the Supreme Court to
rule that, under certain circumstances at least, this didn’t mean what it said
either. But this time the Court upheld the tax; this time the second principle
of statutory construction as outlined above outweighed the first principle.
For yet another example
of Supreme Court “interpretation” of written laws, take the old Congressional
statute, still on the books, which says that collection of federal taxes may
not be enjoined “in any court” – a legal injunction being, of course, no more
than a court order forbidding someone from doing something. The idea, whether
wise or unwise, was to keep innumerable injunction suits from holding up the
collection of federal revenues; if a man, or a company, thought a tax was too
big or too raw or just plain illegal, he was supposed to pay it anyway and then
sue to get it back. Certainly the statute itself was, and is, so short, blunt,
and simple that no sensible person, no non-lawyer, could possibly miss its
meaning. But strangely enough, the commonest way of protesting a new federal
tax today is to sue for an injunction. The Supreme Court, in the course of “interpreting”
the statute in the light of general principles of Law, has so cluttered it with
exceptions that the exceptions all but blot out the statute.
Examples could be
multiplied almost indefinitely. For when the Supreme Court sets out to tell
Congress and the world what an act of Congress really means, only the sky and
such abstract legal principles as can be drawn from the sky are the limit. And
all that Congress can do, after such an “interpretation,” is patiently to amend
or rewrite the statute with the fervent hope that maybe this time the words
used will mean the same thing to the Supreme Court that they mean to Congress.
But in the third kind of
case that takes up the time of the Supreme Court, there is no getting around,
afterward, what the Court has decided. There is no getting around these
decisions, that is, short of amending the Constitution, changing the judges who
make up the Court, or, most difficult of all, changing the judges’ minds. The
third kind of case – the most important of all – includes all those disputes in
which someone claims that a state law or a federal law – or some action taken
under such a law – “offends” the U.S. Constitution. Here the Supreme Court has
the final word. What it decides and what it says in these cases make up that
holy hunk of The Law known as Constitutional Law.
From the practical or
non-legal viewpoint, Constitutional Law adds up, simply, to a list of all those
instances where the Supreme Court as said to Congress or to a state
legislature, “You mayn’t enforce that statute,” – or where it has said to a
federal or state executive officer or administrative board, “You mayn’t carry
out that ruling.” The instances where the Court has said, “You may” don’t count
– from a practical viewpoint. There, the situation would have remained exactly
the same if the Supreme Court had never said anything.
And it is worth noticing
that only governments, or people who are performing government jobs, ever get
spanked by the Court for being unconstitutional. The Constitution protects,
within certain limits, free speech; but a man who holds his hand over another
man’s mouth to keep him quiet, though he may get hauled into court for minor
assault and battery, will never get charged with violation of the Constitution.
Thus, what Constitutional Law deals with is the restrictions on certain forms
of government action which are laid down, in the name of the Constitution, by
the Supreme Court, which is – although many people are prone to forget this, — no
more than one branch of the federal government itself. And all that
Constitutional Law, taking it in the more legal sense, amounts to is the
cumulative efforts of the Supreme Court to explain, justify, or excuse the
restrictions it lays down.
Now the basic theory of
all Constitutional Law is both simple and sensible. It is that if Congress or
any state or city or village enacts a law that is forbidden by the
Constitution, that law might just as well never have been enacted. It can be
ignored; it is no good; it is unconstitutional. But the fireworks start when it
comes down to a question of who is going to tell whether laws are
unconstitutional – and how.
For the Constitution
itself, as is little realized, nowhere gives that right to the Supreme Court.
The Supreme Court early assumed that right, so far as state laws were
concerned, and nobody objected much because neither Congress nor the President
wanted to bother to check up on state laws. But the Supreme Court was much more
cautious when it came to telling Congress and the President that federal laws
were unconstitutional. Only once in more than sixty years after the birth of
the nation did the Court dare to peep that it thought an act of Congress was
improper. And the habit of informing the other two branches of the government
that some measure they had approved was downright illegal never really
blossomed into full flower until the twentieth century. It is still at least
arguable that Congress or the President or the two of them together have as
much right and as much ability to decide whether a proposed federal statute
disobeys the Constitution or not as have the nine bold men.
Yet, granting that by
custom if by nothing more, the last word does belong to the Supreme Court, the
question remains – how, and how well, has the Court exercised this powerful
privilege, as applied to the laws of the states as well as to those of the
nation? Have its constitutional decisions been models of logic, statesmanship,
and justice? Or have they, perhaps, been cut out of the same old legal
cheese-cloth – abstract concepts, ambiguous words, and ambidextrous principles?
There are some parts of
the Constitution that are written in such plain language that nobody, not even
a lawyer, could very well mistake what they mean. There is, for instance, the
provision that the United States shall not grant titles of nobility. There is
the provision that each senator’s term shall be for six years. There is the
provision that the states shall not coin money. Obviously, if Congress had
voted to make Charles Lindbergh a duke instead of an army colonel, or if a
federal statute were passed extending all senators’ terms to eight years, or if
the Oklahoma legislature were to enact a bill to set up a state mint and start
turning out silver dollars, any of those laws would be clearly
unconstitutional. But it would scarcely be necessary to ask the advice of the
Supreme Court on such matters. Any sub-moron could give the right answer.
There are other parts
Constitution that are not written so plainly. It may be that they use hazy
legal words or it may be that the words they use, though fairly clear at the
time of writing, have since acquired a nebulous quality through constant legal
mastication of their meaning. It is out of these parts of the Constitution – and,
for that matter, out of parts that are nowhere written in the document at all –
that Constitutional Law is really built.
Whenever a lawyer
appears before the Supreme Court and asks the Court to declare a state statute
unconstitutional, the chances are better than ten to one that he is basing his
plea on the Fourteenth Amendment to the Constitution. The changes are almost as
good that he is basing his plea on one little clause out of one of the five
sections of that longest of all the amendments. The chances are, in short, that
he is claiming that, by the statute in question, his client has been “deprived
of property without due process of law.”
For most of
Constitutional law as applied to state statutes, and as laid down by the
Supreme Court, revolves around that little phrase. On the basis of that phrase
alone, the Court has killed hundreds upon hundreds of state attempts to
regulate or tax business and businessmen. As a matter of fact, it is
practically impossible for a state to pass such a statute today without having
a legal howl carried to the Supreme Court to the effect that the statute “violates
the due process clause of the Fourteenth Amendment.”
What the, according to
its official interpreter, does the little clause mean? When is a deprivation of
property not a deprivation of property? Surely every tax is, in a sense, a
deprivation of property and some state taxes are perfectly legal. And what is
implied by that lovely limpid legalism, “due process of law”?
To help it answer these
questions the Supreme Court has evolved – and this will be a big surprise – a
batch of general principles. There is the general principle that a regulation
which is a proper exercise of the state police power is valid but that a
regulation which does not fall within the police power is deprivation of
property without due process of law. There is a general principle that
businesses affected with a public interest may, by and large, be regulated but
that to regulate a business not so affected is a d.o.p.w.d.p.o.l. There is a g.
p. that a tax on anything over which the state has jurisdiction is proper, but
that a tax on something over which the state has no jurisdiction is a d.o.p.,
etc. And so on.
Of course, just what
state police power is and just what a business affected with a public interest
amounts to and just what state jurisdiction to tax means is, in each case,
another and longer story. There are sub-principles and sub-sub-principles and
exceptions. And of course, too, there is not a word in the Constitution about
police power or businesses affected with a public interest or state
jurisdiction to tax. But this fact does not stop the Supreme Court from using
such concepts as the basis of Constitutional Law. Even the Highest Court of the
Land laying down the Supreme Law of the Land reverts to the same old hocus-pocus
of solemn words spoken with a straight face, and meaning, intrinsically,
nothing.
If this indictment
sounds too strong, consider what a member of the Court once had to say about
the uses to which his brethren put that little clause of the Fourteenth
Amendment. These are the words of the late Justice Holmes: —
“I have not yet
adequately expressed the more than anxiety that I feel at the ever-increasing
scope given to the Fourteenth Amendment in cutting down what I believe to be
the constitutional rights of the states. As the decisions now stand I see
hardly any limit but the sky to the invalidating of those rights if they happen
to strike a majority of this Court as for any reason undesirable. – Of course
the words ‘due process of law’ if taken in their literal meaning have no
application to this case; — we should be slow to construe the clause in the
Fourteenth Amendment as committing to the Court, with no guide but the Court’s
own discretion, the validity of whatever laws the States may pass.”
Justice Holmes’ brief
warning about the temptation to follow personal preferences where The Law is so
amorphous and indeterminate was spoken, as usual, in dissent. But what did he
imply by his reference to “the words ‘due process of law’ if taken in their
literal meaning”? What did that little clause of the Fourteenth Amendment,
since inflated by the Supreme Court to tremendous significance, originally
mean? It makes an interesting story.
The Fourteenth Amendment
was one of three amendments added to the Constitution shortly after the Civil
War to protect the civil rights of the negroes. The first of its five sections
included the command, presumably intended to prevent persecution of the
ex-slaves: — “nor shall any state deprive any person of life, liberty, or
property without due process of law.” But the words used in that clause had
appeared in the Constitution before.
They had appeared in the
Fifth Amendment as part of the original Bill of Rights. There, seventy-seven
years before the Fourteenth Amendment was adopted, it was decreed: — “nor shall
(any person) be compelled in any criminal case to be a witness against himself,
not be deprived of life, liberty, or property without due process of law.” Because
the Fifth Amendment was said to restrict only the federal government, it was felt necessary to place the same
restriction on the states, in the Fourteenth.
What, then, was the “due
process” business intended to mean? How did it happen to have been coupled with
the prohibition against making a man take the stand against himself in a
criminal trial? It was no accident. For “due process,” before the Supreme Court
began to build general principles around it, meant nothing more complicated
than “proper procedure.” And being deprived of life, liberty, or property
without due process of law meant only being hanged (deprived of life), jailed
(deprived of liberty), or fined (deprived of property) without a proper trial.
Thus, the “due process” clause
was originally intended to apply only to criminal cases. The idea that any
statute, much less a non-criminal one like a tax or a regulation of business,
after being properly passed by a legislature, signed by a governor, and
enforced according to its terms by judges, could amount to a deprivation of
anything without due process of law
would once have been laughed out of court. Yet the Supreme Court has built the
bulk of its Constitutional Law, as applied to the states, on precisely that
strange supposition. It has taken a simple phrase of the Constitution which
originally had a plain and precise meaning, twisted that phrase out of all
recognition, ringed it around with vague general principles found nowhere in
the Constitution, and then pontifically mouthed that phrase and those
principles as excuses for throwing out, or majestically upholding, state laws.
Nor should it be
supposed that the silly house-of-cards logic of Constitutional Law works only
in what might be called unprogressive ways. True, most of the state statutes
the Supreme Court has condemned as “violating” the “due process” clause of the
Fourteenth Amendment have been such measures as minimum wage laws, laws
protecting labor union activities, laws and rulings setting public utility
rates, certain types and uses of income and inheritance taxes, and other
restrictions on the business of making money and keeping it. But, as mentioned
before, the word-magic of legal processes recognizes no socially significant
limitations. Constitutional Law can be just as illogical and irrelevant on the
liberal side.
There are, for instance,
as few people are aware, no words anywhere in the Constitution protecting
freedom of speech, freedom of the press, freedom of religion, or freedom of
assembly against infringement by the states.
The sole reference to these civil liberties in the whole Constitution is in the
First Amendment. All that the First Amendment says if that “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press, or the right of the people
peaceably to assemble and to petition the government for a redress of
grievances.”
Yet, as almost everyone
is aware, the Supreme Court has on occasion protected civil liberties against
infringement by state law or by city ordinance (cities being considered,
legally, as merely sub-divisions of states, subject to the same constitutional taboos).
Huey Long’s attempt to gag the opposition press under a Louisiana statute was
called unconstitutional by the Court. So were Mayor Hague’s efforts to clamp
down on freedom of speech under a Jersey City ordinance. Why unconstitutional –
inasmuch as it was surely not Congress that passed either of these measures?
The answer lies once more in the well-worn “due process” clause of the
Fourteenth Amendment. Laws such as these, said the Court, deprive people of
liberty without due process of law. A worthy sentiment unquestionably, but just
as illogical and just as unwarranted by the true meaning of the constitutional
phrase as all the other and less popular “due process” decisions.
There is, moreover, a
clear danger in leaving the protection of civil liberties against state
infringement to the whims and general principles and legal logic of the Supreme
Court – instead of writing into the Constitution, as should have been done long
ago, a broad and definite protection of those liberties against all
infringement. For, just as the Court has held that some state restrictions of
freedom of speech and the rest are bad, under the “due process” clause, so it
can hold, and has held, that other restrictions are not outlawed by the Fourteenth Amendment. Where the logic of the
legal rule is so tenuous, the Court can blow now hot, now cold. As is true of
practically all Constitutional Law, it is impossible to tell what the Court is
going to call unconstitutional, until the Court has gone into its trance and
evoked a spirit in the shape of a “controlling” principle.
Though the bulk of
Constitutional Law as applied to the states stems in a mystic manner from the “due
process” clause of the Fourteenth Amendment, its parent clause in the Fifth
Amendment has not been used or needed so often as an excuse for calling federal
laws unconstitutional. Railway workers were doubtless interested to learn that
the Congressional outlawing of yellow dog contracts – contracts forbidding
membership in a labor union – deprived the railroad companies of liberty and
property without due process of law. Women who worked in Washington, D.C., were
doubtless fascinated to hear that their employers had been similarly deprived,
by a Congressional act setting minimum wages for women. Both the railway men
and the Washington women were probably especially impressed to be told by the
Supreme Court that anti-union discrimination and sweatshop wages were protected
against Congressional interference by none other than the American Bill of
Rights – of which the Fifth Amendment is, of course, a part.
But the Supreme Court’s
pet reason for calling federal laws unconstitutional is even more complicated
than the “due process” gag, and even harder to trace back to the Constitution
itself. The general idea is that the federal government may not do anything
that the Constitution does not specifically say it may do. This notion is what
is known as “strict construction” of the Constitution, and it is all mixed up
with the slogan of “states’ rights” which is a very nice and very handy
political slogan for those who do not like what the federal government happens
to be doing at the moment.
The chief reasons usually
given by the Supreme Court for backing the strict construction principle – instead
of the contradictory “loose construction” or
let-the-federal-government-do-anything-the Constitution-doesn’t-say-it-mayn’t-do-principle
– are two in number. The first reason is that the Founding Fathers, in person,
were strict constuctionists and intended to hog-tie the federal government when
they wrote the Constitution. But that, as every historian knows, is utter
nonsense. The Founding Fathers, almost to a man avowed enemies of “states’ rights,”
were out to give the federal government all the rope they could possibly give
it. Still, as the present uses of the “due process” clauses indicate, a little
matter like historical inaccuracy is never allowed to interfere with a general
principle of Law.
The second reason the
Court gives for its zealous protection of “states’ rights” is the Constitution’s
Tenth Amendment. (Those amendments begin to look more important than the whole
original Constitution; and to any of the legal tribe they are.) What the Tenth
Amendment says is: — “The powers not delegated to the United States by the
Constitution, nor prohibited by it to the states, are reserved to the states
respectively, or to the people.” So far, so good. But the question remains – what
powers are delegated to the United
States by the Constitution? And it is in answering that question, which is left
hanging in mid-air by the Tenth Amendment and which is more confused than
clarified by the rest of the Constitution, that the Court has so often
performed back somersaults of logic right into the camp of the strictest strict
constructionists. All, of course, in the name of The Law – and the Founding
Fathers.
There is, for instance,
a clause of the Constitution (the original Constitution, for a change) to the
effect that “The Congress shall have power to lay and collect taxes, duties,
imposts, and excises, to pay the debts, and provide for the … general welfare
of the United States.” Lawyers and law professors and judges have written
tracts and treatises and whole books about the meaning of this clause. The
strict construction boys say it means that Congress can collect taxes, etc. in order to pay the debts and provide
for the general welfare of the people. The loose construction boys say it means
that Congress can collect taxes and also
pay debts and also – with laws that
aren’t necessarily tax laws – provide for the general welfare. You can guess
which side the Supreme Court is on. Why? Why, because that’s what the Founding
Fathers meant – which, as a matter of historical record, they almost surely
didn’t; and because of the Tenth Amendment – which obviously has nothing
whatsoever to do with the case.
It was on a line of
so-called reasoning of this sort, only more extreme, that the Supreme Court
threw out the original Agricultural Adjustment Act. And this despite the fact
that Congress, well aware that the Court would only let it provide for the
general welfare in tax statutes, had
passed the Act as a tax on farm
products, the proceeds to go as bounties to those farmers who cut down the
acreage of their crops. Now, many people thought the A.A.A. unwise and rejoiced
at the Supreme Court decision. But even they would admit that it is certainly
not the job nor the right of the Supreme Court to judge the wisdom or the
foolishness of laws. That, supposedly, is Congress’ business. The Court, as it
has proclaimed countless times, can only decide whether a law is
constitutional. Here is why, according to the Supreme Court, the A.A.A. was
unconstitutional:
It used federal tax
money to accomplish an unconstitutional purpose. What was that? Federal
regulation of farmers. Why is federal regulation of farmers unconstitutional?
Because regulation of farmers is exclusively the right of the states. Why?
Because of the general principle that the federal government is a government of
limited powers (strict construction), because of the Founding Fathers (yes?),
and specifically because the Tenth Amendment reserves to the states those
powers not delegated to the federal government. Well, isn’t one of the powers
delegated to the federal government the power to collect taxes (and, obviously,
spend them) to promote the general welfare? Granted. Then why isn’t the A.A.A.,
whether you like it or not, an exercise of that power; or do you mean that
giving bounties to certain farmers does not, in your judgment, promote the
general welfare? “No,” said the Court, “we are not now required to ascertain
the scope of the phrase “general welfare of the United States’ or to determine
whether an appropriation in aid of agriculture falls within it.” Then why, in
heaven’s name, isn’t the A.A.A. perfectly constitutional as a tax to promote
the general welfare, which you grant Congress has the right to enact? Because
it uses the tax money to accomplish an unconstitutional purpose, namely,
federal regulation of farmers.
And there sat the
Supreme Court at the end of its opinion, exactly where it had started, after
one of the most perfect examples of arguing-in-a-circle that any court has ever
indulged in. But plenty of long words and solemn-spoken principles of Law gave
this circular reasoning an air of great depth and respectability. After all,
the Court was only patiently explaining that the Constitution clearly forbade
Congress to enact the A.A.A. Any lawyer, at least, would understand.
Another power given to
the federal government by the Constitution is the power to regulate interstate
commerce. Because that power is granted very specifically and plainly, many of
the most important federal statutes are fashioned around it. But you can’t get
by the Supreme Court that easily, when the Court is out to lay down
Constitutional Law.
When Congress tried to
discourage child labor by forbidding the shipment of things made by child labor
in interstate commerce, the Court calmly said this is no regulation of interstate commerce. It’s just a nasty old
invasion of states’ rights and it’s unconstitutional. There were, of course,
general principles which “controlled.” When Congress then put a high tax on
child labor, figuring that it still retained the power to levy taxes at least,
the Court said this is no tax; it’s a
regulation and it’s still unconstitutional. In so saying, the Court
conveniently ignored the fact that it had previously let Congress, by exactly
the same device of a high tax, put an effective stop to the issuance of state
bank notes and to the sale of yellow oleomargarine (which was passed off as
butter) and to the interstate shipment of opium and other narcotics. In those
cases, presumably, the “controlling” principles were different.
It is, moreover, worth
noticing – as indicating the tremendous power of those nine anointed lawyers – that,
despite efforts to amend the Constitution, child labor still flourishes in this
country more than twenty years later, just because the Court once said that the
Constitution protects the sacred right to employ child labor against any
nefarious attempts by Congress to interfere with that right. And similarly it
took almost twenty years before the Constitution was amended to allow a federal
income tax, after the Court had solemnly figured out, through a series of
abstractions too involved to be recounted here, that the original Constitution
forbade Congress to tax citizens’ incomes.
It was under the Court’s
“interpretation” of what the interstate commerce clause did not mean that such New Deal laws as the
National Industrial Recovery Act and the Guffey Coal Act met their death. It
seems there are two principles. One is that Congress may regulate anything that
affects interstate commerce directly. The other is that Congress may not
regulate anything that affects interstate commerce only indirectly. Of course,
there is not a word in the Constitution itself about direct or indirect effects
on interstate commerce but that does not keep those effects from being a very
vital consideration in Constitutional Law.
Applying these
principles, the Court said that working conditions in companies doing
interstate business affected interstate commerce only indirectly. So it was
perfectly apparent that the N.I.R.A. and the Guffey Coal Act, both of which
made bold to regulate those working conditions, were downright
unconstitutional. But by the time the Wagner Labor Act came along a couple of
years later, working conditions in companies doing interstate business had
suddenly acquired a direct effect on interstate commerce, and so a law
regulating those conditions was perfectly constitutional. The relevant
principles of Constitutional Law remained, of course, unchanged. It was merely
that, this time, a different principle was “controlling.”
There was, moreover, a
second reason why the N.I.R.A. was unconstitutional – for the Court is not
always content to kill a law with one shot of Constitutional principle. The
second reason is especially interesting because it involves one of those chunks
of Constitutional Law that is not even remotely derived from anything written
in the document that most people think of as the Constitution. The Court just
made this up all by itself.
The basic principle that
the Court made up is that Congress may not delegate or hand over any of its
lawmaking power to anyone else. Now it is clear that if this principle were
really followed there wouldn’t be any United States government. All the
thousands of rules and regulations and orders, little laws every one of them,
that are formulated day after day by every branch of the government – by the
commissions, like the Interstate Commerce Commission and the Federal Trade
Commission, by the departments, all ten of them, and by the branches and
bureaus of the departments, like the Patent Office and the Coast Guard and the
rest – all these rules and regulations would have to be passed by Congress
itself. It is only because Congress has always delegated the largest part of
its lawmaking power, after laying down the broad, general outlines of a law,
that the federal government has been able to function at all.
But the Supreme Court,
as might be expected, has an answer to all this. It is in the form of sub-principle
or exception to the primary principle. It is that Congress may delegate to
other people the power to fill in the details of a law, but not the power
really to make a law. That lets out
all the commissions and the departments and the rest, and doubtless lets
Congress breathe a lot easier. But when the N.I.R.A. came up for review,
despite the fact that Congress had certainly passed the law, and, as usual,
filled numerous pages with its written provisions, the Court said Congress was
handing over its law-making power to the keepers of the Blue Eagle. Why the
Recovery Administration was really making
laws whereas the National Labor Board, for instance, is merely filling details,
only the Supreme Court knows and it won’t tell. It is much too busy expounding
Constitutional Law.
Perhaps the best-known
of those pieces of the Highest Law of the Land that the Court has manufactured
out of ethereal logic with no help at all from the words of the document is the
piece that deals with the federal government taxing the state governments and
vice versa. It all started with Chief Justice Marshall’s famous bromide that “the
power to tax involves the power to destroy.” Therefore, argued Marshall, with
his Court chiming in, we can’t have the states laying taxes on the property or
the activities or the bounds or the employees of the federal government and we
can’t have the federal government levying taxes on the states either. For if we
allowed such taxes, one of our governments might insidiously destroy the other.
Even if there isn’t anything about it in the Constitution, such taxes are
unconstitutional. As a matter of principle.
It developed, as it
always does, that there were sub-principles. The Court discovered one to the
effect that the federal government, while it could not tax the “governmental
functions” of the state governments, could
tax the “non-governmental functions” of the state governments – which may sound
confusing to a non-lawyer in that it is hard to think of something done by a
government being non-governmental, but which was perfectly clear to the Supreme
Court. Also, while a “direct” tax levied by a state on something connected with
the federal government was all wrong, an “indirect” tax was all right. Now, for
some reason wrung from the metaphysical reaches of Constitutional Law, the
Court considers an inheritance tax an “indirect” tax. Therefore any state can
slap on a tax when a man dies and leaves his federal bonds to his wife. But
since an income tax is a “direct” tax, no state can tax the man – or his wife
either – on the income he makes from those federal bonds. Presumably – going
back to the primary principle – such a tax might destroy the federal
government.
The corresponding
immunity of state bonds from the federal income tax raises yet another
question. Can you necessarily change the Supreme Court’s notions about
Constitutional Law even by amending the Constitution? Apparently not. For the
income tax amendment gave Congress the power to tax incomes “from whatever
source derived.” The words could scarcely be plainer or stronger, and part of
the reason for writing them in was to put an end to the immunity rule so far as
the federal income tax was concerned. But the Court still says that it is
unconstitutional for the federal government to tax the income from state bonds.
Thus, the unwritten piece of the Constitution that the Court discovered all by
itself carries more weight with the Court than the written words of the
document.
Finally, there was the
time the Court was called upon to decide the delicate question whether the
salaries of federal judges could be taxed under the federal income tax. The
judges were not part of any state
government, so they could not come in under the mutual immunity rule. But there
was another opening. The Constitution says that the salaries of federal judges
may not be reduced while the judges are in office. Aha, said the Court; to make
us pay an income tax on our salaries the way everybody else does would clearly
be just the same thing as making us
take a salary cut. And that, obviously, would be unconstitutional. Of course,
there was still that little phrase in the amendment – about incomes “from
whatever source derived.” But by a strange reversal of customary reasoning, the
Court seemed to feel that the old no-salary-cuts clause amended the amendment
instead of vice versa. Again, doubtless, a matter of principle.
So runs in brief the
story of how Constitutional Law, the Highest Law of the Land is laid down by
the Supreme Court of the Land. Here is The Law at its best; here are the
lawyers at their most distinguished, their most powerful. Still comparing piles
of abstract, indecisive, and largely irrelevant principles as though they were
matching pennies on a street corner. Still draping in the longiloquent language
of a generalized logic the answers – some good, some bad – to specific social
problems. And purposing all the while to be applying the commands and
prohibitions of the U.S. Constitution. No wonder Charles Evans Hughes, long
before he became the Supreme Court’s Chief Justice, once blurted out with a
bluntness that is rare in lawyers” – “We are under a Constitution, but the
Constitution is what the judges say it is.”
And of course the judges
themselves, as could scarcely fail to occur when the rules of the game are so
vague, are forever disagreeing about what the Constitution is. Every
man-on-the-street has heard of five-four decisions and dissenting opinions. But
a dissenting opinion, though it may make its author feel a lot better for
having written it, is in essence no more than a critical and occasionally
literary essay. What is said by the five or six or seven or eight justices who
voted the other way is The Law. It is just as much The Law so far as that case
is concerned as if the decision had been unanimous.
Thus it can happen – and
has often happened – that one ma, one judge, holds the “meaning” of the
Constitution in his hands. This possibility was never more strikingly
illustrated than when, less than a year after the Court called a New York
minimum wage law for women unconstitutional, it called a Washington state
minimum wage law for women constitutional – all because one man, Justice
Roberts, voted on the other side. It seems that the New York statute deprived
employers of their property without due process of law and therefore violated
the Fourteenth Amendment, whereas the almost identical Washington statute was a
proper exercise of the state police power and therefore didn’t violate
anything. Of course, it was not the principles, the basic Law, that changed
with Justice Roberts’ mind. It was merely that in one case, one principle was “controlling”;
in the other case, it gave way to a different principle.
And it is worth
repeating, and remembering, that the alleged logic of Constitutional Law is
equally amorphous, equally unconvincing, equally silly whether the decisions
the Court is handing down are “good” or “bad,” “progressive” or “reactionary,”
“liberal” or “illiberal.” The principles under which the Washington minimum
wage statute was blessed had no more to do with the problem, or with the
Constitution, than those under which the New York minimum wage statute was
damned. The Wagner Labor Act was called constitutional for no more solid
reasons than those for which the Agricultural Adjustment Act was called
unconstitutional. Freedom of the press in Louisiana was defended by logic no
less far-fetched than that which upheld the freedom to employ child labor. No
matter in which direction the legal wand is waved, the hocus-pocus remains the
same.
There is one more
principle of Constitutional Law that is worth mentioning, although it has been
rather sadly neglected. It is that any law, state or federal, is entirely
proper and valid unless clearly and unmistakably forbidden by the words of the
Constitution. But then, if this principle were regularly followed, there would
not be much use for any of the other principles. There would not be much
Constitutional Law either.
CHAPTER V
NO TAX ON MAX
“’If the law supposes that,’ said Mr. Bumble…,
‘the law is a ass, a idiot.’” — Charles Dickens
In case anyone should
suppose that the exalted acme of the lawyers’ art known as Constitutional Law
can not possibly be so unconvincing, so inept, so silly as a quick summary of
Supreme Court logic perhaps makes it sound, it might not be too bad an idea to
take one of the Court’s ukases about the-Constitution-and-what-it-really-means,
and give that ukase, or opinion, a thorough going-over. The subject of this
little experiment in vivisection will be a case known to the lawyers as Senior
v. Braden. It was decided by the Supreme Court in the spring of 1935.
No, Senior v. Braden was
not, of course, chosen at random. It is, for a Supreme Court opinion,
mercifully short. It involves the Court’s favorite constitutional springboard,
the good old “due process” clause of the Fourteenth Amendment. It reveals the
Court at its most legalistic, its most vacuous, its most unsubstantial – though
for that purpose any one of a thousand cases might have served equally well.
Furthermore, Senior v.
Braden was not a unanimous decision; it was a six-three decision. But the
existence of a dissent in any case involving “interpretation” of the
Constitution has been, for some time now, the rule rather than the exception.
And the dissent, be it remembered, doesn’t count anyway. The majority opinion
is The Law, the gospel – so much so that even the dissenting judges must accept
it, as with Senior v. Braden they have accepted it, when the case is used as
the basis of legal argument in the future.
In short, Senior v.
Braden is today an integral and respectable part of The Law of the Land as set
forth by the top craftsmen of the profession. Here, then, interspersed with an
almost literal translation of each paragraph into non-legal language, and with
a few pertinent (or maybe impertinent) comments, is the Supreme Court’s opinion
in Senior v. Braden. Hang on to your hats: —
“January 1, 1932 – tax
listing day – section 5328-1, the Ohio General Code provided that all
investments and other intangible property of persons residing within the state
should be subject to taxation. Section 5323 so defined ‘investment’ as to
include incorporeal rights of a pecuniary nature from which income is or may be
derived, including equitable interests in lands and rents and royalties divided
into shares evidenced by transferable certificates. Section 5638 imposed upon
productive investments a tax amounting to 5 per centum of their income yield;
and section 5389 defined ‘income yield’ so as to include the aggregate income paid
by the trustee to the holder, etc….”
(Under Ohio law, anyone
who lived in Ohio and owned stocks or bonds or such had to pay a tax of 5% on
the income from them, even if he got the income through a trustee or
keeper-of-the-property-for-him.)
“Appellant owned
transferable certificates showing that he was beneficiary under seven separate
declarations of trust, and entitled to stated portions of rents derived from
specified parcels of land – some within Ohio, some without. On account of these
beneficial interests he received $2,231.29 during 1931….”
(The man who brought
this case up to the Supreme Court – and by way of introduction, through no
courtesy of the Court, meet Max Senior – had some pieces of paper showing he
had a stake in seven plots of land, in Ohio and elsewhere. His stake was worth
over $2,000 to him in one year.)
“The tax officers of
Hamilton County, where appellant resided, threatened to assess these beneficial
interests, and then to collect a tax of 5% of the income therefrom. To prevent
this, he instituted suit in the Common Pleas Court. The petition asked that
section 5323, General Code, be declared unconstitutional and that appellees be
restrained from taking the threatened action. The trial court granted the
relief as prayed; the Court of Appeals reversed, and its action was approved by
the Supreme Court.”
(The local
tax-collectors – one of whom, incidentally, was named Braden – tried to get one
hundred-odd dollars out of Max. He – through his lawyer, naturally – claimed
the Constitution protected his hundred-odd dollars, took the case to court, and
got licked – so far.)
“With commendable
frankness, counsel admit that under the Fourteenth Amendment the state has ‘no
power to tax land or interests in land situate beyond its borders; nor has it
power to tax land or interests in land situate within the State in any other
manner than by uniform rule according to value.’ Consequently, they say ‘if the
property of appellant, which the appellees seek to tax in this case, is land or
interest in land situate within or without the State, their action is
unconstitutional and should be permanently enjoined.’”
(The lawyers for the
state of Ohio say – with a sort of double-dare in their tone – that if the
Court should by any chance call this a tax on land, then they give up. They
know that the Court won’t let Ohio tax land in, say, West Virginia; that any
such attempt would be labeled a taking of property without due process of law
in violation of the Fourteenth Amendment. And – still with a double-dare – they’re
willing to throw up the whole case and admit that Ohio can’t even tax Ohio land
in this way – if this is a tax on
land. –Notice, incidentally, that here, in a rather casually phrased reference
to some of the lawyers’ arguments, is the only mention of the Fourteenth
Amendment in the whole opinion.)
“The validity of the tax
under the federal Constitution is challenged. Accordingly we must ascertain for
ourselves upon what it was laid. Our concern is with realities, not
nomenclature. Moffitt v. Kelly, 218 U.S. 400, 404, 405; Macallen Co. v.
Massachusetts, 279 U.S. 6230, 625, 626; Educational Films Corporation v. Ward,
282 U.S. 379, 387; Lawrence v. State Tax Commission 286 U.S. 276, 280. If the
thing here sought to be subjected to taxation is really an interest in land,
then by concession the proposed tax is not permissible. The suggestion that the
record discloses no federal question is without merit.”
(This is a serious
matter because somebody brought up the Constitution. Therefore we, the Supreme
Court, are going to have to make up our own minds whether this is a tax on land
or not. As we’ve said at least four times before – and if you don’t believe us,
here’s where to look it up – you can’t fool us with words; we want to know what’s
really going on. But if we decide this is
a tax on land, then we don’t have to
bother to make up our own minds whether the Constitution forbids it; we’re
perfectly willing to take the lawyers’ word on that little matter. And
incidentally, the idea that this might not be any business of ours at all is
beneath serious consideration.)
“Three of the parcels of
land lit outside Ohio; four within; they were severally conveyed to trustees.
The declaration of trust relative to the Clark-Randolph Building Site, Chicago,
is typical of those in respect of land beyond Ohio; the one covering East Sixth
street property, Cleveland, is typical of those where the land lies in Ohio,
except Lincoln Inn Court, Cincinnati. Each parcel has been assessed for
customary taxes in the name of legal owner or lessee according to local law,
without deduction or diminution because of any interest claimed by appellant
and others similarly situation.”
(To go back to Max
Senior and his profits – each piece of land he had a stake in was being kept
and managed, for all the people who had stakes in it, by another fellow. Also,
each piece of land had been soaked for the regular local property taxes,
regardless of the fact that a lot of people were making money out of it.)
“The trust certificates
severally declare: — That Max Senior has purchased and paid for and is the
owner of an undivided 340/1275 interest in the Lincoln Inn Court property; that
he is registered on the books of the trustee as the owner of 5/3250 of the
equitable ownership and beneficial interest in the Clark Randolph Building
Site, Chicago; that he is the owner of 6/1050 of the equitable ownership and
beneficial interest in the East Sixth street property, Cleveland. In each
declaration the trustee undertakes to hold and manage the property for the use
and benefit of all certificate owners; to collect and distribute among them the
rents; and in case of sale to make pro rata distribution of the proceeds. While
certificates and declarations vary in some details, they represent beneficial interests
which, for present purposes, are not substantially unlike. Each trustee holds
only one piece of land and is free from control by the beneficiaries. They are
not joined with it in management. See Hecht v. Malley, 265 U.S. 144, 147.”
(The legal language of
the documents under which friend Max holds his stake in these plots of land all
refer to him as the owner of something. He doesn’t, however, own a little chunk
of any of the plots in the sense that he could go and build a fence around it
and sit there. He hasn’t even anything to say about the way it’s run. All he
gets is his share of the profits when they come in. – “Our concern,” remember, “is
with realities, not nomenclature.”)
“The state maintains
that appellant’s interest is ‘a species of intangible personal property
consisting of a bundle of equitable choses in action because the provisions of
the agreements and declarations of trust of record herein have indelibly and
unequivocally stamped that character upon it by giving it all the qualities
thereof for purposes of the management and control of the trusts. At the time
the trusts were created, the interests of all the beneficiaries consisted
merely of a congeries of rights etc., and such was the interest acquired by
appellant when he became a party thereto. . . . The rights of the beneficiary
consist merely of claims against the various trustees to the pro rata
distribution of income, during the continuance of the trusts, and to the pro
rata distribution of the proceeds of a sale of the trust estates upon their
termination.’”
(Ohio, out to collect
its tax, claims that since Max not only can’t put a fence around any of the
land in question but hasn’t even anything to say about the way the land is run,
he doesn’t own anything but a chance of getting profits if there are any. – “Our concern is with realities, not
nomenclature.”)
“Appellant submits that
ownership of the trust certificate is evidence of his interest in the land,
legal title to which the trustee holds. This view was definitely accepted by
the Attorney General of Ohio in written opinions Nos. 3640 and 3869 (Opinions 1926,
pp. 375, 528) wherein he cites pertinent declarations by the courts of Ohio and
of other states. See, also, 2 Cincinnati Law Rev. 255.”
(Max claims that, since
he has some pieces of paper and collects money on them, he must own something
in the way of land, even though he admits that legally the fellows who run the
land for him are supposed to own it. Some ex-Attorney General of Ohio once
agreed with this idea in a general way and as applied to someone else. – “Accordingly
we must,” remember, “ascertain for
ourselves upon what it – the tax – was laid.”)
“The theory entertained
by the Supreme Court concerning the nature of appellant’s interests is not
entirely clear. The following excerpts are from the headnotes of its opinion
which in Ohio constitute the law of the case:”
(Even we, the Supreme
Court of the United States, can’t make much sense out of the legal language in
which the Supreme Court of Ohio told what it thought Max Senior owned. Try some
of it yourself:)
“ ‘Land trust
certificates in the following trusts (the seven described above), are mere
evidences of existing rights to participate in the net rentals of the real
estate being administered by the respective trusts.’ ”
(What Max owns is
nothing by the right to collect some of the profits. – Not so hard, was it,
after some of the U.S. Supreme Court’s own language.)
“ ‘Ascribing to such
certificates all possible virtue, the holder thereof is at best the owner of
equitable interests in real estate divided into shares evidenced by
transferable certificates. Section 5323, General Code (114 Ohio Laws, p. 715),
does not provide for a tax against the equitable interests in land, but does
provide a tax against the income derived from such equitable interests.’”
(Still the Ohio Supreme
Court talking: — Even if we were to admit that Max does own something in the
way of land, Ohio isn’t out to tax whatever it is that Max owns; Ohio is taxing
the income Max made out of it.)
“Apparently no opinion
of any court definitely accepts the theory now advanced by appellees, but some
writers do give it approval because of supposed consonance with general legal
principles. The conflicting views are elaborated in articles by Professor Scott
and Dean Stone in 17 Columbia Law Review (1917) at pp.. 269 and 467.”
(Back to the U.S.
Supreme Court now: — The state’s idea that all Max owns is the right to get
profits has never, so far as we know, been sanctified as The Law by any court
anywhere – perhaps because “we” couldn’t understand what the Ohio Supreme Court
said in this very case. We admit that mere lawyers and law teachers have played
with the idea, including one of our own august number, long before what he
thought made any difference so far as The Law was concerned. – Note, too, the
reference to “general legal principles.”)
“Maguire v. Trefry, 253
U.S. 12, much relied upon by appellees, does not support their position. There
the Massachusetts statute undertook to tax incomes; the securities (personalty)
from which the income arose were held in trust at Philadelphia; income from
securities taxable directly to the trustee was not within the statute. The
opinon accepted and followed the doctrine of Blackstone v. Miller, 188 U.S.
189, and Fidelity & Columbia Trust Co. v. Louisville, 245 U.S. 54. Those
cases were disapproved by Farmers’ Loan & Trust Co. v. Minnesota, 280 U.S.
204. They are not in harmony with Safe Deposit & Trust Co. v. Virginia, 280
U.S. 83, and views now accepted here in respect of double taxation. See Baldwin
v. Missouri, 281 U.S. 586; Beidler v. South Carolina Tax Commission, 282 U.S.
1; First National Bank v. Maine, 284 U.S. 312.”
(The state of Ohio has
tried to throw our own words back at us by reminding us of a case in which we
once said that it was perfectly all right for a state to tax a man, who lived
in the state, on profts that came to him through someone who was keeping
property for him in another state. But that case was really quite different.
One of the differences was that in that case, the tax was on income. – And
here, by pretty definite implication, the Court seems to be saying, for the
only time in the whole opinion, that the Ohio tax is not a tax on Max’s income. – Anyway, the “controlling” principles of
that case don’t control any longer, as we’ve said in several cases since then.
The principle that usually controls these days is that is we see anything
getting taxed twice, it’s probably unconstitutional.)
“In Brown v. Fletcher,
235 U.S. 589, 599, we had occasion to consider the claim that a beneficial
interest in a trust estate amounts to a chose in action and is not an interest
in the res, subject of the trust.
Through Mr Justice Lamar we there said:”
(To get back to the real
problem, which is what does Max Senior own anyway, somebody else once asked us
to decide, as a general principle, whether a man who makes money, out of
property that is being kept and managed for him, owns only the right to get
money, or whether he sort of owns some of the property. This is what we – meaning
the nine lawyers who then made up the Supreme Court, most of them now being
dead – had to say:)
“ ‘If the trust estate
consisted of land, it would not be claimed that a deed conveying seven-tenths
interest therein was a chose in action within the meaning of section 24 of the
Judicial Code. If the funds had been invested in tangible personal property,
there is, as pointed out in the Bushnell case (Bushnell v. Kennedy, 9 Wall.
387, 393), nothing in Section 24 to prevent the holder, by virtue of a bill of
sale, from suing for the “recovery of the specific thing, or damages for its
wrongful caption or detention.” And if the funds had been converted into cash,
it was still so far property – in fact instead of in action – that the owner,
so long as the money retained its earmarks, could recover it or the property
into which it can be traced, from those having notice of the trust. In either
case, and whatever its form, trust property was held by the trustee, not in
opposition to the cestui que trust,
so as give him a chose in action, but in possession for his benefit, in
accordance with the terms of the testator’s will. — ”
(If a man with some land
that was being held for him by somebody else should transfer part of his stake
in the land to a third person, no one would be fool enough to claim that the
piece of paper involved in the transfer was a “chose in action” – a “chose in
action” being, roughly, a piece of paper that entitles its owners to certain
rights, including usually the right to collect money from someone – in the
sense that the words “chose to action” are used in one section of the federal
statute that tells the federal courts how various kinds of lawsuits should be
handled. If, instead of land, it had been goods or cash that was being held,
and someone had swiped the goods or the cash, then the man with a stake in them
could bring a lawsuit to get the stuff back. At any rate, whoever might have
been holding the property for whoever had a stak ein it would, in truth, have
been holding the property for whoever had a stake in it. – And just try to figure out what any of this,
whatever it means, has to do with Max Senior and the tax he doesn’t want to
pay.)
“ ‘The beneficiary here
had an interest in and to the property that was more than a bare right and much
more than a chose in action. For he had an admitted and recognized fixed right
to the present enjoyment of the estate, with a right to the corpus iteself when
he reached the age of 55. His estate in the property thus in the possession of
the trustee, for his benefit, though defeasible, was alienable to the same
extent as though in his own possession and passed by deed. Ham v. Van Orden, 84
N.Y. 257, 270; Stringer v. Young, Trustee, 191 N.Y. 157, 83 N.E. 690; Lawrence
v. Bayard, 7 Paige (N.Y.) 70; Woodward v. Woodward, 16 N.J. Eq. 83, 84. The
instrument by virtue of which that alienation was evidenced – whether called a
deed, a bill of sale, or an assignment – was not a chose in action payable to
the assignee, but an evidence of the assignee’s right, title, and estate in and
to property.’”
(The man who was having
some property held for him in this case – namely, the case that had been
decided 15-20 years before – owned somehting more than a “chose in action.” This
fellow, as a matter of fact, had the right to any profits from the property
that wa sbeing held for him and also the right tot ake over the property into
his own hands when he reached a respectable age. He also had a perfect right to
sell his rights – and, apparently, he had done just that. The paper tha
represented the sale of these rights was not a “chose in action”; it was proof
that the man who bought the rights now had certain rights in the property in
question.)
“The doctrine of Brown
v. Fletcher is adequately supported by courts and writers. Narragansett Mutual
Fire Ins. Co. v. Burnham, 51 R.I. 371, 154 Atl. 909; Bates v. Decree of Judge
of Probate 131 Me. 176, 160 Atl. 22; Bogert, Handbook of the Law of Trusts,
430; 3 Pomeroy Equity Jurisprudence Fourth Ed., 1928, sec. 975, p. 2117; 17
Columbia Law Review, 269, 289. We find no reason for departing from it.”
(Judges and others have
from time to time agreed with the general principles just quoted. So do we.)
“The challenge judgment
must be
Reversed.”
(Therefore, Max Senior –
remember him? – doesn’t have to pay his tax.)
And that, ladies and
gentlemen, is the opinion of the Supreme Court of the United States in the case
of Senior v. Braden.
* * * * *
In order to find out
what the Supreme Court was talking about – and also what it wasn’t bothering to
talk about – in the case of Senior v. Braden, it is necessary to go back a
little into the general principles of Constitutional Law that presumably “controlled”
the decision. They start in the Fourteenth Amendment – despite the fact that
the Fourteenth Amendment played very little part in the Court’s opinion. And of
course they start in the “due process” clause.
The primary principle
involved is to the effect that when a state tries to tax something which it has
no “jurisdiction” to tax, that amounts to an attempt to deprive somebody of
property without due process of law. Inasmuch as “jurisdiction” means, loosely,
“power,” such a rule seems not too unreasonable. At least, it seems not too
unreasonable once you have swallowed the Court’s habit of using the Fourteenth
Amendment for other purposes than the protection of negroes, and others,
against unfair criminal trials. But obviously that leaves it entirely up to the
Supreme Court to decide what a state has power or “jurisdiction” to tax and
what it hasn’t power or “jurisdiction” to tax. And in the course of deciding,
the Court has laid down a lot of sub-principles which give “jurisdiction” a
special, if sometimes indefinite, meaning.
The first sub-principle
is that a state has no “jurisdiction” to tax land outside its borders. And that
– regardless of what relation it has or hasn’t to the Fourteenth Amendment – seems
eminently sensible and fair. It also seems eminently pointless. For New
Hampshire, for instance, would no more try to slap a property tax on a farm in
Iowa than the United States would try to tax a ranch in Argentina. There wouldn’t
be any way of collecting the tax and no state would be idiotic enough to try.
But, starting from that
fair, if pointless, principle, the Court has gradually built up other
principles about what a state has or hasn’t “jurisdiction” to tax. A lot of
property today, like stocks and bonds and I.O.U’s and mortgages and trust
certificates, is not so solid and stationary as land, and so, occasionally,
different states try to tax that kind of property at the same time and the
owners of the property don’t like it. The Supreme Court has obligingly
enshrined in The Law various complicated sub-principles telling which states
have “jurisdiction” to tax that kind of property and which haven’t. And these “jurisdiction”
rules have been carried over, with refinements and exceptions, to other kinds
of taxes than property taxes – especially to inheritance taxes.
Where inheritance taxes
are concerned, the Court has laid down the principle that if two states try to
tax the transfer of the same property at the death of its owner, then
invariably one of the states has no “jurisdiction” to tax that transfer – even
though the owner may have lived in one state and kept the property in another.
This is what the Supreme Court was talking about in Senior v. Braden when it
mentioned “views now accepted here in respect of double taxation” and named
several cases. All the cases named dealt either with inheritance taxes, or else
with the application of various sub-principles of the “jurisdiction” rule to
property taxes on other kinds of property than land.
The state of Ohio, not
unnaturally, had assumed that all these cases had very little to do with the
problem in Senior v. Braden. The state of Ohio thought it was arguing about an
income tax, since the tax it was trying to collect from Max Senior was computed
by taking 5% of part of his income. And the Supreme Court had never before
stretched any of its “jurisdiction” rules so far as to stop a state form taxing
the income of someone who lived in the sate. That is why the state of Ohio
thought the case of Maguire v. Trefry, which allowed an income tax very much
like the tax on Max Senior, was, even though older, more to the point than all
the inheritance tax and property tax cases the Court named.
The Court, however,
seemed to say that the principles of Maguire v. Trefry were no longer “controlling”
because the inheritance tax and property tax cases decided since then had made
other principles more important – even for income taxes. But as a matter of
fact, the Court seemed to forget what it had decided in an even more recent
case called Lawrence v. State Tax Commission – although the Lawrence case was
actually mentioned in the opinion, in another connection. For in Lawrence v.
State Tax Commission, which dealt with an income tax, the principles of Maguire
v. Trefry had been followed as perfectly good Law. In short, the Court had
held, even after laying down the principles that limited state “jurisdiction” to
tax in the inheritance tax and property tax cases named, that it was quite all
right – and no violation of the Fourteenth Amendment – for a state to tax the
income of someone who lived in the state.
So, in order to make any
sense at all out of Senior v. Braden, the Supreme Court must have been saying
that the tax on Max Senior wasn’t an
income tax but a property tax. And indeed the Court implied as much in its
opinion and has said so, definitely, since.
Now as everybody knows,
a property tax is universally considered to be a tax measured by the value of
the property and collected every year whether the owner makes profits out of
the property or not. The tax on Max Senior was measured by his profits, and if
there hadn’t been any profits there wouldn’t have been any tax. But that little
practical matter didn’t stop the Supreme Court from calling it a property tax
anyway.
The Court’s excuse
presumably was (and notice how often you have to guess what the Court means
just to make its decision fit its own principles of Law) that the Ohio
legislature, in writing the tax statute, had inadvertently labeled it a
property tax, even though it was measured by income. The fact that the Ohio Supreme Court had ignored this slip
and treated the tax as what, practically speaking, it was, didn’t phase the
U.S. Supreme Court. Nor did the fact that it is strictly the business of the
Ohio courts and no concern at all of any federal court to “interpret” the
statutes of Ohio. For the U.S. Supreme Court blithely treated the tax as a
property tax, meanwhile proclaiming, you may remember, “Our concern is with
realities, not nomenclature.” In Constitutional Law, a rose by any other name
does not always smell so sweet.
Even granting then, with
a gulp, that it was a property tax that Max Senior didn’t want to pay, why had
Ohio no “jurisdiction” to collect it? For one of the cardinal sub-principles of
the “jurisdiction” rule is that a state has
“jurisdiction” to put a property tax on property owned by someone who lives in
the state, if that property, instead of being land or goods, consists of pieces
of paper, such as stocks or bonds, which give the owner certain rights. And
surely what Max Senior owned was a few pieces of paper, called trust certificates,
that entitled him to some of the profits from seven plots of land, on which he
had no right at all to go build a fence, or a house. There is at least no doubt
that if Max had bought, instead of trust certificates, shares of stock in a
corporation that managed plots of land, just as the trustees managed the plots
Max had a stake in, then the state of Ohio could have taxed those shares of
stocks without the Supreme Court raising a finger to stop it. What difference?
The difference, and the
only difference, is in the legal wording of the pieces of paper that did give
or might have given Max a right to Share in the profits. If he had held shares
of stock he would have been nothing but a stockholder. But since he held trust
certificates, he was, in legal language, a “cestui que trust.” And being a “cestui
que trust” – which only means
someone-who-trusts-someone-else-to-hold-property-for-him – Max Senior claimed
he was, in a sense, the owner of some of the land that was being held for him.
He claimed he was the owner of land despite the fact that he had no right
whatsoever to build a fence on the land or to manage it, but only to collect
some of the profits.
If it was land that Max
owned (some of that land being outside Ohio) and if the tax the state was
trying to collect was a property tax, then,
argued Max, Ohio has no “jurisdiction” to collect the tax. For, by the very
first sub-principle of the “jurisdiction” rule, a state has no “jurisdiction” to
tax land outside its borders. And so, at long last, appears the question to
which the Supreme Court devoted almost its entire opinion in Senior v. Braden,
taking the problems and principles discussed thus far almost entirely for
granted. The question was this: — Does Max own land, or does he merely own the
right, written on some pieces of paper, to get some of the profits from certain
plots of land that are being held by somebody else?
In seeking the answer to
this question, the Court, despite its vaunted “concern for realities,” paid no
attention whatsoever to the practical set-up of the business arrangement under
which Max Senior had collected $2,000 in one year. Instead, the Court looked
back to an old Supreme Court case of almost 20 years before, in order to find a
general principle. The case was Brown v. Fletcher. Yet it happens that the
problem presented and solved in Brown v. Fletcher had not the remotest relation
to the Fourteenth Amendment, to taxes on land, or to taxes on anything else.
The problem of Brown v.
Fletcher was purely a problem of the proper legal procedure in the federal
courts under the federal statute governing such procedure. The statute denied
the privilege of bringing suit in the federal courts to certain “assignees of
choses in action” – or people to whom had been transferred pieces of paper
entitling their owners to certain rights. The central character of Brown v.
Fletcher claimed that a piece of paper that had been transferred to him was not a “chose in action” and that he was privileged to sue in the federal
courts. (His piece of paper, incidentally, though something like Max Senior’s
trust certificates in its legal language, gave him many more rights than Max
Senior ever got from the trust certificates.) The Supreme Court agreed that the
paper was not a “chose in action” and that its owner was entitled to bring suit
in the federal courts. And that was all Brown v. Fletcher amounted to.
In the course of
deciding this, the Supreme Court wrote the two long and rather incomprehensible
paragraphs that were quoted verbatim in the Senior v. Braden opinion. And it
was on the basis of those two paragraphs, as expressing a relevant general
principle, that the Supreme Court of a generation later concluded that Max
Senior did, in a sense, own land, and
so could not be taxed by the state of Ohio.
Thus, the reasoning of
the Court in Senior v. Braden boils down to something like this: — The nine
judges who held our jobs almost 20 years ago, in deciding a problem of federal
court procedure, expressed the general principle that certain pieces of paper,
giving their owner certain rights, were not, technically, “choses in action.” Therefore,
what Max Senior, whose trust certificates read something like those pieces of
paper, really owns is land. Some of
that land is outside Ohio. Ohio is trying to tax some of the profits Max Senior
made out of his stake in that land. The tax, even though it is measured by the
profits so that it works like an income tax, is called a property tax in the
statute. Therefore it is a property
tax. Since it is a property tax it is a tax on what Max Senior owns. But what
Max Senior really owns is land, some of it outside Ohio. Therefore Ohio is
trying to tax land outside Ohio. But we have a principle that no state has “jurisdiction”
to tax land outside its own borders. We also have a principle that a state tax
on something which the state has no “jurisdiction” to tax deprives the taxpayer
of his property without due process of law and so violates the Fourteenth
Amendment. Therefore, Ohio’s attempt to collect a tax from Max Senior is
forbidden by the Constitution. Therefore, Max can keep his hundred-odd dollars.
Nor, if you can hold on
just a little longer, is that all there is to Senior v. Braden – although it is
all that can be explained even by the circular, irrelevant abstractions of
legal logic. For Max was allowed to keep every cent of the hundred-odd dollars
that Ohio was trying to take from him in taxes. Yet part of the land that Max
had a stake in was not outside Ohio at all; it was inside Ohio. So even if it
was a property tax, and even if what Max owned was really land, why couldn’t
Ohio tax the land inside its own borders? What was unconstitutional about that?
There isn’t even a legal
answer. The Supreme Court’s “jurisdiction” principles under the Fourteenth
Amendment allow – as they would obviously have to allow – a state to tax its
own land. True, the Ohio land that Max had a stake in had already been taxed
once that year under a regular property tax. So, considering the tax in the
case as a property tax, that made two property taxes on the same land. But
there is nothing in the Constitution that forbids a state to do that if it
wants to. There is not even a Supreme Court principle that forbids it, the
Court’s rule against double taxation applying only to taxation of the same
thing by two states. The Ohio
constitution might well have forbidden it. But the job of saying what the Ohio
constitution forbids or doesn’t forbid is, in legal tradition, exclusively the
job of the Ohio courts. And the Supreme Court of Ohio had said that, so far as
it was concerned, the tax on Max Senior was entirely constitutional.
Of course, there was
that double-dare of the state’s lawyers in the case, to the effect that if the
Supreme Court was crazy enough to call the tax a tax on land, then the Court
might just as reasonably throw out the whole tax. Apparently what the Court did
was simply to take the dare – despite the fact that there was not so much as a
shadow of even a legal excuse for throwing out that part of the tax that
applied to Ohio land. Thus not only the inaccurate interpretation of a phrase
of the Constitution, or the invoking of vague general principles about “jurisdiction”
or the dependence on tax nomenclature in the face of a contradictory reality,
or the muddled language of a case about something entirely apart from the issue
that was decided many years ago – not only any of these but even the foolish
bravado of a lawyer – can serve as a foundation on which the Supreme Court may
build a chunk of Constitutional Law.
Here, in miniature, is
the whole vast structure of sacred abracadabra that makes up the Highest Law of
the Land. And any non-lawyer with half a brain in his head, if only he could
penetrate the smoke-screen of legal language, would recognize the alleged logic,
not only of Senior v. Braden but of almost any Supreme Court case your could
name, as nothing more nor less than an intellectual fraud. The fraud may have
been more obvious in Senior v. Braden than in most, simply because the
manipulation of legal lingo and logic was more inept and clumsy than usual. But
even when the nine master jugglers are working at their smoothest, it requires
only a trained eye to see that those weighty thoughts they seem to be tossing
around are in reality no more than balloons, full of hot air and easily
punctured.
And the worst of it is
that the Supreme Court – like all courts and all lawyers – is all the time
dealing with and settling practical problems. There was a very real problem in
state finance involved in Senior v. Braden. By virtue of the Court’s decision,
Ohio lost in revenue not only Max Senior’s hundred-odd dollars but the
thousands upon thousands of dollars it would otherwise have collected as taxes
from other Ohioans who had been making money the same way Max had been making
money. Should Ohio then look to another kind of tax to make up the lost
revenue? Or should it amend the old statute, call the tax an income tax this
time, and hope that the Supreme Court, three or four years later when a case
gets that far, will be impressed by the label and hold the statute now
constitutional?
Regardless of the right
answer, the Court’s solemn consideration of the type of property Max Senior
owned or didn’t own seems scarcely pertinent to a solution of Ohio’s – or Max
Senior’s – fiscal difficulties. Even if the Court had snapped that Ohio was
taxing legitimate investment too heavily and ought to cut down on its spending
anyway and that, therefore, the tax under dispute might not be collected, such
a decision, though hardly judicial in manner, would at least have made a great
deal more common sense than any discussion of “choses in action” and interests
in land and similar irrelevant ambiguous abstractions.
Furthermore, the larger
question which the Court has been gaily disposing of, in the name of the
Fourteenth Amendment, under its general principles about state “jurisdiction” to
tax involves an extremely practical problem too. From the angle of the state
governments, the problem is simply: — Now that the prople and companies and property
we have to collect taxes from in order to keep running are spreading themselves
over a dozen or 48 states, as most of them are today, how are we suppposed to
keep up with them and what kind of taxes can we impose on them without either
chasing them out of our reach entirely or else going so easy on them that we
don’t collect enough money to keep going? From the angle of the taxpayers,
whether people or companies, the problem is simply: — Just because our business
or our property spreads over a lot of states, is it fair or right that every
one of those states, or most of them, should soak us with the same kind of
taxes so that we have to pay tribute a dozen times for doing, or owning, one
thing? Whether it is income taxes, property taxes, or inheritance taxes that
are involved, the basic practical problem is the same.
Toward the efficient
solution of that problem, the Supreme Court’s “jurisdiction” principles
contribute, literally, nothing. A categorical statement that the Fourteenth
Amendment denies to any state but the state of domicile (what is domicile, who
is she – these days?) the “jurisdiction” to impose an inheritance tax on the
transfer of intangible property (when is intangible property not intangible, as
with Max Senior’s trust certificates?) may sound very learned. As may the rule
that acquisition of a business site within a state by intangibles gives even a
non-domiciliary state “jurisdiction” to tax. But neither the formulation nor
the application of such principles and their sub-principles and the exceptions
sheds even the dimmest light on the basic difficulties of the state governments
and the taxpayers.
The fact is that the
Supreme Court has neither the power nor the ability to find, for the problem in
government here involved, a thorough or intelligent or workable solution. Which
fact does not bother the Court in the slightest degree. It just goes merrily on
laying down and applying its silly little abstract rules about “jurisdiction” to
tax. And giving each of those silly little rules as much potency and prestige
as if it had been adopted by the people as an amendment to the Constitution.
As in Senior v. Braden,
so in all the “jurisdiction” to tax cases. The meat of the real problem is
passed by; The Law sinks its teeth into the fluff of abstract logic. As in the “jurisdiction”
to tax cases, so in all the cases under the “due process” clause of the
Fourteenth Amendment. As in the cases under the “due process” clause of the
Fourteenth Amendment, so in all Constitutional Law. As in Constitutional Law,
so in all the lesser branches of legal learning. So in the whole of The Law.
And only the solemn and mystifying mumbo-jumbo of legal language keeps the
non-lawyers form catching on.
For instance, the
citizens who directly and indirectly voted the Fourteenth Amendment into the
Constitution to protect the rights of the negroes just after the Civil War
might be a little surprised to learn that under The Law they had forbidden the
state of Ohio to collect a tax of one hundred-odd dollars from Max Senior.
CHAPTER VI
THE LAW AND THE LADY
“Women have, commonly, a very positive moral
sense; that which they will, is right; that which
they reject, is wrong.” — Henry Adams
The lawyers have made
such a complicated mess out of the word-game they call legal reasoning that any
effort to dissect even a tiny part of that reasoning and show it up for the
fake that it is, inevitably makes tough going. In a sense, that fact has been
the intellectual Maginot Line of The Law. Plenty of people have long suspected
that the lawyers with their long words were indulging in nothing more nor less
than wholesale flimflam, but when it comes down to trying to take the flimflam,
with all its myriad trappings, apart, people just can’t be bothered. And even a
personally conducted tour through the mirror mazes of legal logic becomes
tiring and confusing.
It may, however, be
possible to indicate something of the futility and irrelevance of legal
processes merely by an imaginary application of the legal way of settling problems
to a field in which decisions are customarily made in a more direct and
efficient manner. Suppose, just for instance, a housewife – by repute one of
the more practical species of human being – were to run her affairs for a day
according to the legal pattern of principles, counter-principles, and concepts.
Suppose —
In the first place, she
would of course be guided, from afar, by a dim and conveniently ambiguous ideal
of personal justice. She would be bothered about doing the right thing, making
the right decision, but since she would be her own Supreme Court, anything she
did would be right – after she did it. The difficulty would lie in deciding
beforehand what to do and what not to do, in accordance with the inexorable
rules of her personal Law.
That Law would have two
primary principles. The first would be that anything which seems presently
desirable is right. The second would be that anything which seems presently
desirable is likely, in the long run, to be wrong. Of course, the two principles
might occasionally seem to conflict in their application to a specific fact
situation, but that would be of minor importance since both, in the abstract,
would be entirely valid lergal principles. Each, moreover, would be buttressed
with sub-principles and sub-sub-principles which might come in handy in making
certain sorts of decisions.
The lady’s day begins.
Her first decision, obviously, is whether to get up or lie in bed a little
longer. She remembers that The Law is that anything which seems presently desirable
is right and certainly lying in bed seems presently very desirable. Yet before
rushing to a snap judgment, she must dispose of the principle which holds that
anything which seems presently desirable is likely, in the long run, to be
wrong. That principle, of course, has certain exceptions and qualifications.
One is to the effect that any action, or inaction, which seems presently so
desirable that a failure to indulge the desire may affect the disposition over
a period of hours will, in such circumstances, be the right action, or
inaction, at least if that period of hours is taken as controlling for the
future. Clearly, that exception now applies.
Yet, in all fairness,
the lady must admit that there is an exception to the desirable-equals-right
rule, to the effect that the denial of whatever seems desirable may, by
imparting a sense of nobility, become desirable in its own right and therefore
proper. There seems to be a deadlock. It will be a close decision.
Perhaps precedent will
help. Yesterday the lady arose immediately. But yesterday’s decision is not
necessarily controlling because yesterday the sun was shining; today is an ugly
day. Such a disparity in the relevant facts cannot fairly be ignored. The
problem remains unsettled.
Then the lady remembers
that she has an appointment with her hairdresser that morning. Manifestly, this
brings into play the well-recognized legal rule, a sub-principle of the
desirable-equals-right principle, that appointments, voluntarily made and in which
time is of importance, must be kept on time. The sub-sub-principle that
appointments voluntarily made in haste and later regretted need not be kept on
time and the sub-sub-sub-principle that appointments involuntarily made need
not be kept at all are both obviously beside the point here. The Law, finally
tracked to earth, seems to decree that the lady must rise.
And so she gets up. Not,
of course, because she wants to keep an appointment with her hairdresser.
Rather, because all the relevant legal principles point to such a decision.
Anything which seems presently desirable is right – and she wants to get her
hair done. Anything which seems presently desirable is likely in the long run
to be wrong – and she would still like to lie in bed a little longer. Anything
so desirable that a failure to indulge the desire will affect the disposition,
is right, in at least a limited sense – and if she doesn’t get her hair done
today she’ll go mad. The denial of what seems desirable can impart a sense of
nobility which makes the denial proper – and she will indeed feel noble if she
gets right up. Appointments must be kept on time if you want to keep them on
time – and the lady is afraid her hairdresser would be unable to fit her in
later. Moreover, yesterday’s precedent, although not here controlling, points
suggestively to the same decision. There is thus no doubt at all about The Law
of the case. And the decision automatically follows The Law.
The lady’s next two
problems are comparatively easy, their answers dictated by long lines of solid
precedent. Should she bother to brush her teeth? Yes, because she has always
interpreted her Law that way, under the general principle that whatever is said
to be good for the health is right. Should she turn her hot shower cold before
she gets out? No, because she has always interpreted her Law that way, under
the general principle that whatever is said to be good for the health is likely
to be undesirable and therefore, by simple legal logic, wrong.
The choice of a dress to
wear downtown, a choice which narrows down to a practical black number, two
months old, and a brand-new blue and white print, brings other legal concepts
into the picture. There is the concept of economy – embodied in the principle
that what is economical is right and also in the sub-principle that what is
economical in the short run is probably extravagant in the long run – and this
concept seems to favor the black dress which will not get dirty so easily. But
the concept of smartness, a typical legal concept in that its contents and
meaning are constantly changing from time to time and from place to place,
seems to favor the blue and white dress.
The lady’s decision in
this matter is judicial in the extreme. She bows to the paramount principle
that in question of dress, whatever is smart is right, recognizing as she does
so that this is one of her few rules of Law to which there is almost no
exception, the only legal question which ever arises concerning it being what
is smart. But in deference to the principle of economy, she determines to keep
her dress clean by riding downtown in a taxi instead of on a street car. In
thus reconciling a conflict between two apparently irreconcilable principles,
the lady has displayed her mastery of the legal process.
Once downtown, the lady
is aware that she has entered a different legal jurisdiction. The same general
principles are, in the main, still good Law, but their interpretation tends to
vary. For instance, what seems presently desirable is still right and what
seems presently desirable is still likely, in the long run, to be wrong, yet
the question as to what ispresently
desirable involves a greater emphasis on the rule that what other people
believe to be proper is desirable, and a correspondingly lesser insistence on
the home rule that what other people believe to be proper is usually
undesirable.
Thus the lady, after
careful consideration of the question whether to give her hairdresser a
generous tip or merely an adequate tip, finds the solution in the principle
that what other people believe to be proper is desirable, especially when
outside the home jurisdiction. Narrowing down this principle so that “people” means
“person” and “person” refers to the hairdresser – a simple legal deduction – she
leaves a generous tip. This ruling is also in strict conformity with the
abstract legal ideal of economy, when considered in the light of the
well-recognized legal tenet that what is economical in the short run is
probably extravagant in the long run; clearly the hairdresser might do a careless
job on her next time if she left a stingy tip.
At lunch, the lady is
confronted with the problem whether to order or refrain from ordering a rich
pastry dessert. Here, the primary principle concerning desirability and the
secondary principles concerning what is said to be healthy appear to be both cogent
and conflicting. But only on the surface, of course. Reaching into the recesses
of her legal system, the lady recalls that there is a pertinent and useful
corollary to the sub-principle that the denial of whatever seems desirable may,
by imparting a sense of nobility, become desirable and therefore right. The
corollary is to the effect that whatever seems desirable but not too desirable
may be denied with greater impunity than whatever seems extremely desirable,
since the sense of nobility imparted by the denial depends on the denial itself
and not on the degree of desirability of that which is desired. Accordingly,
the lady passes up the cream-puff.
The lady’s luncheon
companion is going shopping. Will the lady come along? Decision, of course,
must be dictated not by whim but by Law. It is The Law that to waste time is
wrong. It is, further, The Law that to devote oneself to trivial matters when
important matters demand attention is to waste time – and various household
chores await the lady at home. Yet it is an accepted rule that, outside the
home jurisdiction, household chores take on the color of triviality. The
exception to this rule, that household chores assume extreme importance,
especially outside the home jurisdiction, in the face of an unwanted
invitation, is clearly inapplicable here. Furthermore, there exists an
equitable principle, frequently superseding the more rigid rules of Law, that
accommodation to the requests of others may be proper, per se. The “per se” settles
it.
In the course of the
shopping, the lady sees a hat. She does not need the hat but she likes it and
wants to own it. Decision here is extraordinarily simple – in line with basic
legal principles. The obviously relevant principle has the sanctity of
constitutional doctrine and involves one of the most sacred of civil liberties.
For freedom of contract may not under any circumstances nor under any guise of
pseudo-legality be denied. All the precedents and the entire history of her
personal Law point unswervingly to the conclusion that failure to purchase a
becoming hat amounts to no less than an infringement of contract. The decree in
the case is therefore automatic.
And so it goes.
Throughout the day, the lady’s problems, major and minor, are subjected to a
system of abstract and solemn-sounding principles which for her make up The
Law. Decision in each case is made in strict accordance with those principles.
In fact, the principles dictate the proper answers.
Finally, after dinner,
the question arises whether the lady and her husband should go to the movies or
should instead stay home and listen to the radio and go to bed early. She wants
to go to the movies. Her husband wants to stay home. But clearly her husband’s
decision is not and should not be controlling. Like the decree of a lower
court, it must be given due weight and yet the whole problem must be carefully
examined ab initio in order to insure
that final decision be rendered in accordance with The Law.
She remembers that The
Law is that anything which seems presently desirable is right, and certainly
going to the movies seems presently very desirable. Yet before rushing to a
snap judgment, she must dispose of the principle which holds that anything which
seems presently desirable is likely, in the long run, to be wrong. That
principle, of course, has certain exceptions and qualifications. One is to the
effect that any action, or inaction, which seems presently so desirable that a
failure to indulge the desire may affect the disposition over a period of hours
will, in such circumstances, be the right action, or inaction, at least if that
period of hours is taken as controlling for the future. Clearly that exception
now applies.
Yet, in all fairness,
the lady must admit that there is an exception to the desirable-equals-right
rule, to the effect that the denial of whatever seems desirable may, by
imparting a sense of nobility, become desirable in its own right, and therefore
proper. There seems to be a deadlock. It will be a close decision.
Perhaps precedent will
help. Last night the lady and her husband went to the movies. But last night’s
decision is not necessarily controlling because last night it was Gary Cooper;
tonight it is some foreign film. Such a disparity in the relevant facts cannot
fairly be ignored. The problem remains unsettled.
Then the lady realizes
that she is quite tired and has a busy day ahead of her tomorrow. Manifestly,
this brings into play the well-recognized legal rule, a sub-principle of the
desirable-probably-wrong-in-the-long-run principle, that it is safer, even at
some inconvenience, to look one’s best at a tea party. Various sub-principles
and exceptions and qualifications, concerning the amount of inconvenience which
the rule will tolerate, are obviously beside the point here. The Law, finally
tracked to earth, seems to decree that the lady and her husband must stay home.
And so they stay home.
Not, of course, because the lady wants to look well at her tea party tomorrow.
Rather, because all the relevant legal principles point to such a decision.
Anything which seems presently desirable is right – and she wants to get enough
sleep. Anything which seems presently desirable is likely in the long run to be
wrong – and she would still rather like to go to a movie. Anything so desirable
that a failure to indulge the desire will affect the disposition is right, in
at least a limited sense – and if she doesn’t look well tomorrow, she’ll never
forgive herself. The denial of what seems desirable can impart a sense of
nobility which makes the denial proper – and she will indeed feel noble if she
accedes to her husband’s wish to stay home. It is safer to look one’s best at
tea parties – and the lady is afraid it might be unpleasant to flout this principle.
Moreover, last night’s precedent, although apparently pointing to the opposite
decision, is clearly distinguishable. There is thus no doubt at all about The
Law of the case. And the decision automatically follows The Law.
* * * * *
Now, this resume of a
lady’s day in which all decisions are directed by abstract principles, or rules
of Law, may sound absurd in the extreme. It is plain that most of the
principles are couched in such vague, general language that they cannot
possibly be guides to a specific decision on a specific matter. It is plain
that practically every principle can be countered with another principle or
exception which contradicts in whole or in part the first principle. It is
plain that not one of the lady’s decisions necessarily follows from the
principle or concept which is said to dictate it. it is plain that in every
instance, the “controlling” principle, or principles, resembles nothing so much
as a loose rationalization of what she is going to do, applied after the actual
decision is made.
Furthermore, it is plain
that if someone else, say the lady’s husband, had been acting as Supreme Court
for her, many of the rulings would have gone the other way, even though the
same set of guiding principles had been rigidly adhered to. In any conflict
between the concepts of smartness and economy, for instance, the decision might
have favored economy and yet done the proper obeisance to smartness under the
rule that it is smart to be economical. Freedom of contract might well have
been interpreted as freedom to refuse to buy a hat, no matter how becoming.
Despite its limited scope, the lady’s legal system would hardly have needed
stretching to do double duty all the way down the line.
Absurd indeed. But not
one iota more absurd than the system of Law under which we actually live. For
most legal principles, too, are couched in such vague, general language that
they cannot possibly be guides to a specific decision on a specific matter; practically
every legal principle, too, can be countered with another principle or
exception which contradicts in whole or in part the first principle; scarcely
ever does a court decision necessarily follow from the principle or concept
which is said to dictate it; and in just about every instance, the “controlling”
principle, or principles, resembles nothing so much as a loose rationalization
of what a court orders done, applied after the actual decision is made.
If the lady’s legal
system and the way that system worked for her seems more patently ridiculous than
the workings of The Law, it is only because most of the principles of The Law
are phrased in unfamiliar and therefore impressive language, so that their
vagueness, their contradictions, their frequent and obvious use merely to
justify desired results, all these are concealed from the non-lawyer’s
untrained eye. Substitute “within the legislative intent” for “desirable,” substitute
“executory contract contemplating adequate consideration” for “appointment with
the hairdresser,” and the lady’s legal principles begin to take on a fake
dignity, an air of solemnity and importance. This dignity, moreover, has no
relation at all to the meaning, or lack of meaning, of the words used.
Or, going at it from the
opposite angle, take the well-bolstered legal principle that state regulation
of private enterprise amounts to deprivation of property without due process of
law unless sanctioned as a proper exercise of the state police power. Substitute
for it the simple and equally enlightening statement that certain state laws
are bad unless they are good – and The Law begins to sound as silly as the
lady.
As a matter of fact, The
Law and those who lay it down are often considerably sillier than the lady. For
the lady, as was perfectly apparent, knew what she wanted and decided
accordingly, unbothered by the requirement that she justify each of her decisions
with a broad generalization of principle. That requirement was easily satisfied
because all the decisions she was called on to make affected her, the judge,
directly and immediately, and because the business of fitting a principle to a
ready-made decision was, as it always is in law and elsewhere, a simple matter.
But the judges who make
legal decisions frequently have not the slightest interest in the outcome of
the cases they are deciding. Of course if they have such an interest – and even
judges are not immune from political and social emotions; they like or hate the
New Deal, they approve or disapprove of labor unions, they trust or mistrust
big business – then they can and often do, consciously or unconsciously, revert
to the legal procedure of the lady. They judge first and justify afterward. And
in so doing they are acting, if not in a judicial, at least in a practical
manner. (Being practical and being judicial in the cold legal sense are just
about mutually exclusive anyway.)
In run-of-the-mine
cases, however, the sort that make up much of the business of The law, the
judges don’t care who wins nor what the eventual decision will be. The lawyers
in the case always care; they know beforehand what decision they want and so
they, in the practical manner of the lady, can fit their generalizations, their
legal pleading, to the desired result. Not so the judges. How then do the
judges ever achieve an answer?
What the judges do,
actually, is what the lady pretended to do – and, for that matter, what the
judges themselves pretend to do when the answer is of any concern to them. They
balance – don’t laugh – one set of abstract principles against another and,
through some sort of trance-like transference, come out with a specific
decision. They take the long words and sonorous phrases of The Law, no matter
how ambiguous or empty of meaning, no matter how contradictory of each other;
they weigh these words and phrases in a vacuum – which is the only way they
could be weighed; and then they “apply” the weightier to the dispute in
question with all the finality that might be accorded a straight wire from God.
It is as though a court
were to have considered, with complete disinterest, the case of our friend, the
lady; were to have balanced against each other the principles put forth by
opposing counsel to the effect that what is desirable is right and that what is
desirable is wrong; were to have decided, in the abstract, of course, that
what-is-desirable-is-wrong was the more compelling of the two; and were then to
have informed the lady that since it
is The Law that what is desirable is wrong, therefore
the lady must get out of bed. Certainly, time and time again, in actual law
cases, opposing counsel will put forth as the bases of their arguments legal
principles which are respectable and yet are directly contradictory.
Equity-will-act-when-there-is-no-adequate-remedy-at-law and
equity-need-not-act-even-though-there-is-no-adequate-remedy-at-law.
Peaceful-picketing-is-legal and all-picketing-is-illegal.
Contributory-negligence-on-the-part-of-the-plaintiff-absolves-the-defendant-of-responsibility
and
contributory-negligence-on-the-part-of-the-plaintiff-does-not-absolve-the-defendant-of-all-responsibility.
And time and time again a court will grab one of the two contradictory
principles and, with some slight elaboration, use it as the basis of decision.
For it is the legend of
The Law that every legal dispute can, and must, be settled by hauling an
abstract principle down to earth and pinning it to the dispute in question. The
last thing any court will ever admit, even when it is being quite practical about
what it decides, is that practical considerations have anything to do with the
decision. To admit this would be to admit that it was not The Law – that pile
of polysyllabic abstractions – that dictated the answer.
Then too, as judges are
doubtless smart enough to realize, a man – or a lady – would scarcely need to
be learned in The Law in order to sit and hand down practical answers to what
are, in the last analysis, no more than practical problems.
CHAPTER VII
FAIRY TALES AND FACTS
“’What do you know about this business?’ the King said to Alice.
‘Nothing,’ said Alice.
‘Nothing whatever?’ persisted the King.
‘Nothing whatever,’ said Alice.
‘That’s very important,’ the King said, turning to the jury.” — Lewis
Carroll
No single fact is so
essential to the life and lustiness of the legal racket as the sober pretense
on the part of practically all its practitioners – from Supreme Court judges
down to police court lawyers – that The Law is, in the main, an exact science.
No pretense was ever more absurd. The basic assumption behind the settlement of
every legal dispute, whether it be settled by a judge’s sacred words or out of
court, is that, according to The Law, there is only one right answer, one
preordained answer, to the problem. Lawyers and judges, so the fairy tale goes,
are merely trained mechanics in the manipulation of that tremendous and complicated
adding-subtracting-multiplying-dividing-and-square-root-computing machine known
as The Law. They take a problem, any problem, translate it into the appropriate
legal symbols, push the buttons on the big machine that correspond to those
symbols, and the right answer automatically pops out at the bottom.
Certainly it is only
because of their passionate belief in the machine-like and inexorable quality
of The Law that non-lawyers continue to submit their civilization to legal
decree. Certainly too, the law boys themselves are anxiously aware that they
must keep up the pretense if they would keep their prestige and their power.
Even the Supreme Court, from time to time in its opinions, feels it imperative
to state that it is The Law, that infallible automatic machine, and not the
Court, those nine fallible men, that really dictates decisions. For the lawyers
know it would be woe unto the lawyers if the non-lawyers ever got wise to the
fact that their lives were run, not by The Law, not by any rigid and impersonal
and automatically-applied code of rules, but instead by a comparatively small
group of men, smart, smooth, and smug – the lawyers.
Yet it should not, at
this point, be necessary to pile up any more examples of how The Law works, nor
to examine in detail any more of The Law’s mealy-mouthed concepts and
principles and elaborate logic, in order to show that Law is a very inexact and
teeter-totter “science”; that none of The Law’s answers to problems is
preordained, precise, or inevitable; and that it is indeed the lawyers, with
their dreary double-talk, and not The Law, that mass of ambiguous abstractions,
that run the show. Even if The Law still be considered a big machine that gives
automatic answers to legally-worded questions, it is the lawyers and the
lawyer-judges who phrase the questions and decide which buttons to push. And
anyone who has ever worked a cigarette slot-machine knows that if you want
Chesterfields, you push the Chesterfield button. The machine does the rest.
Thus the Supreme Court
knows that if it pushes the “deprivation of property without due process of law”
button, the answer will come out – unconstitutional. If it pushes the “state
police power” button, the answer will come out – constitutional. But the
machine of The Law does not tell the Court which button to push.
Again, any judge,
engaged in deciding a dispute over an alleged business agreement, knows that if
he pushes the buttons marked “offer,” “acceptance,” “consideration,” and a
couple of others, the answer will come out – valid contract. But if he pushes
the “no offer” button, the answer will be – no contract. It is just as simple
as that.
The point is, of course,
that in every case the real decision is made, The Law of the case is laid down,
not after the machine gets to work but before. The crux of the whole matter
lies in the choice of which button or buttons to push, which principle or
principles or concepts to follow. In Senior v. Braden, the Supreme Court
decided to push the buttons marked “property tax” and “interest in land.” Whereupon
the machine whirred smoothly through “no jurisdiction to tax” and “deprivation
of property without due process of law,” right up to the answer – unconstitutional.
But if the Court had instead laid its venerable finger on the “income tax” button,
or had skipped the “interest in land” button, the machine of The Law would have
whirred just as smoothly to the exactly opposite conclusion.
And there are always at
least two buttons, two principles, between which a choice must be made. Often
there are several such choices. In no law case, in no legal dispute, is such a
choice not presented.
Take one of the coldest,
cut-and-dried cases imaginable. A sane man deliberately kills another man in
the sight of several reliable witnesses. All the relevant written statutes and
all the principles of Law which encrust those statutes seem to point toward one
answer – first degree murder. Yet, as everyone knows, some lawyer will take the
killer’s case, will dig up accepted and respectable principles of Law which, if
followed, would declare the killer innocent of crime, and may – for it has
often happened – convince the court that the right legal answer is – not
guilty. No wonder, then, that in less spectacular and less apparently
open-and-shut legal controversies, a principle or series of principles can
always be found to lend the benediction of The Law to either side of any case.
No wonder there is no such thing as a legal problem which does not have, in the
eyes of The Law, two sides to it – up to the point when some judge applied just
one set of principles to the problem,
and thereby settles it “according to The Law.”
What are, then, all
these abstract principles of which The Law is built, these rules so diverse and
complicated and contradictory that some combination of them can be used as push
buttons to obtain any result under the sun? What are these great and guiding
truths that can override written statutes and even constitutions? What are
these indispensable counters of all legal thinking and legal action? Where do
they come from – once the stork-brought-them theory that they sit in some
jurisprudential sky, waiting to be brought to earth, has been dispensed with?
The simple truth is that
each of them originated as the out-loud cogitation of some judge, slightly
worried as to which old set of
principles –- or cogitation’s of other judges – to apply to the case before
him, and still wanting to make his decision sound as inevitable, as automatic,
as scientific and logical as possible. Every legal principle begins its
existence as a rationalization, a justification, an honesty-this-is-why of some
legal decision. And the more it is subsequently used to justify other
decisions, the more respectable it grows. Legal principles, like meer-schaum
pipes, improve with use and age.
There is a principle
that equitable relief – a special kind of legal remedy – will not be granted to
anyone who comes into court with “unclean hands.” It originated, centuries
back, in the desire of some judge to bolster with a high-sounding excuse his
decision for the defendant in a case in which the plaintiff seemed, at first,
to have the best of The Law on his side. The excuse came in handy in other
cases. Today it is a primary principle of “equity law.”
So with the principle
that the states may regulate businesses “affected with a public interest.” A
Supreme Court judge, in upholding such a regulation, once helped give his
opinion an authoritative sound by stating that the business in question was
affected with a public interest and consequently was properly subject to
regulation. The words stuck. The rationalization became an accepted principle.
Moreover, by reversing the rationalization, other judges made an even more
useful and more used legal rule out of the idea that businesses not affected with a public interest are
generally not subject to state
regulation.
So, too, with the
principle that consideration is essential to a valid contract. So with the
principle that Congress may not regulate industrial activities which affect
interstate commerce only indirectly. So with all the thousands upon hundreds of
thousand of principles of The law. Each got its legal baptism as part of the
random rationalizings of some judge, trying to make a specific decision sound
more learned and logical to his fellow lawyers and to himself.
And of course, once a
principle has been accepted – or, as the lawyers would have it, “discovered” – as
part of The Law, its use is no longer restricted to the kind of problem it was
originally dressed up to deal with. It might be supposed that, even if the
messianic mutterings of a judge in a specific case can become proud principles
of The Law, quoted and followed in other cases, at least the legitimate use of
those principles would in the future be limited to the kind of case the judge
was muttering about. Not al all. A legal principle, once let loose, is never
restricted to its own back-yard, but is allowed and often encouraged to roam
over the whole field of Law.
Thus, a principle born
of a judge’s patter in settling a financial dispute between two business men
can, like as not, become a bulwark of constitutional interpretation. A
principle first mouthed to bolster up a decision in a suit for slander may
later turn up as the key to The Law in a murder case. In Senior v. Braden, for
instance, a case centering around state taxes and the U.S. Constitution, the “controlling”
principle was borrowed from a case which had nothing to do with state taxes nor
with the U.S. Constitution but involved instead a little problem of property
law and of proper legal procedure under a federal statute.
Not only are legal
principles – and concepts – so vague and so abstract that they make as much
sense, or nonsense, when applied to any of a dozen vitally different kinds of
legal dispute; they are also so treacherous of meaning that the same principle
can often be used on both sides of the same dispute. There is a famous legal
principle which disparages “interference” with a famous legal concept called “freedom
of contract.” Both the principle and the concept are genuine and typical
examples of The Law, in that neither comes out of any constitution or statute.
They come straight out of the judges’ heads, and mouths. Yet in a labor dispute
arising out of a strike, the workmen’s lawyer may well plead in a court that
any interference with the strike will, by weakening the workmen’s bargaining
power, amount to an interference with their “freedom of contract,” while the
boss’s lawyer is arguing that the strike should be stopped or crippled by legal
decree because it interferes with the
boss’s “freedom of contract.” Like most legal concepts, “freedom of contract” can
mean very different things to different people, or even to different judges.
Like most legal principles, the principle built on that concept means exactly
nothing – as a guide to the settlement of a specific controversy.
The sober truth is that
the myriad principles of which The Law is fashioned resemble nothing so much as
old saws, dressed up in legal language and paraded as gospel. When Justice
Marshall intoned “The power to tax involves the power to destroy,” and on the
basis of that principle declared that a certain state tax was illegal, he might
just as well have said “Great oaks from little acorns grow” and founded his
decision on that – except that he would not have sounded quite so impressive. “The
burnt child dreads the fire” could substitute for many a principle of criminal
law. And “Waste not, want not,” or perhaps “A penny saved is a penny earned,” would
be as useful and as pertinent to the solution of a business squabble as the
principle that consideration is necessary to validate a contract.
All that The Law is, all
that it amounts to, all that it is made of, all that lawyers know and non-lawyers
don’t know, is a lot – a miscellaneous and tremendous lot – of abstract
principles. And every one of those principles is, in essence, no more than a
generalized gem of alleged wisdom that some judge has spoken in order to
rationalize a decision of his and that other judges have later picked up and
repeated.
Moreover, even if those
gems of alleged wisdom were – as usually they are not – relevant and reasonable
justification for deciding a legal problem one way or the other, there would
still be the same old catch in the whole procedure. For the gems, as well as
being so generalized, are so many, so motley, and so confusing. And the catch
comes in matching the right gem or gems, the right principle or principles, to
any given set of specific facts.
That is the crucial
step, the key move, in the settlement of any legal dispute. That is the move
that the prestidigitators of The law always make behind their backs – no matter
how vigorously and triumphantly they may later flaunt the principles they have
picked. That is why The law not only is
not an exact science, but cannot be
an exact science – so long as it is based on abstract principles and deals with
specific problems. Just as the devil can always cite Scripture to his purpose,
so can any lawyer on either side of any case always cite The law to his.
As would of course be
expected, any lawyer will arise to the defense of his trade and hotly dispute
all this disparagement of The Law’s vaunted dignity, majesty, and preciseness.
He will tell you that most legal principles, though abstractly phrased, have
acquired, through long usage, a specific content of meaning and application – in
lawyers’ and judges’ minds at least. He will tell you that The Law must have
two qualities, continuity and certainty; (he will not put it that The Law must seem to have continuity and certainty – in
order to survive.) He will tell you that, in order to achieve continuity and
certainty, The Law must be based on general or abstract principles which can be
carried over from one year to the next and from one decision to the next. And
he will tell you, if you press him about the way in which abstract principles
can be carried over continuously and certainly, that problems and fact
situations, by reason of their similarity or dissimilarity, fall naturally into
groups; one group will be governed by one legal principle, another group by
another or possibly a contradictory principle. In short, each new case or
problem that comes up is enough like some batch of cases and problems that have
come up before to be controlled by the same principle that was used to control
them. There is your certainty. There is your dignity, majesty, and preciseness.
In the abstract – and
coming from a lawyer it is of course abstract – it makes a pretty theory. There
are a few little practical matters, though, that it does not explain. It does
not explain why – if there is a quality of certainty about The Law dependent in
part on the fact that legal principles acquire a specific content, in lawyers’ and
judges’ minds – so many hundreds of thousands of law cases seem to keep coming
to court, with full-fledged lawyers arguing on opposite sides. Nor – if it be
said that some lawyers just don’t know The Law as well as they should – does
the theory explain why lower courts are constantly being reversed by appellate
courts. Nor why there are so many dissenting opinions. Nor how it happened that
fifty-seven of the nation’s top-ranking lawyers were unanimously wrong in
advising their clients about the Wagner Labor Act.
The theory does not
explain, either, why a promise by a stranger to give money to the same church
is more like a cigarette than it is like a promise by a stranger to give a
present to the same girl; for the first two, remember, are valid considerations
for a contract, while the third isn’t. Nor does the theory explain why the tax
problem of Senior v. Braden fell naturally into the same batch of cases that
included the Brown v. Fletcher problem in legal procedure, and so was
controlled by the same general principle. Still, it makes a pretty theory – in
the abstract.
The joker in the theory
is the assumption that any two, much less twenty, fact situations or legal
problems can ever be sufficiently alike to fall naturally – that is, without
being pushed – into the same category. The very existence of two situations or
problems means that there are differences between them. And here, perhaps, the
lawyer defending his craft may pop up again to say that the differences can be
major or minor, important or unimportant. It is when the “essential” facts are
the same, he will tell you, that the same general principles apply.
But which facts in any
situation or problem are “essential” and what makes them “essential”? If the “essential”
facts are said to depend on the principles involved, then the whole business,
all too obviously, goes right around in a circle. In the light of one principle
or set of principles, one bunch of facts will be the “essential” ones; in the
light of another principle or set of principles, a different bunch of facts
will be “essential.” In order to settle on the right facts you first have to
pick your principles, although the whole point of finding the facts was to
indicate which principles apply.
Yet if the “essential” facts
do not hinge on the principles
involved, then somebody must pick the “essential” facts of any situation from
the unessential ones. Who? Well, who but the lawyers and the judges? And the
picking of the “essential” facts, which are going to determine the “similar” group
of old cases, which group in turn is going to determine the appropriate legal
principles, then becomes as arbitrary and wide-open a choice as if the lawyers
or judges had just picked the appropriate principles to begin with.
Suppose, to take a
simple example, a man driving a 1939 Cadillac along the Lincoln Highway toward
Chicago runs into a Model T Ford, driven by a farmer who has just turned onto
the Highway from a dirt road, and demolishes the Ford but does not hurt the farmer.
The farmer sues, and a local judge, on the basis of various principles of Law
which are said to “control” the case, awards him $100. A week later, another
man driving a 1939 Cadillac along the Lincoln Highway toward Chicago runs into
a Model T Ford driven by another farmer who has just turned onto the Highway
from the same dirt road, and demolishes the Ford but does not hurt the farmer.
This farmer also sues. The facts, as stated, seem to make this case quite
similar to the previous case. Will it then fall into the same group of fact
situations? Will it be “controlled” by the same principles of Law? Will the
second farmer get $100?
That all depends. For of
course there will be other facts in both cases. Some may still be similar.
Others, inevitably, will be different. And the possibilities of variation are
literally endless.
Maybe the first Cadillac
was doing sixty miles an hour and the second one thirty. Or maybe one was doing
forty-five and the other one forty. Or maybe both were doing forty-five but it
was raining one week and clear the next. Maybe one farmer blew his horn and the
other didn’t. Maybe one farmer stopped at the crossing and the other didn’t.
Maybe one farmer had a driver’s license and the other didn’t. Maybe one farmer
was young and the other was old and wore glasses. Maybe they both wore glasses
but one was nearsighted and the other farsighted.
Maybe one Cadillac
carried an out-of-state license plate and the other a local license plate.
Maybe one of the Cadillac drivers was a bond salesman and the other a doctor.
Maybe one was insured and the other wasn’t. Maybe one had a girl in the seat
beside him and other didn’t. Maybe they both had girls beside them but one was
talking to his girl and the other wasn’t.
Maybe one Cadillac hit
its Ford in the rear left wheel and the other in the front left wheel. Maybe a
boy on a bicycle was riding along the Highway at one time but not the other.
Maybe a tree at the intersection had come into leaf since the first accident.
Maybe a go-slow sign had blown over.
The point is, first,
that no two fact situations anywhere any time are entirely similar. Yet a court
can always call any one of the inevitable differences between two fact
situations, no matter how small, a difference in the “essential” facts. Thus,
in the second automobile accident, any one of the suggested variations from the
facts of the previous accident might – or might not – be labelled “essential.” And
a variation in the “essential” facts means that the case will be dumped into a
different group of cases and decided according to a different legal principle,
or principles.
When the second accident
case came to court, the judge might call entirely irrelevant the fact that a
caution sign along the highway had blown down since the week before. Or he
might pounce on that fact to help him lay the legal blame for the smashup, not
on the Cadillac driver this time, but instead on the farmer, or on both of them
equally, or on the state highway department, – according, of course, to accept
principles of Law. Moreover, the mere fact that one driver was doing forty-five
miles and the other forty might easily be enough to induce the judge to
distinguish the second accident from the first accident and group it instead
with a bunch of cases involving railroad trains that had run over stray horses
and cows. The “essential” facts being similar, the judge would put it, the same
principles of Law are “controlling.”
As with the two
automobile accident, so with any two legal disputes that ever have come up or
could come up – except that most legal disputes are far more complicated,
involve many more facts and types of facts, consequently present the judges
with a far wider selection from which to choose the “essential” facts, and
so open up a much greater range of legal principles which may be applied or not
applied. And since no two cases ever
fall “naturally” into the same category so that they can be automatically
subjected to the same rules of Law, the notion that twenty or thirty or a
hundred cases can gather themselves, unshoved, under the wing of one “controlling”
principle is nothing short of absurd.
Yet the embattled lawyer
may have one final blow to strike in defense of The Law and its principles and
its supposed certainty. The Law, he will tell you, is concerned with a great
deal more than the problems that actually get into court and are settled by
judges. The Law is chiefly concerned with maintaining a constant code of rules
and behavior under which men can live and handle their affairs and do business
together in a civilized manner. Only the freak situations, the rare situations,
ever develop into law cases, he will tell you. For the most part, men’s affairs
run smoothly and certainly along, without litigation or legal squabbles, under
the trained and watchful (and paid) guidance of the lawyers and their Law.
For instance, he will go
on, of all the many business contracts and legal agreements of every sort that
are drawn up and signed every day, only a very small fraction are eventually
carried into court. Bond issues, sales contracts, insurance policies, leases,
wills, papers of every kind, all these are in constant use yet comparatively
rarely do they become the center of a legal dispute. (And notice, incidentally,
how claims concerning the certainty of unlitigated Law always seem to stress
its use in business dealings and commercial affairs.) Why do so few legal
documents end up in court cases? Simply, the lawyer will tell you, because they
are drawn up and phrased by lawyers in accordance with The Law and in the light
of recognized legal principles. That is what makes them safe and sure and
workable and what keeps the people with whose affairs they deal from constantly
going to court about them. And that
is where the certainty of The Law really comes in and really counts.
Well, don’t you believe
a word of it. In the first place, those legal papers of all kinds and
descriptions are phrased the way they are, not in order to keep the people
whose affairs they deal with out of
court, but in order to give somebody a better chance of winning if the affair
gets into court. If the document is
an installment-plan contract or a lease or an insurance policy or a mortgage,
you can guess who that “somebody” is. If it is the result of a really two-sided
business dicker, with lawyers working for both sides, then some of the clauses
of the contract will be for the benefit of one side and some for the other – in
case they go to court over it. At any rate, every legal agreement is drawn up in contemplation of a court fight. It is
therefore phrased with an eye to the same old ambiguous, abstract principles
that the judges use for Law. And no matter how hard the lawyers may try to make
their legal language favor one side or the other, they can no more wring
certainty out of abstractions than they could wring blood out of a cauliflower.
But there is a far more
important reason why the lawyer is dead wrong when he claims that legal advice
and guidance keep most business arrangements and affairs out of court. People
do not go to court over their mutual dealings simply because their contracts
are un-legally or uncertainly worded, and they do not keep out of court simply
because the relevant documents are drawn up in the approved style. A man who is
convinced that he is getting the raw deal, or that the other side is not living
up to its bargain, or who is just dissatisfied with the way the whole
arrangement is working out, will just as likely take his troubles to court
though the papers involved had been prepared by a special committee of the
American Bar Association. And he will find a lawyer to take his case, too – and
support it with accepted principles of Law.
Most business
transactions, however, run off smoothly of their own accord. Both sides more or
less live up to their promises and neither side feels aggrieved or cheated.
This is just as true, moreover, even though the relevant documents be written
in execrable legal taste. And, very briefly, it is this fact, not the fact that
lawyers are always hovering around advising and charging fees, that is
responsible for the small percentage of business affairs that find their way
into a courtroom.
As a matter of fact, the
lawyers, with their advice and their principles and their strange language, no
doubt increase, instead of decreasing, the number of transactions that end up
in dispute and litigation. If they would let men carry on their affairs and
make their agreements in simple, specific terms and in words intelligible to
those involved, there would be fewer misunderstandings and fewer real or
imagined causes for grievance. Moreover, to jump to another legal field, if
written laws, statutes, were worded in plain English instead of being phrased
by lawyers for lawyers, there would unquestionably be fewer cases involving the
“interpretation” of those statutes and the question whether they do or do not
apply to various specific fact situations.
No, the asserted
certainty of The Law is just as much of a hoax out of court as in court. And
how could it not be – inasmuch as the whole of The Law, whether it be glorified
in the opinion of a Supreme Court justice or darkly reflected in the
conversation of two attorneys about to draw up a deed of sale, is built of
abstract principles, abstract principles and nothing more?
There is an old tale
that is told of three men who were walking through a wood when they came upon a
tremendous diamond lying on the ground. All of them had seen it at he same
instant and yet, clearly, it could not be divided between them. They were peaceful
men and so, rather than fight over its possession, they determined to present
their claims in a logical fashion.
“You will recall,” said
the first man, “that as we approached the spot where the diamond lay we were
walking, not in single-file, but abreast. The two of you were on my left and
that fact is of the utmost importance. For as neither of you, I am sure, would
care to deny, the right must always prevail. Therefore, the diamond is clearly
mine.”
“Indeed,” said the
second man, “I should not care to deny that the right must always prevail. But
you have omitted, in your brief summary of the situation, one highly
significant point. It is the diamond, after all, which is the crux, the center,
the whole sum and substance of our problem. And from the standpoint of the
diamond it was I who was on the
right, and who must, therefore, prevail.”
“You are both very
clever,” said the third man, “but your cleverness, I fear, has undone you.
Observe that the first one of you, who walked on one side of me, and then the
other, who walked on the other side, has claimed he was on the right. I too
will grant that the right must always prevail. Yet it is, I believe, an
accepted truth that in any contest between two extremes, the middle ground is
likely to be, in fact, the right one.”
It is not told which one
of the men got the diamond and it does not much matter.
They must have been
lawyers.
CHAPTER VIII
MORE ABOUT LEGAL LANGUAGE
“They have no lawyers among them, for they
consider them as a sort of people whose
profession it is to disguise matters.” — Sir Thomas More
The Chief Justice of the
Supreme Court of the United States, several years ago, was elucidating in the
course of the Court’s opinion a little point of Law. “Coming to consider the
validity of the tax from this point of view,” he wrote, “while not questioning
at all that in common understanding it was direct merely on income and only
indirect on property, it was held that, considering the substance of things it
was direct on property in a constitutional sense since to burden an income by a
tax was, from the point of substance, to burden the property from which the
income was derived and thus accomplish the very thing which the provision as to
apportionment of direct taxes was adopted to prevent. . . .
Moreover in addition the
conclusion reached in the Pollock case did not in any degree involve holding
that income taxes generically and necessarily came within the class of direct
taxes on property, but on the contrary, recognized the fact that taxation on
income was in its nature an excise entitled to be enforced as such unless and
until it was concluded that to enforce it would amount to accomplishing the
result which the requirement as to apportionment of direct taxation was adopted
to prevent, in which case the duty would arise to disregard form and consider
substance alone and hence subject the tax to the regulation as to apportionment
which otherwise as an excise would not apply to it . . . . From this in
substance it indisputably arises, . . . that the contention that the Amendment
treats the tax on income as a direct tax although it is relieved from
apportionment and is necessarily therefore not subject to the rule of
uniformity as such rule only applies to taxes which are not direct, thus
destroying the two great classifications which have been recognized and
enforced from the beginning, is wholly without foundation since the command of
the Amendment that all income taxes shall not be subject to apportionment by a
consideration of the sources from which the taxed income may be derived,
forbids the application to such taxes of the rule applied in the Pollock case
by which alone such taxes were removed from the great class of excises, duties,
and imposts subject to the rule of uniformity, and were placed under the other
or direct class.”
This could go on for
hours. As a matter of fact is did. And incidentally, the legal point which the
learned justice was making so crystal clear had not the slightest bearing on
the decision in the case.
But it would be far too
easy to pile up example after example of the nonsense that is legal language.
The quoted tidbit is, of course, an exaggerated instance. But it is exaggerated
only in degree and not in kind. Almost all legal sentences, whether they appear
in judges’ opinions, written statutes, or ordinary bills of sale, have a way of
reading as though they had been translated from the German by someone with a
rather meager knowledge of English. Invariably they are long. Invariably they
are awkward. Invariably and inevitably they make plentiful use of the abstract,
fuzzy, clumsy words which are so essential to the solemn hocus-pocus of The
Law.
Now it is generally
conceded that the purpose of language, whether written, spoken, or gestured, is
to convey ideas from one person to another. The best kind of language, the best
use of language, is that which conveys ideas most clearly and most completely,
Gertrude Stein and James Joyce notwithstanding. But the language of The Law
seems almost deliberately designed to confuse and muddle the ideas it purports
to convey. That quality of legal language can itself be useful on only one
supposition. It can be useful only if the ideas themselves are so confused and
muddled and empty that an attempt to express those ideas in clear, precise
language would betray their true nature. In that case muddiness of expression
can serve very nicely to conceal muddiness of thought. And no segment of the
English language in use today is so muddy, so confusing, so hard to pin down to
its supposed meaning, as the language of The Law. It ranges only from the
ambiguous to the completely incomprehensible.
To the non-lawyer, legal
language is, as mentioned before, to all intents and purposes a foreign tongue.
It uses words and phrases which are totally unfamiliar to him. Or it uses words
and phrases which he can find in his vocabulary but uses them in such a way
that he is immediately aware that they must mean, in The Law, something quite
different from what they mean to him. Or, on the rare occasions when a whole
legal sentence seems to be made up of familiar words taken in their accustomed
meaning, the sentence itself is likely to be so constructed that it doesn’t
make common sense. Oh well, the non-lawyer will say with a shrug, I suppose it
means something to a lawyer.
That is why people
rarely bother to read insurance policies or mortgages or acts of Congress. They
know perfectly well that they will never be able to grasp most of the ideas
that are allegedly being conveyed. Even if a legally-phrased document of one kind
or another is of the upmost personal importance to the man who signs it or
hears of it, he will seldom make the painful effort of trying to get clear in
his head what the funny language in which it is written is supposed to mean. He
will just trust his lawyer – or somebody else’s lawyer – that it does mean
something, that it means something definite, and that there is a good reason
for saying it in a way that prevents him from understanding it. Sometimes,
moreover, he will later have cause to regret that blind trust.
Yet why – if you think
it over for a minute – should people not be privileged to understand completely
and precisely any written laws that directly concern them, any business
documents they have to sign, any code of rules and restrictions which applies
to them and under which they perpetually live? Why should not the ideas,
vitally important to someone as they always are, which are said to lie behind
any glob of legal language, be common property, freely available to anyone
interested, instead of being the private and secret possession of the legal
fraternity?
As pointed out
previously, The Law, regardless of any intellectual pretensions about it, does
not at bottom deal with some esoteric or highly specialized field of activity
like the artistic valuation of symphonic music or higher calculus or
biochemical experimentation. If it did, there would be reason and excuse for
the use of language unfamiliar and unintelligible to ninety-nine people out of
a hundred. Nor would the ninety-nine have any cause to care. But the fact is that
Law deals with the ordinary affairs of ordinary human beings carrying on their
ordinary daily lives. Why then should The Law use a language – language being,
remember, no more than a means of communicating ideas – which those ordinary
human beings cannot hope to understand?
Certainly a man who
enters a business deal of any kind, whether he is buying a radio on the
installment plan or setting up a trust fund to take care of his family, would
seem entitled to know, to his own complete intellectual satisfaction, just what
he is getting out of it and just what he may be getting in for. The legal
document he signs won’t tell him. Certainly a man whose democratically elected
government enacts a law which will regulate him or tax him or do him a favor
would seem entitled to know, if he wants to know, exactly how the new statute
is going to affect him. His lawyer may “advise” him – and may be right or wrong
– but reading the statute won’t tell him. Certainly a man who loses a law suit
would seem entitled to know why he lost it. The court’s opinion won’t tell him.
Why? Why doesn’t and why shouldn’t legal language carry its message of meaning
as clearly and fully as does a cook book or an almanac or a column of
classified advertisements to anyone who wants to know what ideas the words are
intended to convey?
The answer is, of
course, that the chief function which legal language performs is not to convey
ideas clearly but rather to so conceal the confusion and vagueness and
emptiness of legal thinking that the difficulties which beset any non-lawyer
who tries to make sense out of The Law seem to stem from the language itself
instead of from the ideas – or lack of ideas – behind it. It is the big
unfamiliar words and the long looping sentences that turn the trick. Spoken or
written with a straight face, as they always are, they give an appearance of
deep and serious thought regardless of the fact that they may be, in essence,
utterly meaningless.
Moreover, as has been
mentioned previously, the lawyers themselves, almost without exception, are
just as thoroughly taken in by the ponderous pomposity of legal language as are
the laymen. They actually believe and will stoutly maintain that those great
big wonderful ideas – to the initiated. If you can’t talk Greek, they say, in
effect, to the non-lawyers, then you really can’t expect to understand us when
we talk Greek. But don’t for a second suppose that we don’t understand each
other, perfectly and precisely.
The catch is, of course,
that the lawyers are not talking Greek – or Russian or Sanskrit either. They
are talking, in a fashion, English. Moreover they are talking about matters – business
matters, government matters, personal matters – which any non-lawyer is quite
capable of comprehending. Furthermore, if they were talking Greek, they could presumably translate it accurately
and intelligibly into a familiar tongue without spoiling or losing any of the
sense. But they can’t – or won’t – translate the jargon of The Law into plain
workaday English. The communication of legal ideas, it appears, cannot be
trusted to any conveyance but the lawyers’ private patois. Which is,
unfortunately, all too true.
For The Law, as you may
have heard before, is entirely made up of abstract general principles. None of
those principles has any real or necessary relation to the solid substance of
human affairs. All of them are so ambiguous and many of them are so contradictory
that it is literally impossible to find a definite and sure solution
(regardless of whether it might be a good solution or a bad solution) to the
simplest, smallest practical problem anywhere in the mass of principles that
compose The Law. And the sole reason why that fact is not generally appreciated
by either lawyers or non-lawyers is that the principles are phrased in a
language which is not only bafflingly incomprehensible in its own right but
which is composed of words that have no real or necessary relation to the solid
substance of human affairs either.
Thus the whole
abracadabra of The Law swings around a sort of circular paradox. Legal language
– in statutes, documents, court opinions – makes use of strange unfamiliar
words because those words tie up to the abstract principles of which The Law is
composed. Except in reference to those principles the words, as used, mean even
less than nothing. But the principles themselves are utterly unintelligible
except in terms of the legal words in which they
are phrased. Neither words nor principles have any direct relation to tangible,
earthly things. Like Alphonse and Gaston, they can do no more than keep bowing
back and forth to each other.
No wonder, then, that
the lawyers can never translate their lingo into plain English so that it makes
any sense at all. Asked what any legal word means, they would have to define it
in the light of the principle, or principles, of Law to which it refers. Asked
what the principle means, they could scarcely explain it except in terms of the
legal words in which it is expressed. For instance, the legal word “title” doesn’t
signify anything except insofar as it refers, among others, to the abstract
principles that are said to determine to whom “title” belongs. Whereas the
legal principle that “title belongs to the mortgagor,” or the legal principle
that “title belongs to the mortgagee” – for either may be “true” – doesn’t
signify anything either unless you know what “title” means.
Of course there is one way, and only one way, to explain
something of what a legal principle is supposed to mean in plain English. That
is to describe the specific lawsuits in which courts have made specific
decisions and have said they were making them on the basis of that principle.
But the necessity of such a procedure immediately gives away the fact that the
principles are intrinsically meaningless. For how on earth can a principle be
the reason for a decision if it can
only be defined by listing the decisions it was the reason for?
No matter which way you
slice it, the result remains the same. Legal language, wherever it happens to
be used, is a hodgepodge of outlandish words and phrases because those words
and phrases are what the principles of The Law are made of. The principles of
The Law are made of those outlandish words and phrases because they are not
really reasons for decisions but obscure and thoroughly unconvincing
rationalizations of decisions – and if they were written in ordinary English,
everybody could see how silly, how irrelevant and inconclusive, they are. If
everybody could see how silly legal principles are, The Law would lose its
dignity and then its power – and so would the lawyers. So legal language, by
obstructing instead of assisting the communication of ideas, is very useful – to
the lawyers. It enables them to keep on saying nothing with an air of great
importance – and getting away with it.
Yet the lawyers, taken
as a whole, cannot by any means be accused of deliberately hoodwinking the public with their devious dialectic
and their precious principles and their longiloquent language. They, too, are
blissfully unaware that the sounds they make are essentially empty of meaning.
And this is not so strange. For self-deception, especially if it is
self-serving, is one of the easiest of arts.
Consider the fact that
the lawyers – and that includes the judges – have been rigorously trained for
years in the hocus-pocus of legal language and legal principles. They have been
taught the difficult technique of tossing those abstract words around. They
have had drilled into their heads, by constant catechism, the omniscience and
omnipotence of The Law. They have seen and read that important people like
Supreme Court justices and Wall Street law partners treat The Law as seriously
and deferentially as they treat the Scriptures. They discover, too, that all
non-lawyers seem terribly impressed by this language which sounds so unfamiliar
and so important. So why ask questions? Why doubt that the world is flat when
everyone else takes it as a matter of course? And especially, why doubt it if
it is to your own personal advantage to accept and believe it? Why not,
instead, try to become a Supreme Court justice or a Wall Street law partner
yourself?
Every once in a while,
however, a lawyer comes along who has the stubborn skepticism necessary to see
through the whole solemn sleight-of-mind that is The Law and who has the
temerity to say so. The greatest of these was the late Justice Holmes, especially
where Constitutional Law was concerned. Time and time again he would demolish a
fifty-page Court opinion – written in sonorous legal sentences that piled
abstract principle upon abstract principle – with a few words of dissent,
spoken in plain English. “The Law as you lay it down,” he would say in effect, “sounds
impressive and impeccable. But of course it really has nothing to do with the
facts of the case.” And the lawyers, though they had come to regard Holmes as
the grand old man of their profession and though they respected the Legal
writing he had done in his youth, were always bothered and bewildered when he
dismissed a finespun skein of legal logic with a snap of his fingers.
Strange as it may seem,
it is his similar unwillingness to swallow the sacredness of The Law that has
turned the lawyers, in a body, viciously against Justice Black today. They do
not hate him because he is a New Dealer; so is Justice Reed whom they respect.
They do not hate him because he was a Ku Kluxer; Justice McReynolds’ notorious
and continuing racial intolerance has brought no squawks from the legal clan.
The lawyers hate Black because he, too, without the age or the legal reputation
of a Holmes to serve him as armor, has dared to doubt in print that there is
universal truth behind accepted legal principles or solid substance behind
legal language. “Why,” they say of him, “that Black doesn’t even know The Law.”
Which only means that he knows The Law too well – for what it really is.
What the lawyers care
about in a judge or a fellow lawyer is that he play the legal game with the
rest of them – that he talk their talk and respect their rules and not go
around sticking pins in their pretty principles. He can be a New Dealer or a Ku
Kluxer or a Single Taxer or an advocate of free love, just so long as he stays
within the familiar framework of legal phraseology in expressing his ideas and
prejudices wherever they happen to impinge on The Law. A lawyer who argues that
sit-down strikes are perfectly legal, basing his argument entirely on legal
principles and phrasing it in legal language (and it can, of course, be done)
will be accorded far more respect by his brethren than a lawyer who argues that
men ought to be made to keep their business promises but neglects to drag in
the Law of Contracts to prove it.
The kind of lawyer who
is never lost for legal language, who would never think of countering a legal
principle with a practical argument but only with another legal principle, who
would never dream of questioning any of the process of The Law – that kind of
lawyer is the pride and joy of the profession. He is what almost every lawyer
tries hardest to be. He is known as the “lawyers’ lawyer.”
Except in a purely
professional capacity, in which capacity they can be both useful and expensive,
you will do well to keep away from lawyers’ lawyers. They are walking, talking
exhibits of the lawyers’ belief in their own nonsense. They are the epitome of
the intellectual inbreeding that infests the whole legal fraternity.
And since lawyers’ lawyers
are the idols of their fellows, it is small wonder that lawyers take their Law
and their legal talk in dead earnest. It is small wonder that they think a “vested
interest subject to be divested” or a frankly “incorporeal hereditament” is as
real and definite and substantial as a brick outhouse. For the sad fact is that
almost every lawyer, in his heart and in his own small way, is a lawyers’ lawyer.
Thus legal language
works as a double protection of the might fraud of The Law. On the one side it
keeps the non-lawyers from finding out that legal logic is so full of holes
that it is practically one vast void. On the other side, the glib use of legal language
is so universally accepted by the lawyers as the merit badge of their
profession – the hallmark of the lawyers’ lawyer – that they never stop to
question the ideas that are said to lie behind the words, being kept busy
enough and contented enough trying to manipulate the words in imitation of
their heroes. The truth is that legal language makes almost as little common
sense to the lawyers as it does to the laymen. But how can any lawyer afford to
admit that fact, even to himself,
when his position in the community, his prestige among his fellow craftsmen,
and his own sense of self-respect all hang on the assumption that he does know
what he is talking about?
There is one more
argument that lawyer is likely to make in defense of the confusing and
artificial words that make up legal language and, through legal language, legal
principles, and, through legal principles, The Law. Watch out for it. Of
course, he will grant, The Law is built of abstract ideas and concepts and
principles. And abstract ideas have to be expressed in special words. And the
special words, because they deal with abstract ideas, cannot be as precise of
meaning as words that deal with solid things like rocks or restaurants or
kiddy-cars.
But what, he will ask,
is wrong with that? Men are always thinking and talking in abstractions and
using words like “love” or “democracy” or “confusion” or “abstraction” to
convey their ideas. A “contingent interest” means as much to us lawyers as a “friendly
interest” means to you. You can’t define “friendly interest” very clearly or
precisely either. “Due process of law” is just as definite as “dictatorship.” “Constitutional”
or “unconstitutional” isn’t any more ambiguous that “good” or “bad.”
Moreover, he will go on,
the whole ideal and purpose of The Law is to maintain, in human relations and
affairs, a well-known popular abstraction called “justice.” Try to define “justice”
any more accurately than you can define any legal concept you can think of! As
a matter of fact, the chief intent of The Law, as a complicated science, is to
make the idea of “justice” more
precise, to make it more readily and more certainly applicable to any fact
situation, any problem, any dispute that may ever arise. And you can’t split an
abstract ideal into separate parts – you can’t reduce it to principles and
sub-principles – without phrasing them in abstract and therefore somewhat
imprecise terms. Hence, legal language.
The answer to this
defense of The Law and its language is contained right in the defendant’s own
plea. Even leaving aside the obvious fact that The Law time after time produces
results that strike most people as wickedly unfair or “unjust” – in which case
the lawyers invariably say: “Th, th; too bad; but that’s The Law all right” – the
answer is still there. The answer is that you can’t split an abstract ideal
into separate parts – you can’t reduce it to principles and sub-principles.
Period.
The whole business of
trying to split up “justice” into parts, or principles, in order to get a
better, surer grasp of it is absurd as cutting up a worm in order to get a
better hold of it. In the first place, the original animal is quickly
disintegrated in the process. In the second place, each new little piece, each
sub-principle, becomes a squirming abstraction in its own right. Each is now as
hard to grab hold of, as hard to pin down to preciseness, as was the mother
abstraction.
Thus you will rarely
find the lawyers, or the judges either, trying to apply the concept of “justice”
to the settlement of a legal problem. Instead, you will find them fighting over
a dozen equally abstract concepts, all phrased in legal language of course, and
trying to decide which of those should be applied. And, as noted before, the
choice of the “right” concepts or of the “controlling” principles is a highly
haphazard and arbitrary business, no matter how simple the facts of the
problem. For facts don’t fit into “consideration” or “affection with a public
interest” any more automatically or certainly than they fit into “justice.”
Moreover, and this is
even more important, the concentration of The Law on its own pet brood of
concepts and principles has meant the sad disintegration of the old-fashioned
non-legal idea of “justice.” Lawyers are always so absorbed in their little
game of matching legal abstractions that they have all but forgotten the one
abstraction which is the excuse for there being any Law at all. They take “justice”
for granted and stick to their “contracts” and their “torts.” But you can no
more take “justice” for granted than you can cut it up and stuff it into
cubbyholes of legal language.
The lawyer who would
defend the abstract language of The Law is right as rain when he says that
people think and talk of human conduct in abstract ways, in terms of “right” and
“wrong,” “fair” and “unfair.” But he is dead wrong as soon as he asserts that
the strange-sounding abstractions of The Law have any more real or necessary
relation to ideals about human conduct than they have to the facts of human
conduct. Legal words and concepts and principles float in a purgatory of their
own, halfway between the heaven of abstract ideals and the hell of plain facts
and completely out of touch with both of them.
Any that is why, in the
last analysis, the language of The Law is inherently meaningless. It purports
on the one hand to tie up in a general way with specific fact situations. It
purports on the other hand to tie up in a general way to the great abstractions,
“justice.” Yet, in trying to bridge the gap between the facts and the abstraction,
so that “justice” may be “scientifically” and almost automatically applied to
practical problems, The Law has only succeeded in developing a liturgy of
principles too far removed from the facts to have any meaning in relation to
the facts and too far removed from the abstraction to make any sense in terms
of “justice.”
Still, legal language is
a great little language to those who live by it – and on it. And you don’t even
have to use words like trover or assumpsit to have a lot of fun out of it. For
instance, a bill recently before Congress contained this charming provision: —
“Throughout the act the present tense includes the past and future tenses; and
the future, the present. The masculine gender includes the feminine and neuter.
The singular number includes the plural and the plural the singular.”
Only to a lawyer might, “The
men are beating him” mean, among other things, “She is going to beat it.”
CHAPTER IX
INCUBATORS OF THE LAW
“The legal apprentice he sweats and he strains
To memorize every principle;
He’d learn a lot more in the end for his pains
By studying something sinciple.” — Anon.
As every good fascist
knows, the perpetuation of the fascist fraud depends, in the long run, on the
training of fledglings in the faith. The dictators catch their conscripts young
and discipline them to think in goose-step. Promises of reward for the faithful
and ominous warnings about the dangers of nonconformity play their part in
making apprentices firmly believe a mass of lies, half-lies, and nonsense.
Doubt, even the tiniest wondering doubt, is the cardinal sin. There are few
heretics.
The Law cannot catch its
communicants so young. But the same mental goose step and the same kind of
hopes and fears are used, perhaps not so purposefully but just as
efficaciously, to instill a fighting belief in the nonsense of The Law. And of
course it is on the rigid training of apprentices in the art that the
perpetuation of the legal legend depends.
There was a time when
The Law, like other more substantial and more useful trades, was learned in the
shop of a full-blown practitioner. An aspiring lawyer studied his precepts and
his principles while serving a term as office assistant to some member of the
bar. Today the members of the bar must usually pay for their assistance with
something more than a lot of legal language dressed up as words of wisdom. The
trade has acquired academic pretensions, and those citadels of logical
legerdemain known as law schools are not the incubators of The Law.
Consequently, the hope
of The Law – that is, the hope of the lawyers that their game will go on
indefinitely, undiminished and undisputed – lies with the law schools. And
conversely, the one slim hope that the big balloon of inflated nonsense may
ever be exploded by internal combustion lies with the law schools too. Once the
professional gibberish-jugglers have proceeded beyond the training stage, it is
almost always too late. They have to be caught young-in-The-Law to be turned
into disciples – or heretics.
In order to teach
apprentices how to talk the language and how to reason in the proper abstract
circles, the law schools have divided The Law’s mass of principles into big
chunks. Each chunk represents a “field” of Law and is taught in a separate
course, or courses. There are Contracts and Torts and Trusts. There are
Constitutional Law and Criminal Law and Labor Law. There are “fields” and
courses by the score. Of course, an actual case may fall into several “fields” at
the same time. It may involve, for instance, the Constitution, and a crime and
a labor dispute. But that will not faze the law schools. So far as they are
concerned, it is the principles, not the cases, that really matter. And so the
same case will show up in Constitutional Law and in Criminal Law and in Labor
Law. It will not, however, show up in the same way. In Constitutional Law, the
relevant principles of Constitutional Law will be examined. In Criminal Law,
the relevant principles of Criminal Law will be examined. In Labor Law, the
relevant principles of Labor Law will be examined. In each one of the courses,
the aspects of the case that fall into the other two course-categories will be
either glossed over or omitted entirely. A student may thus have to take three
courses in order to understand thoroughly, even from the legal standpoint, what
one decision is all about. But not in order to learn any one “field” of
Law. Thus, law school courses, since they are cut out of the pseudo-science of
Law, inevitably focus on generalities and abstractions rather than on the
solution of specific problems. A student might even study a case in a dozen
different courses – and thus learn all about The Law of the case – and still
not have the slightest comprehension of, or insight into, the real
down-to-earth factual difficulty or controversy that brought the case into
court.
Sometimes a “field” of
Law is too big to be stuffed into one course. For example, Property Law is
commonly divided into Real Property and Personal Property (neither “real” nor “personal,”
of course, means what it means in everyday conversation) and Wills and
Mortgages and Negotiable Instruments and several more. But then, Property Law
is for the most part only a big branch of Contract Law. Moreover, Corporation
Law, a “field” extensive enough to have various subdivisions of its own, is in
essence nothing but a branch of Property Law. It is almost as hard to keep
straight the hierarchy of legal “fields” and courses as it is to sort out the
abstract principles of which the different courses are constructed. And either
process is like trying to cut water with a knife.
One of the biggest and
strangest “fields” of legal learning is something known as Pleading and
Procedure. The law schools divide Pleading and Procedure into many courses, and
some of these courses, like Evidence, are rated as “fields” unto themselves.
But the strange thing about Pleading and Procedure is not its size; Property
Law is at least as big as full of principles. The strange thing is that the
lawyers and the law schools do not even pretend to themselves that the
principles and rules of Pleading and Procedure have anything to do with the
solution of practical problems. Pleading and Procedure is, admittedly, just a lot of verbal complications and technicalities
that lawyers have to memorize – or know where to look up – before they can
practice their trade. And that admission is, of course, unique in The Law. As a
matter of fact, the lawyers and the law schools lump the whole remainder of The
Law together – Contracts and Criminal Law and Trusts and Torts and the rest of
the card catalogue of abstract principles – and call it all “substantive law,” as
opposed to the “adjective” or “procedural law” of the Pleading and Procedure
courses. The term “substantive law” is supposed to imply that the principles of
Contracts and Torts and the rest really cope with the substance of human or
social problems. But even the lawyers can’t make such a claim for Pleading and
Procedure.
Pleading and Procedure
covers all the principles and rules of Law which govern the way lawyers may
make use of other principles and rules of Law. If that sounds complicated, so
is Pleading and Procedure. For P. and P. encompasses the code of precepts
according to which the legal game is played, once a dispute actually starts on
its way into court. And when you begin dealing with a lot of abstract
principles about the proper manipulation of other abstract principles, you can’t
help getting somewhat confused.
Don’t suppose, either,
that the principles and rules of P. and P. are, for the most part, any more
precise or any less ambiguous than other principles of Law. A bit of evidence
at a trial does not fall into the famous “irrelevant, incompetent, and
immaterial” classification any more automatically than a killing falls into “second
degree murder.” A legal dispute does not involve “two separate causes of action”
– which only means that it will probably have to be tried in two separate
lawsuits – any more readily or scientifically than a piece of paper with
writing on it involves an “executory contract.” The principles of P. and P. are
just as slippery when you try to apply them to the facts of trying a lawsuit as
are other legal principles when you try to apply them to the facts that lie
behind a lawsuit.
Moreover, even though
the P. and P. principles admittedly contribute nothing at all to the actual
solution of the problems that The Law is called on to solve, the decision in
any law case is as likely to be hung on a “procedural” rule as on a “substantive”
principle. All too often, not only “justice” but also the regular principles of
“substantive” Law are thrown out the window simply because some lawyer, in
handling his client’s case, has forgotten or violated a “procedural” rule. Thus
a killing may be, without so much as a legal doubt, a punishable murder, and
still the murderer may go free, for a time or even for good, just because a bit
of evidence used in the trial is labeled “irrelevant, incompetent, and
immaterial.” A man with a legal claim so clear and valid that neither a lawyer
nor a non-lawyer would question his right to have that claim satisfied may get
nothing out of it except a bill for counsel fee, simply because his lawyer, at
some stage of the case, has been caught using the wrong words, according to the
principles of Pleading and Procedure.
Perhaps all this
discussion of the P. and P. “field” may seem irrelevant, incompetent, and
immaterial to the question of how the law schools go about producing
consecrated devotees of The Law. Yet, there is this to remember: — The Lawyers,
and the law schools, admit that P. and P. – or Practice, as this alliterative “field”
is sometimes called – deals exclusively with the tricks of the trade. The legal
neophytes are told that what they learn under the heading of P. and P.
constitutes the technique of the lawyer’s art. As a dentist learns how to
handle his drill so a lawyer learns his P. and P.
By contrast, the rest of
The Law, the “substantive” principles of Property and Quasi-Contracts (oh yes,
there is that, too) and Corporations and all, are pounded into the young legal
brain as Ultimate Truths about Life. Even after the apprentice graduates from
law school, when he comes to take his bar examination, he will find the
distinction carefully preserved. One part of his ordeal will test his knowledge
of “substantive” Law; the other part will test his knowledge of Pleading and
Procedure. One represents wisdom; the other represents skill.
What The Law’s
apprentices rarely learn and are rarely given half a chance to find out is that
the whole of The Law is nothing but a
technique to be mastered, an adroitness to be achieved. That technique, reduced
to its simplest terms, is the technique of using a new language. That is all
the law student learns in his courses on P. and P. That is also the law student
learns in his courses in “substantive” Law. But because the former are frankly
labeled Technique and the latter are labeled Truth, the student comes to
believe implicitly that there is a gaping difference in kind where actually
there is scarcely so much as a difference in degree. “The original burden of
proof is on the plaintiff” is a principle of P. and P. and may help a lawyer
win a lawsuit. “If the defendant’s action was not the proximate cause of the
injury then the defendant is not legally responsible” is a principle of Torts
and may help a lawyer win a lawsuit. All that a student ever learns about
either of these principles – or about any other principle of either division of
Law – is how to say them and when and where it may be useful to say them.
The point is that the
law schools, by admitting that one segment of legal education deals with the
devices of the trade, make quite plausible the fable that the rest of The Law
represents something much more solid. With the procedural courses frankly set
to one side as technique, the big empty words and the vague abstract principles
of the other courses assume a more credible aura of depth and reality to the
newcomer. He can – and does – then believe that the words have meaning and that
the principles are nuggets of wisdom – and it is essential to the perpetuation
of the legal legend that he should believe this. For it would be fatal to the
profession – to its self-respect and its solemnity and its power – if any
generation of rising lawyers were allowed or encouraged to discover the real
truth about the stuff they study. Which is that all the legal principles they ever learn amount to no more than
tricks of the trade and that all the
courses they ever take are courses in P. and P.
And so the law schools
stick to their principles, and to the pretense that the principles stand for
eternal verities which lawyers – after learning how to do it – graciously apply
to the hurly-burly of man’s earthly affairs. The principles, as a matter of
fact, used to be dished at the students without so much as any trimmings around
them. That was when law schools were an innovation, scorned by most lawyers as
an effete and none too efficient preparation for the practice of law, just as
schools of journalism are scorned by most newspapermen today.
In those days, and for
some time after, law students learned practically nothing but naked principles.
The principles of each “field” of Law were sorted out and arranged by
sub-principles and counter-principles in a “hornbook” of Torts or Trusts or
whatever. The students studied their hornbooks, listened to lectures devoted
mainly to explaining and “reconciling” the principles so that they appeared to
fit into one neat little ball of abstract knowledge, and religiously memorized
the principles. They might never so much as read the record of a single
lawsuit. Why should they clutter their minds with disconcerting and trivial
facts when they were engaged in learning great and general truths?
But late in the last
century, a reputed revolution in the manner of teaching Law began to take the
law schools by storm. The new idea was to feed the students the opinions
written by judges in actual cases and let them fish for principles among the
judges’ words. Obviously, it was not the intention of this new approach to
legal education to minimize the importance of principles as such. The purpose
was to let the students ponder how The Law in action made use of its
principles, for judicial opinions amounted to no more than explanations of
actual legal decisions in terms of the principles that “controlled.” The
students still had to learn their principles but they had to find them first.
Of course, the students
did not have to fish in the dark. In each “field” of Law, a big bunch of opinions
was gathered together by some recognized authority in that branch of legal
learning and was then arranged, according to the principles illustrated by the
opinions, in a “casebook.” The students then read the right cases in the right
order and the principles practically popped out at them from the pages. The
facts behind any case did not really matter and were often omitted entirely
from the reprint of the judge’s opinion, as were the parts of the opinion that
dealt with other “fields” of Law. What was important, still, was to learn the
deathless principles, enhanced a bit in impressiveness by the fact that they
were now taken right out of the judges’ mouths.
The “casebook method” of
teaching Law is still the vogue in the law schools. Fledgling lawyers are no
longer encouraged to take their principles straight. In order to learn that
Acceptance of an Offer is essential to the validity of a Contract, they must
plough through half a dozen verbose judicial outpourings which say just that in
one thousand times the space. In order to learn that it is unconstitutional for
a state to attempt to tax property outside its “jurisdiction,” they must worry
through five or ten judicial gems like Senior v. Braden. But when they have
finished, they will usually have learned no more than that Acceptance of an
Offer is essential to the validity of a Contract, or that it is
unconstitutional for a state to attempt to tax property outside its “jurisdiction.”
In many ways, the
old-fashioned hornbook method of legal education made more sense. It was more
direct and more straightforward and you could learn more principles faster. Law
students today pay tribute to it when, after taking a course from a casebook,
they study for their examination in the course from a hornbook. Moreover, it is
an interesting commentary on the most “advanced” law schools, which have
carried the casebook method to such extremes that the principles do not always
come quite clear to the students, that their graduates invariably have to take
special “cram courses” in the bare principles of Law in order to pass their bar
examinations and be admitted to membership in the legal fraternity.
As a matter of fact,
these “advanced” law schools – and there are only a handful of them – with
their extreme use of the case method of teaching, deserve a special word.
Despite the fact that they do not teach their students The Law any too well,
they do teach something else. In so doing, they are traitors to the legal
legend and a potential threat to the perpetuation of the racket of The Law. For
they actually encourage their students to dig out of the cases a little more
than abstract legal principles. The bald human facts that bring any dispute
into court are rated as worth consideration, not merely as an excuse for the application
of The Law, but their own right.
These few law schools
still divide legal education into courses based on different “fields” of Law.
But the courses and the “fields” are more likely to be cut out according to
types of practical problems – Government Control of Business, or Corporation
Management – instead of according to tables of abstract principles. More
significantly though, regardless of course names, the courses themselves (or
most of them, for even the most “advanced” law schools cannot entirely avoid
Law-consecrated teachers) are taught with a different emphasis. That emphasis
is on the non-Legal aspects of earthly affairs and problems which the facts of
any lawsuit bring to light. Students are trained not to discard these matters
as irrelevant but rather to concentrate on them, to think about fair and
reasonable solutions that might be applied to various kinds of problems, still
from the practical standpoint.
If, for instance, a milk
company goes to law to protest against a state statute setting the price of
milk, the past profits – or lack of profits – of the milk distributors, the
medical need of milk for slum children, the present financial shape of dairy
farmers, the personnel and liability of the government agency doing the
price-setting, all may be treated as just as important as the “due process
clause” of the Fourteenth Amendment, the “police power” of the state in
question, or the “affectation” or non-affectation of the milk industry with a “public
interest.” If a widow sues a railroad company because her husband was killed at
a grade crossing, the annual toll of grade crossing fatalities and the cost of
eliminating such crossings altogether and the well-known weakness of both
judges and juries when confronted with weeping widows may all come into the
discussion along with the doctrines of “contributory negligence,” “proximate
cause,” and “the last clear chance.”
Not that the principles
of Law are altogether neglected in these “advanced” law school courses. The
students, inevitably, still read and memorize and try to “reconcile” the same
old concepts and abstractions. But the tough meat of factual problems is mixed
into their educational diet. The cases become more than settings for the
sanctification of legal principles.
Now the results of this
kind of teaching are strange and varied. In the first place, the fledgling
lawyers do not learn their principles nearly so well as their predecessors used
to learn them by the hornbook method nor as their contemporaries learn them by
the regular casebook method. The intrusion of factual issues and of other
considerations which touch The Law only remotely make the principles harder to
concentrate on and harder to remember. That is why they have to take cram
courses after they graduate from law school in order to pass their bar
examinations. The bar examination – and the cram courses – deal almost
exclusively with The Law.
Moreover, the attempt to
tie together the real problems that lie behind all law cases and the abstract
principles on which decisions in law cases are said to be based usually results
in one of two things. For the less intellectually sturdy students, the result
will be utter confusion. They will neither understand the problems nor learn
the principles. But for the brighter boys, the result will likely be a
realization that the problems and the principles have very little in common.
From that realization, it is but a short step to a sort of unformulated
contempt for The Law and its principles. And if legal neophytes should ever begin
to realize, en masse, that legal
principles are largely constructed of long words and irrelevant abstractions,
it would be the beginning of the end of the legal legend.
That is the way and the
only way that the inflated mass of hokum known as The Law might ever be
exploded from the inside. But it is a possibility so remote that it is
ridiculous to contemplate. For the vast majority of legal apprentices in the
vast majority of law schools still go blissfully on pulling principles out of
judges’ opinions, being taught in mental goose-step the sacred language of
concepts and precepts, to emerge as doughty and undoubting defenders of the
legal tradition and perhaps to become eventually Wall Street law partners or
Supreme Court justices.
Those comparatively few
students of those comparatively few law schools who do learn to recognize the
great gap between worldly problems and legal principles – and who do not later
fall prey to the propaganda of the trade they are practicing and forget all
they once knew – can become extremely useful citizens. They have been trained
to look at every legal problem as what it really is – a practical problem in
the adjustment of men’s affairs. They have been taught how to throw aside the
entangling trappings of legal language in seeking a fair and reasonable and
workable solution; and then, having found such a solution, how to wrap it up
again in respectable legal clothes and work for it in terms of principles of
Law. In short, they have learned how to treat the whole of The Law as a
technique, as a means to an end, as Pleading and Procedure. And, more than
that, they have learned something woefully rare among the modern medicine men.
They have learned to concentrate on the end, which is the practical solution of
a human problem, instead of on the means, which is The Law.
Nor is it merely a
question of being able to phrase a desired result in legal language and to
support it with accepted legal principles. That, because of the nature of legal
principles, is a push-over. Every lawyer can do that. Every lawyer does that
every time he handles a case, although he may not always be aware that he is
using a tool rather than Fighting for the Right in the Realm of Ultimate Truth.
It is instead a question of going at the solution of human problems in an
intelligent and practical and socially useful way, and then – and only then – reverting to the medium of The Law. It is a
question of applying to any set of facts a combination of common sense and
technical information and “justice,” undiluted by ambiguous principles – and
letting The Law fall where it may.
Yet, one bothersome
query remains about the rare law school products who have learned how to do
this. Why should their minds and their courses and their subsequent work be
constantly encumbered with a lot of fool principles? Why, after all, should
they have had to learn The Law, too?
CHAPTER X
A TOUCH OF SOCIAL SIGNIFICANCE
“Laws grind the poor, and rich men rule the law.” — Oliver
Goldsmith.
In case it should not
yet be perfectly apparent, it may be worth stating here and now that the
purpose of this inquiry into The Law and its mysterious ways has not been – and
is not – what today would be called a “socially significant” purpose. That is,
it has not been to prove that The Law, in terms of its results, oppresses the
poor and favors the rich and is a tool of the big corporations and is almost
always found on the side of wealth, Wall Street, and the Republican Party.
Practically every critical book on The Law ever written attempts to prove just
that -–and there are hundreds of them. The trouble with them all is not by any
means that they are not, for the most part, quite right. The trouble is that
they get just that far and no farther. Their authors, who are usually lawyers,
have no basic quarrel with The Law as a method, a science, a technique of
running the world. They merely want to see it work for their side. They are not
out to tear down The Law. They are out to remodel it slightly so that its
results suit them better.
The purpose of this
little inquiry has rather been to show that the whole pseudo-science of The
Law, regardless of its results, is a fraud. It is just as much of a fraud when
it sends Dick Whitney to jail as it is when it sends to jail a starving man who
steals a loaf of bread. It is just as much of a fraud when it favors
share-croppers as when it favors coupon-clippers. It is just as much of a fraud
when it protects civil liberties as when it protects the profits of holding
companies. It is just as much of a fraud when handed down by a “liberal” court
as when handed down by a “conservative” court. It is a fraud, not because of
its results but because of the manner in which it purports to arrive at them.
Yet no inquiry into The
Law could pretend to be complete without at least some slight consideration of
The Law’s famous tautological boast about “equal justice for all.” For the
boast is a lie. The Law not only can be bought – although usually not in so
direct a fashion as it was bought from ex-Judge Manton – but most of the time
it has to be bought. And since it has
to be bought, its results tend to favor those who can afford to buy it.
Moreover, the fact that
The Law is constantly for sale, and generally to the highest bidder, ties right
into the fact that The Law as a whole is a fraud. For The Law could not be
bought and it would not favor those who can afford to buy it if the vaunted
principles of which it is fashioned really were the ready keys to certainty and
justice which the lawyers claim them to be. It is because those principles are
so many and so meaningless – because they can be chosen and twisted and sorted
out to support any result under the sun – that The Law does not produce justice (which, in itself,
implies equality of treatment for all).
In considering how and
why The Law has to be bought, it might be well to remember once more that The
Law is not the laws, as most people think of the laws. It is true that
legislatures and members of Legislatures and members of Congress have been
bought, or at least paid for, so that they would vote for or against proposed
statutes which would affect the interest of those who did the paying. But this
practice, though deplorable, is a minor phenomenon compared to the
day-in-and-day-out purchase of The Law. For The Law is that body of abstract,
amorphous rules which supersede written statutes and even constitutions and
under which the lawyers and the lawyer-judges resolve all our problems, settle
all our disputes, and run all our lives. It is well worth buying.
How, then, is The Law
bought? How is it regularly turned to the account of those men and those
companies who have money enough to pay what is costs? The Law is bought, to put
the answer bluntly and briefly right at the start, by hiring the services and the
advice of the smartest lawyers, of the professional soothsayers who are most
adept at manipulating the principles of which The Law is made. It is bought by
paying a premium, in court and out of court, to the twentieth century medicine
men who can best cast spells of legal language to protect and defend the
personal and financial interests of those who would be hard put to protect and
defend such interests in terms of justice, undiluted by Law.
Now most people, if they
think at all about what money can do in the way of legal protection, think
exclusively about criminal law. They think about Leopold and Loeb being able to
hire Clarence Darrow to keep them from the electric chair. They think about the
Mitchells and the Insulls, the captains of industry who get caught doing
strange things with other people’’ money, and who can then buy the services of
the cleverest and yet most respectable members of the bar to save them from
legal punishment. People contrast such goings-on with what happens daily to the
ordinary murderers and ordinary thieves who can only afford the cut-rate prices
charged by poorer lawyers, or who have to have their lawyers supplied them
free, and third-rate – just so that the outward appearance of the
justice-for-all ceremony may be maintained. And most people realize that there
is something distinctly unfair about all this. There is – but it is only a very
small part of the story.
In the first place,
criminal cases, although they take up most of the newspaper space devoted to
The Law, take up only a fraction of the time of the courts. The bulk of the
business of the courts is given over to what the lawyers call “civil” suits, in
which one person sues another person or one company sues another company,
usually over some financial or business squabble. In these cases, just as in
criminal cases – and it is particularly noticeable when a corporation is on one
side of the dispute and a lone individual on the other – the most money buys
the best legal assistance. And the better your legal assistance, the better your
chance of ending up with The Law in your favor.
For, as cannot be
repeated too often, The Law is not by several long shots the certain and exact
science as which it masquerades. If it were, even the richest corporation in
existence would not throw its money away on the tremendous fees that the
leading lawyers charge their clients. Any lawyer, or perhaps no lawyer at all,
would do just about as well. But the corporations know and the lawyers know
that a master manipulator of legal mumbo-jumbo is a far more useful thing to
have on your side in a lawsuit than all the certain and impartial justice in
the world.
True, in a great many
legal disputes, there will seem to be more principles of Law or more compelling
– in the abstract – principles of Law available to one side than to the other.
But the other side will always have some principles left to play with. And just
as in the game of bridge, so in the game of Law, an expert player will beat a
run-of-the-mill player nine times out of ten despite the fact that he may hold
worse cards.
Yet it is not only and
not chiefly in the purchase of smart counsel to represent you in actual court
cases that The Law has to be bought. The Law, although it oversees all human
affairs, does not apply itself automatically to the settlement of human grievances.
The man who thinks he is being cheated in a personal or business way, who
thinks he is being deprived of his just rights so clearly that it is even a
violation of the legal system of far-fetched principles, must go to court to
try to get any satisfaction at all from The Law. And it costs money to go to
court. It costs money even before the bills for lawyers’ fees begin to come in.
That is why most people never in all their lives become plaintiffs in a
lawsuit. Farmers and factory-workers and housewives and unemployed people have
their legal grievances just as rich men and big corporations have their
grievances. But they cannot afford to buy so much as a shot at The Law.
A man who is pretty sure
the agreement he made is being broken, when the finance company takes away his
car or his radio because a couple of payments have been delayed, would not
think of hiring a lawyer and going to court about it. It costs too much. A
clerk in a big department store who thinks that some new government statutes
hits him in an unfair and perhaps illegal way would not dream of going to court
about it. But the store would go in a minute if it felt cheated by some written law. A workman’s wife who is
desperately unhappy with her husband and has perfectly adequate grounds for
divorce will not sue for one. Divorces, like suits against the government and
legal efforts to get a fair deal in ordinary business arrangements and like
almost every kind of law case in the book, are the exclusive luxuries of those –
and there are very few of them – who have money enough to pay for The Law.
A several-million-dollar
corporation recently complained in print about the terrific cost of carrying to
and through the courts a protest against a ruling of the National Labor
Relations Board. The point was well taken. Yet it serves quite nicely to
emphasize the utter helplessness of the ordinary man with a grievance that he
would like to expose to The Law. The corporation at least could and did afford
to pay the thousands of dollars necessary to get a legal hearing on the wrong
that it thought had been done it. But what chance, for instance, would an
employee, or a customer, of the corporation have to air his complaint in court
is he thought he had been unfairly and illegally treated by the U.S. Government
– or, for that matter, by the corporation itself? The disadvantages of the
corporation, up against the U.S. Government in a matter involving The Law, are
as nothing compared to the advantages the corporation holds over every
individual who works for it, buys from it, or invests in it wherever The Law is
or might be concerned.
Still, it is not in
buying smart soothsayers to talk for you in court, nor even in buying your way
into court in the first place, that The Law is most commonly and most
effectively sold and purchased. Most of the business that lawyers handle and
live on is made up of matters that never get near a courtroom. Most of the
business that lawyers handle and live on is made up of what is called legal advice,
usually about financial matters, that is tendered, at a price, to those men and
those companies that feel it will be well worth-while to get The Law safely on
their side before they embark on any money-making or money-saving deals of any
kind. Any legal advice amounts, for the most part, to casting spells of legal
language over the wording of business documents so that the documents, if they
ever should be dragged into court,
will show that, regardless of where non-legal justice may seem to lie, The Law
is pretty clearly on the side that bought the legal advice.
To take a very simple
example, suppose a man should set up a parking lot and hand out plain numbered
tickets, like the checks you get when you check your hat in a restaurant, to
everyone who parks his car in the lot. Suppose a woman should park her care and
leave her fur coat in the back seat and should come back to find the fur coat
gone. Suppose, moreover, that she should be mad enough and wealthy enough to
sue the parking lot owner for the loss of her coat. The chances are strong that
The Law, after tossing abstract principles around in profusion, might hold him
responsible for the loss and make him pay her the value of the coat.
Yet most people who lose
articles out of cars left in parking lots have scarcely a Chinaman’s chance of
getting a cent out of the lot owners. Most parking lots are owned by people or
companies with money enough to buy legal advice beforehand. And so most parking
checks are not plain pieces of cardboard with numbers on them. They have
numbers on them all right, but on the back of the check or at the bottom is
printed in small type “The owner of the car covenants that the bailee will not
be held liable or responsible for the loss, theft, and/or damages of articles,
etc.” – or words to that effect. Courtesy of the legal advice, The Law has been
carefully placed on one side of the potential lawsuit – without so much as the
knowledge of one of the “parties to the contract” that it has been placed there
– just in case.
It is the same – on a
much larger and more complicated scale – with leases. It is the same with
mortgages. It is the same with insurance policies. It is the same with stock
issues and bond issues and all the other legal devices by which business
concerns of all kinds and shapes earn, beg, borrow, or steal other people’s
money to use for themselves. There is always that big block of small type,
sometimes running to several pages, which the ordinary purchaser or tenant or
borrower or lender or investor does not bother to read and probably could not
understand if he did read it. That block of small type is put there at the
advice of lawyers, and what it means is that is any trouble should arise over
the little business arrangement, the ordinary purchaser or tenant or borrower
or lender or investor is almost surely going to lose if he should be fool
enough to carry his complaint to The Law. For the other fellow – the company or
the individual with money enough to afford it – has been canny enough to buy
The Law in advance.
Of course it often
happens in the world of finance and industry that both sides of a business deal
are able to hire legal advice right from the start. That is the lawyers’ heyday.
Counsel for each side, without so much as a minor lawsuit anywhere in prospect
at the time, will fight to outdo each other in the clever manipulation of legal
language and the careful building of legal fences, so that their clients’ interests
may later be defended, if necessary, in strict accordance with principles of
Law. Yet unless one set of lawyers is much smarter than the other set of
lawyers, both sides might just as well dispense with their lawyers altogether,
so far as driving a reasonable and profitable and fair business bargain is
concerned. The hitch is that as soon as one side resorts to legal advice, the
other side has to use it too in self-defense. Thus everybody loses except the
lawyers, who go merrily on selling The Law.
But since most business
transactions involve a big fellow and a little fellow – a company, for
instance, that can afford legal advice and a customer who can’t – The Law is
usually weighted to one side from the very beginning. It is weighted by lining
up beforehand, in the written terms of the transaction, the legal language that
will fit right into legal principles in any lawsuit that might later arise out
of the transaction. And it is in this fashion, even more than by the hiring of
smart word-jugglers to represent you in court or by the purchase of a court
hearing to begin with, that The Law is regularly bought and, therefore,
regularly tends to favor those with money enough to buy it.
That is why the center
of the nation’s law business is in New York City and why the bulk of the nation’s
influential and profitable law practice is carried on in the Wall Street law
factories. People and companies in other parts of the country have their legal
grievances and disputes and their court squabbles, and they have them in much
greater proportion than the proportion of the nation’s law business that is
carried on outside New York. But the richest people and the biggest companies
make almost all their financial arrangement and their important business deals
in New York. And financial arrangements and important business deals, even more
than actual legal disputes, are what the lawyers thrive on.
Most New York lawyers
spend most of their time working out legal advice for the business titans that
make their financial headquarters in the city. It may be advice about how to
word a series of mortgages or conditional-sale contracts or leases or stock certificates,
so that the little fellows on the other side of the deals will have little or
no chance for legal redress if they should later feel themselves cheated. It
may be advice about an intercorporate transaction, where the sole real
usefulness of the advice will be to counter any tricks of legal language that
the other side, also advised by high-paid lawyers, might try to pull. It may be
advice about how to get around a bothersome government regulation and still
keep on good terms with The Law, which of course is more almighty than any
government regulation – advice that thousands of smaller companies or less
wealthy people would love to have too, if only they could afford it. It may be
advice about how to make use of legal language so as to get out of paying taxes
– as when J.P. Morgan, for all his yacht and his grouse-shooting, perfectly
Legally avoided the federal income tax for a couple of years while hundreds of
thousands of $1500-a-year men had to chip in to the U.S. Treasury.
In any case, it will be
advice which has a dollars-and-cents value, to the person or the company that
buys it, somewhat greater than the stiff price the lawyers charge for it. And
the direct or indirect losers in the whole affair will be the companies and
people by the millions who cannot afford thus to buy The Law. There is no more
striking parody of The Law’s boast that it represents “equal justice for all” than
in the work of those top men of the legal trade who cluster and prosper in New
York City.
Moreover, most good
lawyers go to New York before they die. They go to New York because that is
where they can make the most money out of their knack of tossing around legal
principles and legal language. As a matter of fact, herds of them are coaxed
straight to New York from the law schools every year. And thus, incidentally,
the profession gets in another telling blow for the perpetuation of the legal
legend. For whatever slight doubts about the reasonableness, practicability,
and majesty of the legal process may have been left in the smart youngster’s
heads, after three years of rigid drilling in the sacredness of abstract
concepts, quickly evaporate in an atmosphere where The Law is acknowledged king
– and the king and his pet courtiers are so handsomely rewarded.
Here too is the kernel
of another reason why The Law is kinder to the rich than to the poor. Not only
are the most promising young hocus-pocus artists immediately lured to the
service of those who pay them the highest wages for the magic, but out of this
group spring, eventually and almost automatically, most of the acknowledged
leaders of the profession. For, as in other trades and professions, earning
capacity is universally and blindly accepted as the hallmark of real ability.
(Benjamin Franklin once paid tribute to this fact when he suggested that the
lawyers appoint the judges, on the ground that they would always pick the ablest of their clan so that they might
most profitably divide each new judge’s
practice among themselves.) And – despite the fact that Franklin’s scheme has
never been put to the direct test – it is out of the acknowledged leaders of
the profession, who are acknowledged to be leaders because they make so much
money, that most judges are chosen.
Now when a lawyer
becomes a judge, he no longer has a direct financial incentive to manipulate
The Law in favor of the rich people and the big corporations. But he will
usually have spent most of his professional life, before he became a judge,
doing just that. What is more, he will not have admitted, even to himself, that
he was doing anything other than apply an exact and impartial science to the
orderly management of men’s affairs. In inevitable protection of his own
self-esteem he will perforce have swallowed most of the legal legend whole. And
consequently he will have hardened into a habit of mind whereby justice and the
legal principles he is used to using are just about synonymous.
When he becomes a judge,
he cannot easily shake off this set slant toward The Law. The principles and
concepts he once flung about and fought for, mouthed now by other lawyers
trying cases before him, will still have a familiar and authoritative ring. Such
phrases as “freedom of contract” and “caveat
emptor” and “the sanctity of written (by lawyers) agreements” and “deprivation
of property without due process,” along with all the minor and equally vague
abstractions with which lawyers customarily defend, in and out of court, the
interests of their wealthy clients, will strike the eyes and ears of the judge
as good sound legal doctrine. By contrast, the phrases and principles of Law
customarily used to argue against such interests will seem less familiar, less
orthodox, less compelling. Conditioned by his own past habits of legal speech
and thought, the judge will unconsciously lean, in laying down The Law, toward
the side that talks his old brand of legal dialect. Which means that he will
lean toward the side where the money lies – and The Law will lean with him.
There is one more
important reason why The Law regularly tends to favor the rich, the
conservatives, the people and companies with plenty of money and property who,
not unnaturally, want to keep all their money and property and keep on getting
more of it in the same old ways. This reason is inherent in the very nature of
The Law itself. For The Law, you may remember, purports to be a great body of
changeless abstract truths. Times change, and ways of living change, and the
facts of human affairs change, but the principles of The Law remain unmoved and
steadfast. In short, The Law, by its own definition, is a stand-pat science.
And of course it is the
wealthy and well-to-do who are always stand-patters; the poor and the
not-so-well-to-do are the progressives and the radicals. The moneyed groups are
for the most part very nicely satisfied with the old arrangements of things.
Justice or no justice – in the original Christian sense of the word – they don’t
want to see the rules shifted in the game of getting ahead in the world. And
they find in The Law a philosophical and less obviously selfish defense of
their resistance to change.
They also find in The
Law something more solid and more useful than a philosophical defense of
conservatism. For The Law, mysteriously brought to earth by lawyers and judges,
does control all earthly affairs. And in being transmuted from abstract
principles into specific decisions about human disputes and problems, it
retains its reactionary flavor. New rules of the game, new arrangements in men’s
activities, new considerations of what is practical and what is fair, fit less
smoothly and less snugly into The Law’s scheme of principles than do the old
considerations, the old arrangements, the old rules.
That is one reason why
so much “progressive legislation” – meaning laws that try to change the rules
to favor the poor at the expense of the rich – is either damned entirely or “interpreted”
into ineffectiveness by the courts. The novel arrangements just don’t slide
easily into the old unchanging principles of Law. For instance, the newfangled
notion that a worker ought to be paid a living wage didn’t stand a chance when
it first came up against the age-old Law-encrusted right of a corporation to
pay its workers as little as it pleased. There might have been a law about it,
but The Law had never heard of such a thing. Similarly, the idea that a
homeless man might be legally justified in breaking into an empty house to
sleep – an idea that could certainly be argued from the standpoint of pure,
unadulterated justice – would be laughed out of court today. As would the idea
that a bond salesman, whose glib assurances had led an old lady to invest her
savings, could be sued by the old lady for what she lost when the bonds later
became worthless.
For the judges will not,
if they can help it, go to the trouble of reshuffling The Law’s huge deck of
abstract principles in order to reach, and rationalize, a radically different
set of practical results. Only rarely and reluctantly will they turn the stream
of legal logic in a really new direction. Only rarely and reluctantly will they
tolerate, in The Law’s name, far-reaching or basic changes in the manner of
adjustment of human problems. Thus not only The Law but the general trend of
legal decisions remains the same. And by remaining the same it favors the
interests of those who stand to benefit by a retention of the old rules. It
favors the conservatives. It favors the rich.
Yes, the “socially
significant” books about the inequalities and injustices of The Law in action
are right – as far as they go. And incidentally, a prominent member of the bar
recently summed up a large part of their theme in a phrase when he described
the ideal client, the lawyer’s dream, as “a rich man who is scared to death.”
But still it is the fact
that The Law as a whole is a fraud that lies behind all the inequalities and
all the injustices. It makes it worth-while for those with money enough to
afford it to buy the court services and the pre-court advice of those
mumbo-jumbo chanters and scribblers who can best wring desired results out of
legal language and legal principles. It makes it worth-while for those with
money enough to afford it to buy their way into court, if the results they want
wrung out of The Law cannot be otherwise attained. It is responsible for the
myopic inability of most judges to see beyond the one-sided principles they
used to use when their own services were for sale to the highest bidders. It is
responsible for the inherent inertia, the congenital conservatism, of The Law
in action. For if The Law were really the exact and impartial science it
purports to be, instead of being an uncertain and imprecise abracadabra devoted
to the solemn manipulation of a lot of silly abstractions, none of these bases
of inequality and injustice would, or could, exist.
The Law is indeed a
menace when it works so as to pervert its own boast of “equal justice for all,”
when it favors the rich and oppresses the poor, when its results, in the mass
or in the particular, seem to be plain denials of ordinary non-legal
impartiality and fairness. The point is that even when The Law works, as it
sometimes does, so as to produce fair and impartial and practical results, it
is nothing but an unnecessary and expensive nuisance. Those results might have
been achieved much more simply and easily and painlessly without recourse to
the metaphysical nonsense of The Law. And it is the point which the “socially
significant” boys invariably miss.
The “socially
significant” plot has grown stale in the telling. It always revolves around the
conventional triangle of the rich, the poor, and The Law. And the villain
always walks off with Lady Law in the end. Which is supposed to show that she
is a villain too, whereas actually she is only an empty-headed fool who neither
knows nor could be taught any better.
CHAPTER XI
LET’S LAY DOWN THE LAW
“The first thing we do, let’s kill all the lawyers.” — William
Shakespeare
What is ever to be done
about it? What is ever to be done about the fact that our business, our
government, even our private lives, are supervised and run according to a
scheme of contradictory and nonsensical principles built of inherently
meaningless abstractions? What is to be done about the fact that we are all
slaves to the hocus-pocus of The Law – and to those who practice the
hocus-pocus, the lawyers?
Black Wolf // March 5, 2009 at 1:20 p
Damn! The Klan!
Maybe you’re right!
Must be the Cult!~ // March 6, 2009 at 5:19 p
It must have been a cult member or Hot Toddy himself. I heard Smith recently walked up to a girl right in front of the Kofee F ing Kup in Grantsville and grabbed her breast and said, “Tit for Toddy, Tit for Toddy!”
Also a special message for Lunacy Lucy aka “Kelli”
I know you really want to tell me goodbye
There you are knocking on my front door
Using the same line as before so snorted same.
This doesn’t have to be the big get even, this doesn’t have to be anything at all, and I know you can’t look me in the eye, but just one thing….
Stop dragging that Gila Monster Around!
calhoununderground // March 7, 2009 at 9:24 p
Already see casualties in the extended “family”. Several deaths from Morphine patches, a couple from methadone…
Unfortunately asking “God” to help is like whistling in the wind. I mean, who is he and where does he live? Ya may as well ask yer neighbor…
Asking for a group of assholes to “help” like the KKK is not any better, they come with too much negative baggage and it could end up turning on you. Hate doesn’t fix things, as we can see by simply watching what the police do. Anyhow, truth be known, probably the majority of KKK in this area ARE the corrupt police officers and their criminal court room buddies! The “elite” are probably the ones under the sheets. Screw that! Hiding your face under a disguise usually means they got something to hide.
Nope, we (regular folks) who have friends, loved ones, family members who are running in the bad circles need to do the dirty work ourselves. We need to keep the law and the evil racists out of it.
Editors note: Very well spoken, at least you have an idea of a solution. The powers that be have no solution. Only chaos!
crookedcountycrooks // March 7, 2009 at 9:39 p
The KKK aren’t really racist. They just don’t like black people.
Have You Noticed? // March 8, 2009 at 10:32 p
Has anyone noticed hot toddies new crooked penis? It is decorated for Christmas and there are no commenters on anything he says or does and has become a total loser, not looser like Toddy doo doo says.. I think that means no one gives a shit Toad or is that Todd!! I think I have to go take a Todd! Ewwww doo doo!
Also,I think the name is supposed to be Gila Monster as your dildo again, but he can’t even spell that correctly. It is he la on his site. Well Gila on Kelli Lawson a lot. In her, on her. Her real name should be Enya, so we could say, “Is it in ya or on ya?” No, She prefers Onya but it is spelled Enya. Well, whether it’s in her or on her, she still has those little Gila monster hickeys all over her thighs.
Hot toddy was paroled on the town last night for hours of snitching, must have been looking to sell his drugs to try to fuck all the young people in town. I mean we all know he doesn’t hold a job…….
He is already SNITCHING, snitchin… on everyone who was his friend. Of course, he is no better than the crimes he talks about, no better than the crooked dick he is always playing with. You would think from the way he talks that he thinks he is cleaning up the town of crime, when he sends all that money to gang members in CRJ
Reportedly Hot toddy ran his crooked dick into the crooked river behind his apt. yesterday. Another insurance claim I suppose. I know he needs money bad cause he got kicked out of college for cheating AGAIN and the college wants about $3000 dollars from him AND they kicked him out, plus all the dope deals he said he could pull off, but for some reason they never got the dope they ordered. You can only pull that shit so many times before they dismiss you.
Look out Pine Creek residents cause he is moving in with you. Scarey, especially when that Gila Monster doesn’t get his fair share of that stanky dry snatch of Lunacy Lucy!
Jamtart // March 10, 2009 at 8:40 p
I bet the missus gets really pissed when the sheets come up missing.
Editors note: Hmmm..could be right about that! In fact, lets sing a little song!
Ring that bell. Shout for joy. White man’s day is here.
Gather all those equals up and herd them on the pier.
America for white. Africa for black.
Send those apes back to the trees. Ship those niggers back.
Ring that bell. Shout for joy. White man’s day is here.
Twenty million ugly coons already on the pier.
America for white. Africa for black.
Send those apes back to the trees. Ship those niggers back.
Ring that bell. Shout for joy. White man’s day is here.
Boats are ready for the trip. We won’t shed a tear.
America for white. Africa for black.
Send those apes back to the trees. Ship those niggers back.
Ring that bell. Shout for joy. White man’s day is here.
Hand that chimp his ugly stick. Hand that buck his spear.
America for white. Africa for black.
Send those apes back to the trees. Ship those niggers back.
Ring that bell. Shout for joy. White man’s day is here.
Twenty million jigaboos Africa will steer.
America for white. Africa for black.
Send those apes back to the trees. Ship those niggers back.
Ring that bell. Shout for joy. White man’s day is here.
There they go far out to sea. See them disappear.
America for white. Africa for black.
Send those apes back to the trees. Ship those niggers back.
Ring that bell. Shout for joy. White man’s day is here.
Boats are leaking badly now. They sink we sadly fear.
America for white. Africa for black.
Send those apes back to the trees. Ship those niggers back.
cosmoscommunicator // March 11, 2009 at 3:06 p
It appears that HOT TODDY is continuing with his harassment of the Grantsville mayor. Hot Toddy and several fire starting cult members have been carrying on with an ongoing criminal attack against the Mayor’s wife and son.
The fire starting cult has the home of the mayor staked out, and is constantly following the wife and son.
Also, Christopher Todd SMITH, aka “Hot Toddy” is a known arsonist and rapist with a long criminal record and is a detriment to the local community.
Smith claims to be banging the box of the new prosecutor! IS this the reason he is never jailed long?! OR, jailed at all?
Smith is also a well known police informant.
We also were told that a price was place on Smiths head by members of an organized gang.
Obviously, the fires have continued, along with several mysterious traffic accidents and deaths locally. A private investigation indicates Smtih is involved in at least two of those deaths, but the local cops are not even investigating the matter.
Must be the Cult!~ // March 12, 2009 at 12:05 p
America for white. Africa for black. Hot Toddy for shit.
crookedcountycrooks // March 12, 2009 at 12:45 p
Just received word that a lawyer from Ohio assisted his client in filing charges against C. Todd Smith, for contacting an employer, stalking, harassment, terrorist threats and two other charges. Smith is known to have contacted a network of other allies who assisted him in this criminal activity.
We interrupt this special report to give you something to think about from our favorite, Ron Paul.
By Rep. Ron Paul
Imagine for a moment that somewhere in the middle of Texas there was a large foreign military base, say Chinese or Russian. Imagine that thousands of armed foreign troops were constantly patrolling American streets in military vehicles. Imagine they were here under the auspices of “keeping us safe” or “promoting democracy” or “protecting their strategic interests.”
Imagine that they operated outside of US law, and that the Constitution did not apply to them. Imagine that every now and then they made mistakes or acted on bad information and accidentally killed or terrorized innocent Americans, including women and children, most of the time with little to no repercussions or consequences. Imagine that they set up check points on our soil and routinely searched and ransacked entire neighborhoods of homes. Imagine if Americans were fearful of these foreign troops, and overwhelmingly thought America would be better off without their presence.
Jamtart // March 12, 2009 at 4:50 p
Let’s expand on this a little. What if this government decided our government was illegal because it the constitution was never agreed upon unanimously as was REQUIRED by the then current laws call The Articles of Confederation? What if they rounded up all of our elected officials and arrested them, killing any that resisted?
Just something for on elected officials to think about.
Editors note: God damn! Now we know who the real outlaw is in the CCC and it’s Jam Haines Radio operator.
Must be the Cult!~ // March 12, 2009 at 5:52 p
Man that almost sounded real!
Jamtart // March 12, 2009 at 7:21 p
Yeah. Wouldn’t it be really radical if that is REALLY what happened?
Jamtart // March 12, 2009 at 7:36 p
Just think. A select few overthrew the United State of America for their own version of government; The Constitution. Guess they got too big for their britches after kicking England’s butt. “We make the laws. WE don’t have to follow them.”
calpattypress // March 17, 2009 at 5:00 p
Will it be the luck of the Irish?
2 Bad guys
- State vs. William Denmark, sentencing, Ernie Skaggs counselor
- State. vs. Christopher Todd Smith. sentencing, Tom Whitter counselor
BEFORE JUDGE NIBERT TODAY!!
Is Hot Toddy really banging the box of ….
Shelly Morris DeMarino
….Lady of the court down near the Calhoun Lagoon of Conspiracy.
Will Hot Toddy walk again?
Will William Denmark makes his mark. Will willy should have kept it in his pants. Now he may have to do a little dance…sing a little song,,,and get down tonight!
calpattypress // March 20, 2009 at 9:14 p
Bob Weaver, Godfather of the Central WV truth blogs reports on Hot Toddy!
SMITH SENTENCING CONTINUED AFTER PROBLEMS SURFACE
(03/20/2009)
Grantsville resident Christopher Todd Smith’s sentencing set for Monday in Calhoun Circuit Court was continued.
Smith’s attorney Tom Whittier had just received his pre-sentencing investigation, and for that reason the sentencing was continued until April 6th.
Smith has already entered into a plea agreement after pleading guilty to a charge of “conspiracy to possess a controlled substance with intent to deliver with an unknown individual.”
He had been charged by the Grantsville Police Department in 2007, after authorities reportedly discovered a gallon bag of marijuana and paraphernalia in his residence.
The plea agreement said “That the defendant agrees to appear and truthfully testify as to all matters within his knowledge when summoned by any party in any criminal matter.”
Charges against Smith in recent years appear to have been dropped or re-mediated, based on Smith’s cooperation with local authorities in criminal cases.
Numerous other technical conditions were included in his recent plea agreement.
The state also agreed to dismiss any charges pending against Kelly Lawson, related to the case.
All charges were dropped related to the 2007 incident where he was accused of shooting a BB gun at a Charleston Gazette newspaper carrier.
Editors note: Even the Hur Herald has had to be critical of our local leaders in reference to letting a criminal on the loose, to the detriment of the community, just so SMITH aka Hot Toddy can snitch on people that, most likely, are not even guilty. That certainly is the worst kind of confidential informant there is. We have sent that important message to a few organizations that have certainly a different opinion on how the Smith matter should be handled.
Found floating down the Crooked River seems to be the most popular solution.
calpattypress // March 20, 2009 at 9:25 p
Bob also reports on the famous LONE METH RANGER
JOHN MANIS RICHARDS COULD GO TO TRIAL – Several Lawyers And Judges Later, Gilmer Theft Case Set For May
(03/20/2009)
By Bob Weaver
Grantsville resident John Manis Richards (left) is scheduled to appear in Gilmer County Circuit Court on April 17 to hear motions related to charges involving the alleged stealing of equipment and materials from Hardman Supply of Glenville in July, 2007.
Richards’ trial had recently been delayed because his attorney’s office had burned to the ground, destroying Richards’ files.
Attorney Christopher Moffatt has now been appointed to the case, replacing Kevin Hughart.
Two judges have now recused themselves from hearing the Richards case.
Gilmer Circuit Judge Jack Alsop advised the Chief Justice of the Supreme Court of Appeals that he was assigned to the Richard’s case following the recusal of the Honorable Richard A. Facemire.
Alsop said upon a review of the reasons for recusal, he felt he should also be removed from the case.
Facemire was recused from the case last October, saying “That upon reviewing certain pretrial sections, the Court noted that part of the basis from the Defendant filing a motion to recuse the prosecuting attorney Gerald Hough from prosecuting this case was related to information on two web sites … “Lone Meth Ranger” and “Cal Patty Press.”
“The Court reviewed those web pages and noted that there were allegations and innuendo that Richard A. Facemire was not impartial and unbiased,” he said.
Honorable Larry V. Starcher, former Supreme Court court justice, has been recalled for temporary assignment to hear the Richards case.
Richards’ trial is now scheduled for May.
He was indicted in March, 2008 on three counts involving the Hardman Supply incident, where he allegedly took a delivery truck worth $30,000 and $3,200 in building materials and tools.
Richards had been eluding authorities for several months when he was spotted and arrested by Gilmer Sheriff Mickey Metz.
A 2003 case accused Richards with the theft of about $13,000 worth of materials from Hardman’s or other outlets.
Richards is known for his web site “The Lone Meth Ranger,” where he claims to battle the production of the illicit drug in the region and defends himself from charges filed against him.
Richards is well-known to the court system, with a high profile meth case against him being dismissed after Grantsville State Police lost the evidence.
State Police declined to confirm the findings of an internal investigation of Sgt. C. J. Ellyson, who admitted he had thrown the meth evidence away.
Ellyson was reportedly fired from the agency over the lost evidence and other alleged incidents, none confirmed.
The Richards case was one of only two for alleged Calhoun-originated meth making incidents brought forth by the Grantsville State Police during the past ten years.
Hundreds of meth-related arrests have been made in neighboring counties, some of them linked to Calhoun citizens.
Editors note: Everybody knows all the good Meth is made in Gilmer County and Calhoun County, because someone is paid off! You may notice that Gerald Hough had almost zero drug convictions last time we checked. The new prosecutor in Calhoun County is a complete joke, especially she is being ridiculed by many people for her handling of the Christopher Todd Smith case. If you want to know where all the weed is,try checking the storage facility of Gerald B Hough high on the hill.