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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Monday, March 20, 2006

False Compulsion

And Also: The almost expected happened, not making it any less troubling. Korea finally lost a game, their third against Japan, ending the WBC at 6-1. The first two rounds were basically best of three, but the semifinals were sudden death. This was acceptable for Cuba/DR, who both were not perfect beforehand. But, a 3-3 team being able to get to the finals by beating a 6-0 team once ... a team that beat them twice already, seems unfair. They did win big, but that only tempers things a bit. Cuba getting to the finals btw is not surprising -- their season is ongoing at this point (so they are in game shape), and their ability is well known.

Billy Budd, perhaps the second most well known work by Herman Melville, is ultimately a parable. Budd is an innocent, impressed from a the Rights of Man (ship) by the British to serve on the Bellipotent during the war with France. Clearly instigated, he serves a single but deadly blow on a hated member of the crew. The captain, appealing to the rule of law -- especially in wartime -- called for an immediate on board hearing during which he reminded the doubtful men that they did not serve under the interests of moral/natural law, but the Royal Navy. He bluntly referenced the very buttons on their uniform. The hearing not warranting an appeal, he was executed the next day, honoring -- like Socrates -- his executioners. For was not the law upheld?

The captain protested, accepting the uncomfortable nature of the events, that his acts were compelled. The alternative (the stakes) was basically anarchy (and were they not fighting the products of the French Revolution?). And, the law they were obligated to follow -- though Budd's own impressment suggests at best a Hobbesian reason for such obligation -- also justified their actions. It was an honorable choice -- ultimately, the responsibility was not their own, they mere servants of a higher power. A power of some greatness, surely, again underlining the need to make some uncomfortable choices among the non-utopian options available. At the end of the day, Melville suggests the captain does not feel guilty about the execution of Budd, even though the Captain Vere (as in "severe") was heard muttering his name on his deathbed.

Helped by the fact that it was a device in Melville's earlier works, the general sentiment also is that the book is in effect a thinly disguised metaphor for slavery. The impressment angle underlines this, perhaps a not too far step from the rendition of fugitive slaves back to slavery. Also, the Captain himself is seen as a stand-in for Melville's own father-in-law, the great Massachusetts jurist, Lemuel Shaw. Chief Justice Shaw (himself against slavery) was denounced for his claimed "compulsion" to follow the Fugitive Slave Act of 1850. He was compelled to do so ... the central decisions were constitutional and legislative ... and there was a basic security need. The very union was at stake.

Justice Accused: Antislavery and the Judicial Process by Robert Cover concerns this appeal to "formalism," prefacing things with the story of Budd. Though referencing the play between the joints in some aspects of slavery jurisprudence, Cover only briefly notes the questionable "compulsion" in various fugitive slave cases, cases that turn out to not be as (sorry) black and white as claimed. [I think it would have been helped if he did a bit more in this regard, to underline the clear choices being made by the judges involved. The book ends on a weaker note than it needed to do so ... the opening chapters the best.] Don Fehrenbacher (best known for his great work on the Dred Scott Case) in his final work on the slavery question underlines the point.

For instance, surely, the Constitution obligates rendition of fugitive slaves. Nonetheless, it did not obligate states be forced to allow slave catchers to enter free states, seize without process ("self-help," a common law method of returning "property," I believe) persons (as they are so-labeled, no matter how many times they are deemed "property" in court opinions even by the likes of anti-slavery sorts like Justice Story) deemed in those states to be free and carry them back to slavery. Or, not even allow the slave to speak up at the stacked hearings set up, while they could be returned with hearsay evidence. If whites were so treated (and the "one drop rule" alone suggests how color is not fungible here), especially when the federal government was involved, the Bill of Rights alone would guard against it.

But, such fundamental freedoms (ratified btw after the Fugitive Slave Clause, and clearly limiting such open-ended provisions by design) are shunted away largely in throwaway lines. Anyway, the hearings were mostly pro forma and preliminary. If necessary, they could retain relief in the states where they were remanded. Not that such "non-persons" (surely after Dred Scott) had any presumptive "right" to court process etc. One more honest jurist basically admitted the fact, but deemed it a necessary evil under our constitutional order. The idea the largely afterthought Fugitive Slave Clause (one vaguely written and placed in Art. IV in such a way that it is even questionable that the federal government was meant to get involved at all) was a sort of deal breaker also was a legal fiction. And, as Shaw's biographer noted, various other problems of the 1850 law made his "compulsion" to uphold it rather questionable.

The claims of compulsion -- putting aside the judge's putative personal views (I find this public hand-wringing somewhat distasteful -- doth protest too much) -- therefore turn out to be somewhat flimsy. If anything, the compulsion is not of the clear legal sort, but a higher one -- a basic belief that the alternative is too dangerous to imagine. And, often rising from current events, or the tenor of the judge's times as s/he sees them. Thus, when CJ Taney injected his own views into the minds of the Framers -- many of whom did foresee slavery ending or tempered, if only by means such as liberal manumission laws that would allow blacks some form of freedom with the rights that brings -- the fears are clearly at times their own, even if their are pushed on to the Framers themselves.

The necessity argument might in various cases actually be true. But, it is a much closer call than suggested, and the severity "mandated" turns out not to be the case. Again, this is shown in the case of Budd ... per a recent analysis of the work. The "drumhead court" was in no way compelled by the events -- in fact, it appears that the measure was generally disfavored. And, the court itself seems to have been stacked -- the members somewhat unsuitable for that role, except perhaps as better able to be controlled by the captain's will. Melville has I believe the ship's doctor -- on Star Trek, Mister Roberts and other works often the most philosophical/learned individual on board -- reference some doubt to the whole proceedings. This too would be of a piece with the slavery/Shaw metaphor.

I first learned of the book from a reference of a strong anti-abortion opinion in What Roe v. Wade Should Have Said ... and abortion opponents do raise the slavery precedent as a compelling warning. The comparison does not quite work to the degree desired, perhaps, because Roe v. Wade took much "play" out of the joints, while decades of slavery jurisprudence gave judges much more discretion. The Supreme Court itself did not firmly speak of the earlier federal Fugitive Slave Act until the early 1840s, the later one in the late 1850s -- both in dubious, conclusionary decisions. Even then, not only did a few state judges want to resist, but there was no need for the force of rhetoric even respecting appeals to juries. After all, juror flexibility (with shades of nullification) was only firmly restrained in the late 1800s.

The "compulsion" of all actors in our government system shows up in any number of cases, some fundamental enough that comparisons to the slave crisis are apt. Abortion is a suitable reference point here, though the author (a big fan of Cover) of the aforementioned citation was not aware of Cover's view on abortion. [I tried a Google search to determine Cover's views and unfortunately was also unable find out. The balance of the evidence suggests he is pro-choice, surely respecting legal abortion* ... taking his general liberal views.]

But, so is the death penalty and questions of war/peace. Surely, on the third anniversary of a needless and criminal war. A war "compelled" by assumed weapons of which many at the time voiced clear doubt. No matter the lie angrily and/or self-righteously insisted by enablers. A war carried forth by a President** who acts like a tyrant, and a fairly incompetent one, which helps to explain his unpopularity. No matter how many try to cloud it ... making the DEMOCRATS the party that needs to defend themselves.

This does not make my line overall correct. It just makes the other side's claims of obviousness so much dross, useful means to defend the status quo as if there is no other way -- even for those quite uncomfortable with the situation. We need not like Captain Vere commands us "sign sad assent." All too many, even those with good hearts do just that.


* On this point, I had a discussion that led to mixed feelings. She is personally against abortion, but deeply feels that abortion should be up to the woman. In fact, she was shocked that the state can selectively fund childbirth, even in cases of rape and special circumstance. [NY by court analysis of its state constitution is an exception.] But, she is the sort to vote for the people who put such laws on the books. The overall effect of such a vote is blocked out because of other concerns, including a felt belief Democrats care too much about certain groups etc. In other words, the heart and head silently debate, the less rational winning out. The results are sadly apparent.

** I surely know that "We the People" ultimately are to blame here -- we have popular sovereignty in this country. But, two provisos. First, in actuality, we delegate a lot of that power, so some real blame really needs to apply to our leaders. After all, we live in a republic -- we have agents and their responsibility is also clear. Two, ultimately, in certain spheres in particular the buck stops somewhere. And, in foreign policy and war, the President is said stop at this point in our history.

Oh, we also have the Declaration of Independence. This is surely a rhetorical device, not to be taken totally literally (or seriously), but I do not find it too troubling to pattern myself after that writer. And, George III, not the Parliament, was the tyrant. The President in our system is also the "head of state," the representative of the nation as a whole. So, blame on his personally comes with the territory.