Newsgroups: bit.listserv.words-l
Date:         Fri, 11 Dec 1992 21:46:19 EST
From:         Entropy Warrior <AUSBROOK@UCS.INDIANA.EDU>
Subject:      Re: Common law

To take the last first

>1. "English common law has no bearing on any U.S. practice, except that of the
>historian."
>
>2. I said, btw, English common law is just not the law here, anywhere.
>Influence? *Of course* there's <influence>."

It doesn't.  Get up and argue English common law in a court here and you will
get laughed out of the place.  It's *not* the law anymore than serpent means
crawling thing.  And I'll say it again, this all started out with a discussion
of written versus unwritten law.  English Common law, even *accepting* your
continuing willful misreading, *is* written.  It's not in statute books; it's in
opinions of the Holy Law Lords and others.

>Ausbrook, I grovel before your superior wisdom.  I am but a clueless mass
>feeding on the cast-off scraps of your intellectual plate--and one
>lamentably prone to willful distortions of the most egregious sort.

I don't know where this attitude comes from.  I meant clueless masses ironically
but you continue to justify it literally.  This *is* my last post on this
subject since you have not managed to simply state the conclusion that you would
like to confirm.  I thought it might be entertaining for all to talk about this
stuff.  I suggest you and Monty go private and discuss the unwritten roots of
the English common law crime of sodomy and its bearing on American law.

>Of course, I should have realized that the collective opionions of the clerks
>is of greater import than the opinion of Justice Blackmun in Roe v. Wade!
>Forgive me my lack of understanding.

Depends what you mean by importance.  The holding of the case *is* important.
Blackmun was one vote of seven, I believe.  So even how he voted in Roe was much
less important than how he voted in Casey last summer.

The reasoning of his opinion is not important, has not been used elsewhere, and
is in fact unusable.  It makes no sense on its own terms and runs right up to
the fence of saying that a fetus is not a person and turns around.  (Couldn't
get the votes for that.  *That* would have been important.)  He can't make up
his mind between viability and the three month regime, really, reducing it to a
"compelling point," whatever that means.

His major discussion of common law pits Stoics, Jews and Protesants, believing
that life begins at birth, against the common law finding "greater significance
in quickening."  Then, of course, there are the Catholics, believing that life
begins at conception.  He goes on to tort law to see how it treats fetuses.  Not
really helpful.  The point of it all, he says, is that Texas may not impose a
single view of life on folks.  Well, why not?  He *doesn't* say why Texas may
say what murder of a live human being is but not proscribe abortion.  He doesn't
say why, where, or how the Constitution makes the distinction.  The where of it
*could* be any of a number of places, he says, but wherever it is, Texas simply
may not say abortions are criminally punishable.  Gee, what a jurisprudential
wizard.

> As well, I should have realized that
>the cases citing Griswold in the years since are but judicial dust in the
>wind, but a mote in your eye.  I cast them aside.

Golberg's opinion in Griswold was a concurrence.  Citations to Griswold are
rarely to Goldberg's Ninth Amendment--Blackmun *does* mention it in Roe,
suggesting that the Ninth Amendment *might* be a source of the so-called right
to privacy--but of course Blackmun's not saying--"Let's just call it substantive
due process and get on with the trimester regime."

But again, the holding of Griswold is *very* important.  Goldberg's opinion, for
the time being, is not.  There has *never* been a majority opinion of the
Supreme Court relying on the Ninth Amendment.

>Could you supply me a
>list of acceptable justices, those whose opinions we can trust?

It's not a question of trust.  It's a question of which arguments fly, almost as
a matter of legal realpolitik.  I also never said or implied that Blackmun or
Goldberg were in any sense unacceptable.  Blackmun's opinion in Roe *is*
laughable, and therefore regrettable, because the case [was] so important.  His
concurrence in Casey was at least majestic, and his vote indispensible.

Goldberg's opinion is laughable in a different, even more unfortunate way.  It
is a *good* opinion.  I *like* the Ninth Amendment as a vehicle to keep Behemoth
(read government) in whatever form at bay.  That is even what the folks who
wrote the amendment had in mind, although I am not a Borkian originalist.  There
have never been enough Justices--*never*--to bring the amendment to life.
Goldberg's opinion is only laughable in the sense that it is not usable as
authority for anything.  I guess one might use it to show that at least *some*
Justice had thought of it before.  But it won't (probably) be very persuasive.

Let me put it another way: if you've got fifty pages to make your argument, if
you have a page at the end for a Hail Mary, you might squeeze in a paragraph on
the Ninth Amendment.  That's just the way it is.  And I never said that's how it
ought to be.

I think you have mistaken disdain for Blackmun's opinion in Roe--and I meant
that *even* the law clerks at the S.Ct. thought it over the top--for disdain of
Blackmun.  Actually, I just think he had a *very* bad day at the writing desk
when he needed to have a *very* good one.

>One wonders, for example, whether Learned Hand woul meet your rigorous
>standards?

My standards aren't rigorous at all--it's enough if a judge can tell a good
story and make sense out of it in words that are <interesting>.  Hand had some
very bad days at the writing desk too.  But he also had some very good ones, for
which he is remembered.  And he will be remembered, I think, not for what he
decided, but for what he said.  If history is kind to Blackmun, he will be
remembered for what he decided in Roe and not for what he said.  If it is
unkind, he will be remembered for what he said and for the fact that he didn't
decide anything.

Get a life, marty, drop the attitude, and I <promise> you'll be <happier>.

And so will we all

-K

-Mka
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