|
I like the concept, but the term "Unconscionable"
(sp?) is not a felicitous choice. This word has a very, very narrow
reading in contract cases.
----- Original Message -----
Sent: Tuesday, August 19, 2003 6:03
PM
Subject: Re: INSUBORDINATION,
UNCONSCIONABILITY
In
thinking about this ethical problem having constitutional implications, the
following:
We
seem to have 'cutouts' from the strict letter of the
law.
The
doctrine of conscientious objection regarding military service is one.
Resort to 'natural law' seems to be another.
The
rule of reason, i.e., that to be deemed constitutional a law must at least
meet minimum standards of reason, is another.
When
the moral interest is deemed to be higher than usual, we require a higher
level of scrutiny, i.e., intermediate and strict scrutiny.
The
constitutional question I'm sneaking up on is this. If moral issues such
as 'liberty,' 'equality,' and 'rationality,' are given legal force
by the due process and equal protection components of the 14th Amendment (and
the 5th, to hold the federal government to at least the same standards as the
states; Bolling), then why do we not see the same force given to the concept
of 'unconscionability' in express terms. I'm sure that concept underlies
these others. Perhaps that's why it is not referred to
explicitly.
How
much uncertainty would we inject into constitutional law by holding, say, or
amending the constitution, to state that 'unconscionable' laws are
unconstitutional?
I'm
not proposing the rule, I'm hoping to explore it conceptually via a discussion
among people who can see problems a mile off, unless I miss my
guess.
Thanks,
Bob
All legal
systems claim to be just. They claim, inotherwords, to get difficult
questions of public obligation right, or more right, in any case, than
individual reflection would. This requires them to hold even
conscientious dissenters responsible for violations of the law. From
the standpoint of the system, such dissenters are
overreaching.
From the standpoint of the dissenter, however,
such disobedience may often be justified, even in a generally just legal
system. Disobedience is a very effective way of expressing the
conviction that a legal system has made a mistake, and sometimes such
dissent can play an important role in public deliberation, precisely because
such dissent will be punished , and is understood to be
costly.
Of course, legal systems may also allow special
privileges for sincere but mistaken dissenters, particularly when dissenters
act for religious reasons, as when the United States offers special
exemptions from military service for those whose scruples prevent them from
taking up arms.
Tim
Sellers
09:02 PM 8/18/03 -0700, you wrote:
There
has been some activity and comment recently on how to behave in the face
of an unjust law, or a law perceived to be unjust by one, some, or many,
in a system like ours. Hence the following
question:
In a federal
system such as ours, should unconscionability regarding the rule be
allowed to justify insubordination to the
system?
Here are some
situations where the question comes up.
Last term, the USSC upholds California's draconian Three
Strikes punishment scheme.
NY
USDC Judge Martin retires stating he declines to support an unjust federal
sentencing system.
Justice
Anthony Kennedy tells the ABA and the nation that we're putting too many
people in prison for too long and it is unjust.
A Supreme Court justice states some time ago that he no
longer agrees to participate in the mechanism of death.
Brennnan?
This spring, the
Feeney Amendment, aka the PROTECT Act, as part of the Amber Alert Bill,
restricts the power of federal judges to downwardly depart from the
Sentencing Guidelines.
A-G
John Ashcroft promulgates a rule requiring federal prosecutors to report
the names of federal judges who depart downwardly from the
Guidelines.
In Roe v. Wade and
progeny, each side believes the other behaves
unconscionably.
In the slavery
and Jim Crow eras and controversies, each side, ...
ditto.
During the Nazi regime
of Hitler Germany, the Nuremburg Laws laid the legal groundwork for what
we know as the Holocaust.
U.S.
soldiers are taught they have no duty to obey an illegal order, in fact,
as I understand it, have a duty NOT to obey such an order. I do not
know the mechanism for protesting orders believed to be illegal, or what
happens when told to obey nevertheless.
I'm aware of the opportunity to resign on principle for
judges, or to recuse from hearing certain cases. In the case of the
soldier, I believe s/he may apply for status as a conscientious objector
as a ground for non-induction or discharge.
Then, of course, we have Judge Roy Moore, the Chief
Justice of the Alabama Supreme Court, who refuses to remove the Ten
Commandments from the public courthouse, despite legal
command.
Is it okay to cheer,
say, the German judge who subverts [illegally] a Nuremburg law, assuming
such a thing happened, but to condemn a Judge Moore who follows HIS
conscience (or political instincts)? On what ground does the German
judge justify his insubordination? Natural Law? Higher
Law? Supernatural Law? And Moore?
It seems to me that a realistic description of what is
in fact the case is that one takes one's chances in going against the
system, that the system controls unless and until the system changes, and
many systems, including ours, insist on the principle of
subordination.
The agitation
and protest represented by the above-mentioned individuals simply become,
then, part of the process that may or may not lead to change in the
direction desired by the protestor. Meanwhile, the system grinds on,
taking the innocent along with the guilty, at least as viewed in
hindsight, and that's the best we can devise, at least for the time
being.
Does anyone on
the list have a take on the unconscionability/insubordination question
that might lead to a more complete view of the conundrum?
I'd appreciate it if you so
indicated.
Thank you in
advance.
Bob
Sheridan
[EMAIL PROTECTED]
San Francisco Law
School
Prof. M.N.S. Sellers
Regents Professor of the University
System of Maryland
Director, Center for International and Comparative Law
University of Baltimore School of Law
1420 North Charles St.
Baltimore, Maryland 21201-5779
telephone:410-837-4532
facsimile:410-837-4396
|
