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Sorry
for emailing a blank in error.
Thank
you, Tim, and to Malla for pointing out that 'unconscionability' is so narrowly
understood in contract law, which is where I first recall the term used in a
legal context, from a very long time ago. I hadn't realized
that.
The
essence of 'unconscionability,' as I imagined the word to mean, is expressed in
two places (at least). The first that I have in mind is by Cardozo in
Palko where he finds certain immunities contained in the Bill of Rights to be
"implicit in the concept of ordered liberty" and thus selectively incorporatable
against the states via the Fourteenth. He asks whether the right being
asserted is "of the very essence of ordered liberty." Finally, Cardozo
asks whether Palko's legal predicament (twice being put in jeopardy of his life,
under two sovereigns, where the second succeeds in taking it upon retrial)
violates those "fundamental principles of liberty and justice which lie at the
base of all our civil and political institutions." (He thought not in
Palko, alas.)
The
second is Frankfurter's statement in Adamson, where he tries to define which
values (of the Bill of Rights, criminal procedure division) are of sufficient
importance to be allowed selective incorporation. He asks whether they
"commend themselves to the individual justices as indispensable to the dignity
and happiness of a free man" but says that's too subjective for him and then
says, "In the history of thought "natural law" has a much longer and much
better founded meaning and justification than such subjective selection of the
first eight Amendments for incorporation into the Fourteenth. If all that
is meant is that due process contains within itself certain minimal standards
which are 'of the very essence of a scheme of ordered liberty [citing Palko]
then we have merely arrived at the insight which our predecessors long ago
expressed." His famous solution is to ask "whether they offend those
canons of decency and fairness which express the notions of justice of
English-speaking peoples even toward those charged with the most heinous of
offenses." God help us, depending on just the English-speaking
peoples.
To sum
up, whatever got me started on this circular path seems to have brought me back
full circle. It seems I meant 'unscionable' to mean unjust or unfair,
sufficiently to require a legal remedy. I might just as well have used the
word "justice," as in 'system of,' instead. Legal reasoning, I've read (in
a book on appellate brief writing, author forgotten, sorry to say) is
essentially circular, and I think I've just demonstrated it.
A
useful exercise, to me at least, and I thank you for your
contributions.
Bob
Sheridan
-----Original Message-----
From:
Discussion list for con law professors [mailto:[EMAIL PROTECTED]
On Behalf Of Malla Pollack
Sent: Wednesday, August 20, 2003
8:24 AM
To: [EMAIL PROTECTED]
Subject: Re:
INSUBORDINATION, UNCONSCIONABILITY
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
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