March 5, 2011

More Blackstone for the 14 Senate Democrats

Senate Resolution 1 (.pdf; 3 pgs.):
Resolved, That ... the majority leader shall immediately issue an order to the sergeant at arms that he take any and all necessary steps, with or without force, and with or without the assistance of law enforcement officers, by warrant or other legal process, as he may deem necessary in order to bring [each] senator to the senate chambers . . .
Which the majority leader then proceeded to do.

The venerable William Blackstone, whose wisdom was earlier prevailed upon to justify Sen. Fitzgerald's allegedly boundless authority to compel the attendance of the 14 Senate Democrats:
[F]reedom of speech is particularly demanded of the king in person, by the speaker of the house of commons, at the opening of every new parliament. So likewise are the other privileges, of person, servants, lands and goods, which are immunities as antient as Edward the confessor . . .

This includes not only privilege from illegal violence, but also from legal arrests, and seisures by process from the courts of law.* To assault by violence a member of either house ... is a high contempt of parliament, and there punished with the utmost severity.
Emphasis added. Assault has a fairly straightforward meaning:
The threat or use of force on another that causes that person to have a reasonable apprehension of imminent or harmful contact; the act of putting another person in reasonable fear or apprehension of an immediate battery by means of an act amounting to an attempt or threat to commit a battery.
The enforcement of Sen. Fitzgerald's ersatz "arrest warrants," by their very terms, might easily satisfy any or all of those elements of assault. Arguably, Fitzgerald's "warrants" already have satisfied them, containing as they do threats of force causing the named Senators reasonable apprehension of harmful contact (in particular District 24 Sen. Julie Lassa, who is six months pregnant).

Yet there are those who insist — ironically, by appeals to Blackstone and his even more ancient predecessors — not only that Sen. Fitzgerald's legislative powers are completely unrestrained by the constitution's absolute prohibition against the arrest of legislators, completely unrestrained by the State statute that expressly denies Fitzgerald and his Republican colleagues the power to make a finding of contempt against the 14 Senators (a finding that allegedly justifies the prohibited arrests), but that they are unrestrained by anything:
any and all ... with or without ... with or without ... as he may deem necessary ...
If I were one of the more physically vigorous of the 14 Democrats — Sen. Chris Larson, perhaps, although I bet Sen. Lena Taylor could put up a pretty good fight — I might consider resisting arrest to the extent a Blackstonian assault by Fitzgerald's agents was inevitable.

Fitzgerald's own imprisonment might conceivably ensue, by authority of a statute passed by the very body over which he now presides.

* Note once again the distinction between arrests and civil process.

P.S. Speaking of irony, according to Prof. Lindgren's line of reasoning — which raises a whole helluva lot more questions than it answers — not only might the 14 Democrats not avail themselves of the constitutional privilege against arrest, but neither could Fitzgerald for procuring their arrest. And according to statute, Fitz would face much more severe penalties than simply being "compelled" to return to Madison. It's one of those careful-what-you-wish-fors, apparently.

1 comment:

Anonymous said...

Message to Gov Walker:

Honor all Mothers and Fathers that it may be well with thee and that thou may live long in the Gov mansion.