March 4, 2011

A Volokh conspirator has been appalled

Wise counsel Lester Pines fails the "laugh test," sez law prof

This is not an unreasonable interpretation. Prof. Jim Lindgren argues that in the Wisconsin constitution's Article IV, Section 15, "all cases" means only "all civil cases" and then later in his analysis, "all cases" means only "all court cases." But that isn't what the constitution says.

What Prof. Lindgren is asserting, in essence, is that the absenteeism of the 14 Democratic Senators is not a "case" at all, and therefore falls outside the "all cases" universe, because the absenteeism is purely a matter within the legislative and not the judicial purview: the constitution doesn't mean what it says. Rather, it says what it meant 241 years ago, when one might be arrested for a civil offense.

Moreover, if "arrest" means only "civil arrest," then somebody needs to explain why the drafters of Art. IV, Sec. 15 separated "arrest" from "civil process" — in two distinct clauses divided by a semicolon and the word "nor" — if the arrest in question is itself a component or function of civil process. Prof. Lindgren has not so explained.

For his historical perspective, Prof. Lindgren relies primarily ("There it is," he exults) on a citation to a Lord Mansfield, anno 1770, which he discovered in a 1908 U.S. Supreme Court case called Williamson v. United States. But the immediately subsequent text in Williamson, upon which Prof. Lindgren studiously does not rely, reads:
Blackstone, in 1765, discussing the subject of the privileges of Parliament, says [citation omitted]:
"Neither can any member of either house be arrested and taken into custody, unless for some indictable offense, without a breach of the privilege of Parliament."
Which is essentially what the Wisconsin constitution says (as do the Wisconsin statutes: see below). So if Prof. Lindgren wishes to rely on the historical antecedents recorded in Williamson v. United States, I should expect that he needs to point at which State or federal "indictable offense" the 14 Democratic Senators have committed.

Because as far as I can tell, there has been none.

Furthermore Prof. Lindgren might be making some serious trouble for himself if he wishes to argue that the alleged offenses for which the 14 Democrats are being pursued are indictable ones, because then he would be turning this episode into precisely the sort of "case" that he claims the Wisconsin constitution does not contemplate.

Concludes Prof. Lindgren, in the form of a quasi-conjunction:
The privilege to compel attendance is just as much a legislative privilege as the privilege not to be arrested in court cases.
"Court cases," however, is Prof. Lindgren's insertion of constitutional language that doesn't exist, based on selecting from two apparently dueling 18th-century British aristocrats. Until Lords Mansfield's and Blackstone's variance is reconciled, Mansfield's alone is unavailing.

Thus reversing Prof. Lindgren's conjunction, we have: "The privilege not to be arrested in cases* is just as much a legislative privilege as the privilege to compel attendance." Quite so. Which is where we began, with the Senate's privilege to compel abutting the Senators' privilege not to be arrested and, with the greatest respect to Prof. Lindgren's appalled state and his laugh tests, he doesn't appear to have solved the problem — if indeed there exists a problem at all.

The plain language demonstrates otherwise.

* "[A]ll cases, except treason, felony and breach of the peace; ... "

P.S. The Volokhians are not always right, you know.


Unknown said...

thanks Illy T, now my head hurts. why are the ramblings of obscure historical figures of such great import in how we decide to organize our society in the 21st century? can't we make our own rules that make sense in our own context?

illusory tenant said...

Damnable words, eh?

Anonymous said...

Professor where? North Waukesha Community College for the Criminally Insane?