Sunday, June 7, 2020

"The Past Is Never Dead. It's Not Even Past "

One of the highlights of my prior life as a disciplinary counsel was the opportunity to argue In re Abrams before the en banc District of Columbia Court of Appeals. 

At issue was the court's power to sanction a convicted but pardoned member of its Bar.  

The 5-4 decision authored by the late (and beloved) Associate Justice Frank Schwelb held that the pardon did not preclude professional discipline.

The Supreme Court denied certiorari without a dissenting vote. 

My preparation led me to an 1866 United States Supreme Court decision concerning the impact of a pardon bestowed on a member of the Confederate Congress by President Andrew Johnson. 

Ex parte Garland essentially restored the pardon beneficiary to full public life, including continuing membership in the Supreme Court Bar. 

Augustus Garland went on to become the Attorney General of the United States in the Grover Cleveland administration.

Garland was also a 5-4 decision. 

The single most useful source to me in understanding Garland (and the related case of Cummings v. Missouri) was Chief Justice Rehnquist's book. 

The present state of the country brings to mind the dissent of Justice Samuel Miller. 

I dissent from the opinions of the court just announced.

It may be hoped that the exceptional circumstances which give present importance to these cases will soon pass away, and that those who make the laws, both state and national, will find in the conduct of the persons affected by the legislation just declared to be void sufficient reason to repeal, or essentially modify it.

For the speedy return of that better spirit which shall leave us no cause for such laws all good men look with anxiety and with a hope, I trust, not altogether unfounded.

But the question involved, relating, as it does, to the right of the legislatures of the nation and of the state to exclude from offices and places of high public trust, the administration of whose functions are essential to the very existence of the government, those among its own citizens who have been engaged in a recent effort to destroy that government by force can never cease to be one of profound interest.

It is at all times the exercise of an extremely delicate power for this court of declare that the Congress of the nation, or the legislative body of a State, has assumed an authority not belonging to it, and, by violating the Constitution, has rendered void its attempt at legislation. In the case of an act of Congress, which expresses the sense of the members of a coordinate department of the government, as much bound by their oath of office as we are to respect that Constitution, and whose duty it is, as much as it is ours, to be careful that no statute is passed in violation of it, the incompatibility of the act with the Constitution should be so clear as to leave little reason for doubt before we pronounce it to be invalid.

Unable to see this incompatibility either in the act of Congress or in the provision of the constitution of Missouri upon which this court has just passed, but entertaining a strong conviction that both were within the competency of the bodies which enacted them, it seems to me an occasion which demands that my dissent from the judgment of the court, and the reasons for that dissent, should be placed on its records.

Justice Miller's prediction as to the "profound interest" in how history would regard Confederates was prescient.

Here we are 150 years later.

Note: I was unaware of litigation over the Faulkner quote in the title but learned that his estate had sued Woody Allen over its use in the movie Midnight in Paris.

The Jackson Clarion Ledger reported on the case and its aftermath.

Shooting has begun in Mississippi on a new documentary about legendary author William Faulkner — the first ever authorized by his estate.

It’s a documentary that might not have happened if Faulkner’s estate hadn’t decided to sue, alleging filmmaker Woody Allen had infringed on the author’s copyright.

In his 2011 movie “Midnight in Paris,” a writer played by Owen Wilson winds up being transported back to 1920s Paris, where he visits with F. Scott Fitzgerald and other literary greats.

When Wilson returns, he remarks to his fiancée, “The past is not dead! Actually, it’s not even past. You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party.”

Faulkner’s line appeared in his 1951 novel, “Requiem for a Nun.” (“The past is never dead. It’s not even past.”)

Perhaps no words are more relevant today than those in the Second Inaugural Address, in my opinion the greatest and most significant public address in American history

"Woe unto the world because of offences! for it must needs be that offences come; but woe to that man by whom the offence cometh!" If we shall suppose that American Slavery is one of those offences which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South, this terrible war, as the woe due to those by whom the offence came, shall we discern therein any departure from those divine attributes which the believers in a Living God always ascribe to Him? Fondly do we hope -- fervently do we pray -- that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue, until all the wealth piled by the bond-man's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said "the judgments of the Lord, are true and righteous altogether"

(Mike Frisch)

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