Blawg Review #233
Welcome to Blawg Review 233.
Everybody understands Mickey Mouse. Few understand Hermann Hesse. Hardly anyone understands Albert Einstein. And nobody understands Emperor Norton.
– Malaclypse the Younger.
Today marks the 150th anniversary of one of the greatest political and legal declarations in American history: the October 12, 1859 decree by Joshua Norton I, Emperor of the United States of America and Protector of Mexico. If we ran the schools, every schoolchild would be required to memorize the words of the only monarch ever to preside over the United States:
It is represented to us that the universal suffrage, as now existing through the Union, is abused; that fraud and corruption prevent a fair and proper expression of the public voice; that open violation of the laws are constantly occurring, caused by mobs, parties, factions and undue influence of political sects; that the citizen has not that protection of person and property which he is entitled to by paying his pro rata of the expense of Government–in consequence of which, WE do hereby abolish Congress, and it is therefore abolished; and WE order and desire the representatives of all parties interested to appear at the Musical Hall of this city on the first of February next, and then and there take the most effective steps to remedy the evil complained of.
The evil that Emperor Norton abolished, of course, was the Congress of the United States of America.
Opinions vary on just who Joshua Norton, or Norton I, was. He may have been insane. He may have been a taoist saint. For those who've never heard of the man, we should offer some background on man and monarch Joshua Norton, Emperor of the United States and Protector of Mexico.
Born in England in 1819, Joshua Norton emigrated to the United States in 1849, settling in San Francisco during the California gold rush to begin a career as a merchant. Norton lived his first years in this country as a typical tradesman, until an unfortunate reverse caused by speculation in the Peruvian rice market wiped out his fortune. After a sojourn in the wilderness, Joshua Norton returned to San Francisco and on September 17 1859 declared himself Norton I, Emperor of the United States. Though some considered the "Emperor" insane, the majority of his fellow citizens observed and respected Norton's title. Norton I printed his own currency, which passed as legal tender in the stores of San Francisco, received petitions from grateful subjects, and issued many, many decrees, which were observed to greater or lesser extents.
Norton never put on airs or ruled for self-aggrandizement. To the extent his subjects respected his orders, they did so because it amused them to do so, or (as will be explained below) because they were moral and made sense. In short, Norton was that rarest of creatures: a sovereign who truly ruled with the consent of the governed. Or perhaps he didn't rule at all. Perhaps he was a madman. Either way, Norton represents a vision in stark contrast with the dominant paradigm of western civic thought. Like Lysander Spooner, like Joe Hill, Norton today is revered by anarchists, libertarians, discordians, and other fringe types.
But where Spooner and Hill were crushed by the larger society against which they railed, Norton thrived. He was treated with respect. Norton's "edicts" were obeyed by his "subjects," either to humor the madman or out of recognition of his moral (if not legal) force. He was allowed to circulate his own currency, which passed as real money in San Francisco, where a conventional anarchist doing so would have been locked up. In a surreal sense, Norton spent the latter half of his life reigning as an actual emperor — an emperor by consensus. It was a consensus of love, not of force. The current government of the United States rules by a sort of consensus, and relies in part upon patriotism (itself an expression of love), but also relies heavily upon fear: the fear of taxes, fines, the policeman, and jail.
Contrast Norton's career with those of his rival claimants: James Buchanan and later Abraham Lincoln and Jefferson Davis. It's fair to say that none of those worthies commanded respect or consent, as was proven when they drove the United States into a bloody civil war, even refusing Joshua Norton's efforts to mediate the dispute. We believe that America has strayed from the Emperor's wisdom. Where moderates and mollycoddlers call for redressing corruption with a new constitutional convention, we choose to commemorate this truest of American visionaries on the anniversary of his most significant edict, with a call to abolish Congress once more and a round-up of blog posts on law and politics in a world that has betrayed Emperor Norton's legacy of good government.
Universal Suffrage Is Abused.
Scholars record that shortly after Norton's ascension to the throne of the United States, the imperial capital of San Francisco was wracked by spasms of violence against Chinese immigrants. A lynch mob formed for the purpose of attacking the Chinatown portion of the city. Emperor Norton did not share his subjects' prejudices. But where another, lesser ruler in Norton's day might have ignored the problem, or responded to violence with violence by sending in troops, Norton, at considerable personal risk, employed the weapon of a true sovereign: Love. Norton confronted the mob as it was about to enter Chinatown, and stood before it, reciting the Lord's Prayer. Awed and shamed by His Imperial Majesty's courage and wisdom, the mob dispersed, with not a shot fired or a fist raised in anger.
By uttering the Lord's Prayer in the exercise of his official duties, the Emperor necessarily mixed church and state. Today not everyone is comfortable with that mixture. Take, for example, last week's oral arguments before the Supreme Court in Salazar v. Buono, concerning a memorial cross on a patch of formerly federal land in a national park. The Transplanted Lawyer at Not a Potted Plant had thoughts about oral argument in the case, as did Scott Greenfield at Simple Justice — who contrasted the issues raised in that case with the question of whether it is a violation of a defendant's rights when a prosecutor wears a small cross necklace during a trial. Marc Randazza calls for a little perspective. And John Kindley had a rather blunt, but honest, appraisal of Justice Scalia's performance in particular.
Norton calmed the mob by example, not by threat. Contrast his example with that of New York's Metropolitan Transportation Authority, which issued a takedown notice to a t-shirt producer who used subway symbols to lampoon the MTA's poor service. Obvious parody of trademarks is protected as "fair use" and under the First Amendment, unless one is a person of average means looking at the oncoming lights of a lawsuit from a government and its army of lawyers. Of course, the sort of government whose Fish & Wildlife Service has its own SWAT team may need plenty of lawyers to go along with all those cops and guns.
Fraud And Corruption Prevent A Fair And Proper Expression Of The Public Voice.
The people of San Francisco, Norton's imperial capital, loved their Emperor and gave him the treatment that, as their sovereign, he deserved. Norton ate in restaurants as the owners' guest. Norton had free use of the city's livery stables and rails for transportation of the imperial train. San Francisco merchants competed for his imperial favor and approval. Citizens of the grateful city provided a yearly allowance for their Emperor's regalia. Joshua Norton even issued imperial bonds, collected taxes from the people, and printed his own money (payable "by the agents of our Private Estate, in case the Government of Norton the First does not hold firm"), with the assistance of San Francisco printers. Unlike any other government which can be named, America's first Emperor never suffered a rebellion in his own territory.
Contrast Emperor Norton's example with those of governments prevailing in the United States and around the world today, where justice isn't just blind but gagged, or issues from the barrel of a slot machine, or simply follows the money.
Justice Antonin Scalia of the United States Supreme Court questions whether lawyers, of which the United States has no shortage, provide more social utility than scientists, engineers, and inventors. We would respond, as might Emperor Norton, that a nation which has a superabundance of laws requires a superabundance of lawyers. All the more reason to abolish Congress, the leading source of laws. We would also observe that Justice Scalia, evidently no mathematical genius, earned his baccalaureate in history and went on to teach law. If you're either part of the solution or part of the problem, you Justice Scalia, may be part of the problem.
Another part of the problem may be that people involved with the law claim to be what they are not. Norton I indisputably has the best historical claim to Imperium over the United States. Americans respected his title. On the other hand, others grant themselves dubious titles, such as "trial lawyer," which they haven't earned. Scott Greenfield is skeptical of some who wear that title. CrimLaw's response is pragmatic, and Robert Ambrogi urges lawyers to call a spade a spade. In law as in government, deeds are sometimes more important than words.
Emperor Norton lived in a time when liberties often required vindication at gunpoint. We, by contrast, are privileged to live in a time when liberties can often (though not always) be secured through the rule of law. The Foundation for Individual Rights in Education, or FIRE, has a blog that documents its increasingly impressive string of courtroom successes defending the freedoms of speech, faith, and conscience on America's college campuses, including a recent victory in Los Angeles over a vague and overbroad speech code. FIRE also achieves results through persuading officials to do the right thing, which would have gladdened the Emperor's peace-loving heart.
While talk is better than war, civil litigation is not necessarily fair, and not necessarily free of coercion — it's simply a different type of coercion than one finds at the point of a gun. When he offered to mediate between the states, Emperor Norton observed that merely fighting the tragic struggle between North and South was horrifically costly, even to the victor. Litigation is no different. That's why litigants — and even lawyers as litigants — are sometimes inclined to cave in the face of meritless claims. Too often meritless claims are used to censor speech, as in the recent case of Adaptive Marketing's crusade to expose the identity of a critical anonymous blogger, as discussed at Public Citizen's blog Consumer Law & Policy. In another context, Brian Tannenbaum discusses the trend in the context of clients demanding fee refunds from attorneys. Is the answer a reconsideration of the "American rule" in favor of a loser-pays model? We've made small steps in that direction by, for instance, adopting anti-SLAPP statutes to protect freedom of expression — but alas, unlike Emperor Norton's subjects, not all anti-SLAPP statutes are created equal. And finally, however well-crafted the rules, let us remember that civil litigation — even litigation over mice and bears of little brain, and similar nonsensical matters – can consume decades and millions of dollars.
Open Violation Of The Laws Are Constantly Occurring.
In 1862, Norton I assumed the office of Protector of Mexico, and began to rule that nation with the same loving hand enjoyed by the people of the United States. Sadly, the people of that unhappy country later rejected their sovereign's claims, electing a pretender emperor by the name of Maximilian. Rather than reconquer his lawful domain in Mexico by force, Norton abdicated, observing "It is impossible to protect such an unsettled nation." Nonetheless, Norton's words and deeds resonate abroad to this day, as evidenced by the words of bloggers around the world.
It is unlikely that the Emperor would call our friends to the north "unsettled" — unless, of course, he happened to review the extent to which Canada's leaders have failed to protect freedom of expression. Here at Popehat we've blogged frequently about Canada's appalling Human Rights Councils, which permit bureaucratic persecution of disfavored speech ranging from loathsome to petty. This week Canadian blogger Ezra Levant, an implacable foe of Canada's Human Rights Council censorship regime, testified before Parliament alongside Mark Steyn, and blogged about the experience. And across the pond, Charon QC is troubled by recent technological innovations in the British criminal justice system, while Geeklawyer notes one of the most ridiculous examples of government panicmongering we've seen this year. Across a larger pond, China Law Blog wonders whether American lawyers and clients are working under a misunderstanding: just because the vice president of marketing speaks Chinese, that doesn't make him an expert in Chinese law.
Mobs, Parties, Factions And Undue Influence Of Political Sects.
Norton's reign as Emperor of the United States was marred by the outbreak of conflict within his domain beginning in 1861, when Northern and Southern states elected puppet Presidents named Lincoln and Davis, whose careers are otherwise obscure. Unfortunately for America, each of these interlopers refused their Emperor's offer of mediation and settlement of their obscure dispute, continuing their illegal war and bringing only tragedy. Enlightened Americans today, like Norton I, recognize that civil law is the bedrock of a civil society.
Emperor Norton's legitimacy (and the faith of the people of San Francisco therein) was supported by his unshakable belief that his Imperium was legitimate. Improbable propositions require improbable levels of self-confidence. We've seen such inexorable faith this week in the saga of the quixotic Orly Taitz, who not only believes that Barack Obama was born in Kenya, but believes that she has legally cognizable proof of it. As Doug Mataconis of Below the Beltway documents, Attorney Taitz argued that the presence of a man who resembles Eric Holder in a Starbucks near a courthouse means that the Obama Administration is improperly influencing the judiciary. O rly? Though clearly as eccentric as Norton I, Ms. Taitz perhaps does not enjoy the level of high regard earned by the Emperor.
Whether Joshua Norton was a madman, a prophet, or the only legitimate sovereign in American history, the authority he commanded grew from his behavior, which gave rise to moral authority. One man's insanity is another man's wisdom. Norton embodied Lao Tzu's model for a Chinese emperor: When great rulers achieve their purpose, their subjects claim the achievement as their own. We're certain that Emperor Norton would not have approved of the way Police Chief Edward Locke exercises sovereignty over Bella Villa Missouri, and we're pretty sure Norton would have abolished the Eighth Circuit Court of Appeals for giving Locke a pass under 42 U.S.C. 1983.
Of course litigation, while preferable to gunplay, isn't the answer to every wrong. We think Norton would have appreciated Santa Clara law professor Eric Goldman's non-litigious approach to dealing with a legal spammer: naming and shaming. We're happy to add our page rank to his effort.
Emperor Norton's message was one of engagement, promoting harmony. But are the goals of engagement and harmony consistent with the American ideal of individual liberty? That question was in the air last week as the Obama Administration worked hand in hand with Egypt to break a deadlock in the U.N. Human Rights Council over a controversial resolution about freedom of religion and freedom of expression. Similar resolutions have been kicking around the U.N. for a long time to the dismay of American civil libertarians, who view the concept of "defamation of religion" with great suspicion. Eugene Volokh has some concerns about the revised resolution brokered by the United Sates and Egypt, and Kenneth Anderson questions whether "engaging" on civil liberties necessarily compromises them. Meanwhile Jonathan Turley is appalled by the bargain and what it foreshadows for international attitudes towards free speech, and Index on Censorship is suspicious.
The Citizen Has Not That Protection Of Person And Property Which He Is Entitled.
Joshua Norton made the rounds of his capital, San Francisco, hearing the petitions of his subjects and dispensing wisdom and justice. Norton also made a number of decrees for the betterment of the city, including an order that the citizens should build a bridge spanning San Francisco Bay, to allow easier travel to the hinterlands that today constitute Oakland. Sadly Norton's command was beyond the engineering capabilities of the day, but when the bridge was completed, a grateful populace honored Norton with this plaque:
Pause traveler and be grateful to Norton I. Emperor of the United States, Protector of Mexico, 1859-1880. Whose prophetic wisdom conceived and decreed the bridging of San Francisco Bay.
Where Norton acted rarely and without haste, today government meddles in seemingly everything. The blawgosphere was confounded this week by news that the Federal Trade Commission plans, beginning December 1, to extend its regulatory hand over blogs and private websites, a regime that frankly seems unneccesary and may be unconstitutional. As Ann Althouse observes, the FTC's regulations will impose more onerous requirements on bloggers than on newspapers and journalists. Walter Olson, who reviews books from time to time, may just abandon or cut back the practice if it means he has to maintain records and receipts for fear of a fine from the FTC. And Colin Samuels has devised a clever disclaimer that mitigates liability while telling the FTC exactly what he thinks of its regulations.
The FTC isn't the only government agency that treads on the First Amendment through regulation. Beck and Herrmann at Drug and Device Law describe the Kafkaesque labyrinth that drug companies must navigate to avoid running afoul of the Food and Drug Administration's regulation of "off-label" pharmaceutical advertising. Do the FDA's regulations infringe on freedom of speech? A recent lawsuit by Allergan may have implications for commercial speech far beyond the medical industry.
Though Norton could foresee the engineering wonder that would become the Golden Gate Bridge, there were many technological marvels of which he could only dream. Norton could perhaps imagine demanding that his subjects produce papers in the real world, but it is doubtful he could comprehend subpoenaing materials from the ether inhabited by difference engines, or grasp the concept of protecting "metadata" from improvident disclosure. Perhaps Norton would not want to imagine the technologically-inspired decision by the University of North Carolina Law School's moot court bench (of which one of your authors is an alumnus) to hold an appellate argument in the virtual world of Second Life. Above The Law covered the mock argument, with an emphasis on mockery. Of course, making an "oral" argument with a keyboard is far from the only legal weirdness the internet makes possible. On the other hand we believe Norton, who ruled through trust, would have approved this post from Legally Unbound on trust and the internet.
It is recorded that in the latter years of his reign Norton offered his hand in marriage to Victoria I, Queen of England and Empress of India. In this Emperor Norton received the full support of his subjects, but history records that Victoria remained a dowager widow, mourning the loss of her consort Prince Albert. Did Norton's cable reach London? Was his proposal thwarted by jealous suitors within Her Majesty's government?
Unfortunately, the records do not tell us, but we know that Joshua Norton was a firm supporter of the institutions of marriage and family. One wonders what Norton would have made of Madireddy v. Madireddy, in which a New York court ruled it could not grant a divorce because it could not determine whether the parties were validly married under Hindu law. Answering another, seemingly insoluble question, Taxgirl attempts to answer the question of why she became a lawyer, and whether a law school education is worth the trouble now, while Law and Motherhood reflects on the problem each generation of lawyers must solve, that of maintaining a practice and being a good parent — a trail already blazed by others.
We Do Hereby Abolish Congress, And It Is Therefore Abolished, To Remedy The Evil Complained Of.
Despite Norton's decree, somehow Congress has managed to reconstitute itself, in clear violation of imperial mandate. This usurper Congress, which is richly deserving of a second abolition, seems hell-bent on imposing its will on the citizen, without regard to the laws or the Constitution. Mark Draughn at Windypundit attempts a taxonomy of what he calls "bogus pseudo-crimes," one expression of Congressional overreaching. But even in the absence of an emperor to curb its abuses, good people can sometimes thwart Congress' worst instincts, as when California Representative Linda Sanchez's Megan Meier Cyberbullying Prevention Act was turned back. In the same week,the House passed the Matthew Shepard and James Byrd, Jr. Hate Crime Prevention Act, as covered by Religion Clause. Whether the act is necessary is up for debate. It seems merely to enhance penalties for existing crimes, rather than creating new crimes. After all, there isn't always an Emperor around when the lynch mobs circle Chinatown.
Lawyers and the courts can also stem legislative abuse. Douglas Berman writes on the Supreme Court's pending consideration of whether a life sentence without parole, for a minor, violates the Eighth Amendment. Grits For Breakfast tells the story of a man officials required to register as a sex offender, even though he'd never been convicted of a crime. A federal jury ruling on the man's suit against the government was not amused. At Cyb3rcrim3, Susan Brenner uses the example of the Facebook "should Obama be killed" poll to discuss cases in which lawyers and courts have prevented the government from using laws against threats to shut down legitimate dissent. Unfortunately lawmakers sometimes strike back, as Walter Reaves observes with a post on Texas Governor Rick Perry's decision to disband the Texas Forensic Commission before it could consider evidence in the highly disturbing Todd Willingham case.
Norton was persuaded to abolish Congress not only because of corruption, but because legislators had exceeded their power. Edward Fallone addresses similar ideas in a modern context, exploring the negative spaces in the Constitution. It's a serious discussion of issues that some dismiss with the sophomoric "Tenther" smear. It is such abuses, things like overbroad laws which encourage needless litigation, or overcriminalization to the point where virtually everything not forbidden is compulsory, that persuade us today that Congress must be abolished.
We'd like to thank the Editor of Blawg Review for giving us the opportunity to enlighten readers about Emperor Norton and his place in American history. We'd also like to thank Colin Samuels for advice and suggestions. Mr. Samuels' fine blawg, Infamy or Praise, joins our blogroll today. Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.
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