20 February 2009

Suffer the trespassers

"[P]rophecies of what the courts will do...and nothing more pretentious, are what I mean by the law." ~ Oliver Wendell Holmes

There must be a civil right to trespass. How else to explain a thirty-two million dollar lawsuit, by 16 Mexican nationals, in which the defendant, Roger Barnett, is said to have violated their civil rights?

They trespassed on his land, known by federal and county law enforcement authorities as "the avenue of choice" for immigrants seeking to enter the United States illegally. He stopped them at gunpoint. Now, they sue him for $32 million dollars.

You have to love the way some people attempt to subvert the law to their purposes. One of the counts alleges that the Barnett conspired, in violation of 42 U.S.C. §1985(3), to deprive Plaintiffs of their right to interstate travel. (See Defendant's Motion for Summary Judgment , p. 2.) Note the logic: the right to interstate travel implies the right to trespass on private property. Want to go from Texas to Kentucky? Forget the highways; hop in a four-wheeler and drive in a straight line. And if any property owner objects, just assert your right to interstate travel. Beautiful. Reminds me of that line from Beverly Hills Cop: "What's the charge for getting hit by a car? Jay-walking?"

Barnett's attorney presented a strange argument against this charge:

[I]llegal aliens have no constitutional right to interstate travel. It would seem counterintuitive to maintain that an illegal alien, who is subject to arrest and removal by the government at any time (as indeed Plaintiffs were removed), and whose interstate transportation is a felony, 8 U.S.C. §1324(a)(1)(A)(ii), possesses a constitutional right to travel within the United States; at the very least, this would be a strange species of “constitutional right.” (Defendant's Motion , p. 7, emphasis mine.
No kidding. You don't have a right to be here in the first place. Indeed, your being here (as a consequence of an illegal border-crossing) is a violation of federal law. So, you have no right to interstate travel. That's deep.

In his essay, "The Path of the Law", Justice Holmes wrote, "The primary rights and duties with which jurisprudence busies itself...are nothing but prophecies.... [A] legal duty...is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court."

In case Justice Holmes's style is a bit difficult to grasp, whenever someone says, "You have a legal duty to perform some act R," what he really means is, "I predict that if you do not perform R the court will make you suffer in some way," (e.g., by throwing your butt into jail). "You have a duty" is, therefore, nothing but a threat of force.

Conversely, a legal right is nothing but a prediction that if a man does or omits certain things he will not be made to suffer in this or that way by judgment of the court. It's getting more and more difficult to know what our rights are, not because we can't read the Constitution (that's easy enough, which is why so many people don't like it), but because we can increasingly not predict those things for which a court may make us suffer.

And that's limiting ourselves to what courts decide. Juries are entirely unpredictable. A woman sues McDonald's because the hot coffee she spilled on herself was, well, hot. And the jury awards her damages. (You can read an interesting 2004 legal discussion of this case, here.)

I suspect Barnett's in trouble and will probably have to sell his ranch to pay the damages.


About Me

James Frank SolĂ­s
Former soldier (USA). Graduate-level educated. Married 26 years. Texas ex-patriate. Ruling elder in the Presbyterian Church in America.
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