Posted on 08/07/2003 6:42:18 AM PDT by SLB
These judges have been called commie liberal judicial usurpers of power all over these threads, and there have been more than a couple of calls for there impeachment. But let's just do this - let's put out a call to see how many folks here will acknowledge that these judges were doing the job they are required to do, even if that means following binding precedent that you don't agree with. I'd love to hear Kudsman, rwfromkansas, Terrell, an amused spectator, ROCKLOBSTER, exmarine, and a handful of other folks make that acknowledgment.
Louisiana is the only state whose legal system is based on Roman civil law as opposed to British common law. Technically, it is known as "Code Napoleon" or The Napoleonic Code. It is simply the aforementioned Roman civil law in written form, in order to be applied uniformly, and understood by everyone.
From McGill (see cite below):
Louisiana was first subjected to French Edicts, Ordinances and the Custom of Paris by charters issued to companies of merchant adventurers in 1712 and 1717, which laws remained in force when the territory became a royal colony in 1731. After Louisiana's cession to Spain in 1763, French laws remained in forced until 1769, when they were officially replaced by Spanish laws and institutions,[90] including the Nueva Recopilación de Castilla (1567) and the Recopilación de Leyes de los Reinos de las Indias (a rearrangement of major legal texts up to 1680), and, in default of a specific rule in a later enactment, the Siete Partidas (a compilation of laws, based on the Justinian compilation and the doctrine of the Glossators, made under King Alfonso X in 1265 and formally enacted under King Alfonso XI in 1348). Following the territory's retrocession to France in 1800, Spanish law continued in force, because France assumed sovereignty for only twenty days in 1803 before the United States took possession of Louisiana on 20 December of that year.[91]
After the transfer to the U.S., pressure came from incoming Americans to impose the common law in Louisiana, particularly because six different compilations of Spanish laws existed and it was unclear which of over 20,000 individual laws of Spain applied in the territory. Thanks, however, to the leadership of Edward LIVINGSTON, a New York common lawyer who had become a convert to the superiority of the civil law after moving to New Orleans, and following a political crisis surrounding the matter, a two-man committee was mandated by the Louisiana legislature to prepare a compilation of the civil law applicable in the "Territory of Orleans".[92] The product was a digest,[93] known as the Louisiana Civil Code of 1808, which was approved even by Governor CLAIBORNE, who had formerly been a major advocate of the common law.
The Digest of 1808 was largely inspired by the revolutionary ideas of France, gleaned from the French Civil Code of 1804 and its preparatory works, approximately 70% of its 2,156 articles being based on those sources. The remainder of the text was derived from Spanish law and institutions, which rules were retained in the event of conflict with French-inspired provisions.[94]
Despite the Digest, confusion persisted as to which specific laws applied in Louisiana. [95] Another committee was therefore instructed by the legislature to revise the civil code and add to it any missing laws still found to be in force. The result was the Louisiana Civil Code of 1825,[96] which was modelled very closely on the French Civil Code, most of its 3,522 articles having an exact equivalent in that Code.[97] It was designed to replace all pre-existing law, although the courts refused to give it quite the sweeping effect that had been intended.[98]
The 1808 and 1825 Codes were both drafted in French and translated into English, after which they were published in both languages, both versions being official. The enabling statute of the 1808 Code[99] required consultation of both language versions in the event of ambiguity of any provision. The 1825 Code, on the other hand, was merely published in both French and English, without any provision in its enabling statute for resolving conflicts. Because the French text was the original, however, and because the translation was known to have errors, the French version came to be regarded as controlling.[100]
A third Civil Code was promulgated in 1870,[101] which changed the numbering of articles, but otherwise essentially re-enacted the 1825 Code, except for inserting amendments required to take account of the abolition of slavery after the American Civil War, as well as amendments and new laws enacted since 1825 which affected codal provisions. Although the 1870 Code was published only in English, it was the general view that the French texts of the articles of the 1825 Code which were unamended continued to be determinative in the event of ambiguity.[102] A Compiled Edition of the three Codes was published in 1938.[103]
Beginning in 1976, the Louisiana State Law Institute, now responsible for the Code, has secured the adoption by the Louisiana Legislature of various partial revisions.[104] Among the most important of these is the new Book IV on Conflict of Laws (Articles 3514-3549 c.c.) adopted in 1991.[105]
From Mixed jurisdictions : common law vs civil law (codified and uncodified) by William Tetley, Q.C. [*]
Professor of Law, McGill University, Montreal (Canada); Distinguished Visiting Professor of Maritime and Commercial Law, Tulane University (United States of America); Counsel to Langlois Gaudreau O'Connor of Montreal.
Even if they still use the civil law, when their fat gets into the federal fire, the commmon law is used, like in the Slaughterhouse Cases.
Tell it to the Ninth Circus. That being said...guess you got me on that one.
Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States. Those eight amendments are as follows: [Mr. Bingham recites the first eight amendments.]These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment. The words of that amendment, 'no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States,' are an express prohibition upon every State of the Union, which may be enforced under existing laws of Congress, and such other laws for their better enforcement as Congress may make. . . .
Is it not clear that other and different privileges and immunities than those to which a citizen of a State was entitled are secured by the provisions of the fourteenth article, that no State shall abridge the privileges and immunities of citizens of the United States, which are defined in the eight articles of amendment, and which were not limitations on the power of the States before the fourteenth amendment made them limitations?
"The first 10 amendments were proposed and adopted largely because of fear that Government might unduly interfere with prized individual liberties. The people wanted and demanded a Bill of Rights written into their Constitution.
The amendments embodying the Bill of Rights were intended to curb all branches of the Federal Government in the fields touched by the amendments-Legislative, Executive, and Judicial. The Fifth, Sixth, and Eighth Amendments were pointedly aimed at confining exercise of power by courts and judges within precise boundaries, particularly in the procedure used for the trial of criminal cases.
Past history provided strong reasons for the apprehensions which brought these procedural amendments into being and attest the wisdom of their adoption. For the fears of arbitrary court action sprang largely from the past use of courts in the imposition of criminal punishments to suppress speech, press, and religion. Hence the constitutional limitations of courts' powers were, in the view of the Founders, essential supplements to the First Amendment, which was itself designed to protect the widest scope for all people to believe and to express the most divergent political, religious, and other views.
But these limitations were not expressly imposed upon state court action.
In 1833, Barron v. Baltimore, supra, was decided by this Court. It specifically held inapplicable to the states that provision of the Fifth Amendment which declares: 'nor shall private property be taken for public use, without just compensation.' In deciding the particular point raised, the Court there said that it could not hold that the first eight amendments applied to the states. This was the controlling constitutional rule when the Fourteenth Amendment was proposed in 1866.
My study of the historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored, as well as those who opposed its submission and passage, persuades me that one of the chief objects that the provisions of the Amendment's first section, separately, and as a whole, were intended to accomplish was to make the Bill of Rights, applicable to the states.
With full knowledge of the import of the Barron decision, the framers and backers of the Fourteenth Amendment proclaimed its purpose to be to overturn the constitutional rule that case had announced. This historical purpose has never received full consideration or exposition in any opinion of this Court interpreting the Amendment."
Notice the sentence:
-- "But these limitations were not expressly imposed upon state court action." --
--This was the 'flaw' in the BOR's which the Barron decision cynically used to establish a 'States Right' to ignore basic individual rights; - even though this concept is repugnant to the whole principle of our constitution.
- Thus the 14th was necessary to correct this erroneous decision.
The First Amendment means, as Madison said, that the federal government can not have a religion. At most, the Fourteenth can apply that meaning of the First to the states; not the "wall of separation" interpretation that the Supreme Court has used in the past.
Still at some point short of establishing a state religion a state still can be so unfair, intimidating or intrusive as to be infringing the Fourteenth Amendment.
I think that is what this case comes down to IF the court gives up it's past historically false precedents on the First.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.