YOU HAVE THE BODY

I walked into a coffee shop to find Socrates and Steve engaged in an intense debate; intense, I say, because Steve was turning red with rage, a typical reaction to Socrates. I wasn’t sure I wanted to join them inasmuch as Steve looked as though he was prepared to resort to fisticuffs. But the question was promptly removed from my discretion when Socrates spotted me at the counter making my order. “Jacob,” he said. “You’ve come at good time. Join us when you get your coffee.”

Noticing that Steve’s face was still red, and that he didn’t look up to greet me, I asked, “Is it safe? It looks like you’ve driven Steve to the edge of sanity.”

Socrates laughed. “He hasn’t attacked me yet.”

“Yeah, well I’m getting close,” was Steve’s response.

“Hold up there, Steve,” I said. “Maybe I can give you a hand after I get my coffee.”

Steve snorted, giving indication that he doubted that I would be much help. He was right, of course, as far as helping him in an argument with Socrates. But I hoped I could defuse the situation so that Steve wouldn’t pop a blood vessel.

My order was simple, having ordered a coffee with cream, so I was able to join them at the table quickly. “Okay, Socrates,” I said as I sat down. “How are you disturbing the peace today?”

“Steve, here, thinks that the President can suspend the writ of habeas corpus,” Socrates replied.

“Pardon my ignorance,” I said, “but remind me what the writ of habeas corpus is.”

Steve laughed with disdain. Socrates only smiled, and said, “It’s a court order directing that a person in custody be brought before the court to determine the lawfulness of his detention. It’s a process we inherited from England.” [1]

“And I’m saying that the Constitution provides that the writ can be suspended in certain emergencies,” Steve said.

“And I’ll ask you again,” Socrates replied, “Doesn’t the Constitution specify what those emergencies are?”

“Yes it does,” Steve said. “It says that the writ may be suspended ‘when in Cases of Rebellion or Invasion the public Safety may require it.’” [2]  

“Well, are we experiencing a rebellion or invasion?”

“We’re certainly experiencing an invasion. There are any number of illegal immigrants in our country.”

“Do you think that’s what the Framers of the Constitution meant by an invasion?”

“It must be one of the things they meant.”

“Just so we’re clear,” Socrates said, “you’re saying that an influx of illegal aliens are included in what the Framers meant by an invasion.”

“Absolutely!” 

“But how could that be if there was no such thing as an illegal alien at the time that provision of the Constitution was enacted?”

“Come again?”

“There wasn’t such a thing as an illegal alien when the Constitution was first adopted, was there?”

At that, Steve took on a smug expression. “Oh really? What about the Alien and Sedition Acts?”

“What about them?”

“You said that there was no such thing as an illegal alien when the Constitution was adopted. But the Alien and Sedition Acts were enacted during the Adams administration in 1798, and John Adams was the second president. They must have had an idea of illegal aliens to pass the Alien and Sedition Acts.”

“Well, you do know that the Alien and Sedition Acts consisted of four statutes?”

“That’s right.”

“And one of the statutes was the Naturalization Act of 1798?” [3] 

“That’s right.”

“But that act extended the residency requirement for naturalization from five to fourteen years, am I right?”

“That’s true.”

“So, that act had nothing to do with immigration, but naturalization.”

“Okay, so what?”

“So, if aliens had a residency requirement to become a citizen, they had to be present in the United States for the required period of time. And there was nothing in the statute that mentioned entering the United States illegally.”

“True, but there were three other statutes that were enacted under the Alien and Sedition Acts.”

“Okay, let’s look at the Sedition Act. [4] Do you recall what that was about?” 

“Of course. The Sedition Act criminalized the defaming of the federal government, the president, or Congress. That should still be the law today.”

“You’ve lost my vote,” said Socrates. “But the point is that the Sedition Act had nothing to do with immigration, illegal or otherwise.” 

“That’s right. But with the other two statutes I think you’re going to have a harder time making your case.” 

“How so?” 

“Well, there was the Alien Friends Act, which authorized the president to order any alien out of the country when he deemed it necessary for the public safety.” [5] 

“True. But in order for them to be removed out of the country didn’t they have to be in the country to begin with?” 

“Naturally.” 

“And was there any indication in the statute that the people to be removed were illegally in the country to begin with?” 

“No, the statute didn’t deal with that.” 

“But isn’t our discussion about illegal immigrants? Isn’t an illegal immigrant someone who enters the country illegally?” 

“Yes.” 

“So, the Alien Friends Act is irrelevant. And isn’t the remaining statute, the Alien Enemies Act, which is still effective law unlike the others, equally irrelevant?” [6] 

“Why do you say that?”

“Doesn’t the Alien Enemies Act deal with citizens of countries that the United States is at war with?”

“Not just at war, Socrates, but also when there is an ‘invasion or predatory incursion.’ We are certainly being invaded by illegal immigrants.”

“Well, now you’re begging the question,” Socrates said. “But in point of fact, doesn’t the statute require that the ‘invasion or predatory incursion’ be ‘perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government….’”

“Okay, what’s your point?” 

“Are we being invaded by another nation or government?”

“We’re certainly being invaded by citizens of other countries.” 

“That’s not the requirement. The requirement is that the invasion be by a foreign nation or government. It must be an act by a foreign country, not just some of its citizens.” 

At this point Steve was beginning to turn purple. “The statute still authorizes removal of those citizens.” 

“Indeed. But, again, to be removed don’t they have to already be in the country?” 

“Of course they do.” 

“But there’s nothing in the statute that indicates they were illegally in the country to begin with, is there?” 

“No. But I don’t see your point.” 

“So, the Alien Enemies Act is equally irrelevant. And the question at hand is whether the criteria for the suspension of habeas corpus is met in the present circumstances.” 

“And I say we’re being invaded.” 

“But how can you legitimately say that illegal immigration constitutes an invasion for purposes of the Suspension Clause when there was no such thing as illegal immigration when the Constitution was adopted?”

“Alright, fine. But it doesn’t matter. Article III courts, the ordinary federal courts, aren’t allowed to be involved in immigration cases.” [7] 

Socrates laughed. “If that were true, what would be the point of suspending habeas corpus? If the Article III courts aren’t allowed to be involved in immigration cases, and it’s immigration cases you’re worried about, wouldn’t that mean you already have what you want? Why do you need to go further?” 

“The courts don’t seem to realize the limits of their authority. They get involved with immigration cases even though Congress has specifically prohibited it.” 

“Where are you getting this from?” 

“What? That the courts are to stay away from immigration cases and let the executive branch handle it? It’s the law.”

“You’re sure that the courts don’t have any appellate function in immigration cases?” [8]

“Aren’t you familiar with Department of Homeland Security v. Thuraissigiam, a Supreme Court case?” [9] 

“Tell me about it.” 

“They laid out the applicable law in that case. If an illegal alien is caught trying to cross the border, the alien gets a hearing before an immigration judge, who, by the way, is part of the Executive Branch. The alien can even apply for asylum. And he can even appeal the decision of the immigration judge to the Board of Immigration Appeals.”

“And don’t forget,” Socrates said, “that the alien is generally entitled afterward to a review by the Court of Appeals.”

“What’s your point?” 

“You said that Congress enacted a law that says that Article III courts are to keep their hands off of immigration cases. But the Court of Appeals is an Article III court, isn’t it?”

“Yes, but the courts are specifically not authorized to review whether an alien is actually ineligible to be admitted to the country or is entitled to relief from removal.” 

“But isn’t habeas corpus designed for the purpose of challenging the applicant’s custody status?”

“Yes.”

“But didn’t the Supreme Court in the case we’re talking about point out that Thuraissigiam wasn’t challenging his custody status?” 

“That’s right.” 

“So, the writ of habeas corpus wouldn’t apply in that case anyway. So how does it help your position?”

At this point Steve started raising his voice. “See here, Socrates! No matter what you say, the president gets to decide when the privilege of the writ of habeas corpus should be suspended. So, all your blather is meaningless.”

“The president gets to decide, not Congress? Are you sure about that?”

“Yes I’m sure. Abraham Lincoln suspended the writ during the Civil War.”

“But that met with significant opposition, didn’t it? So much so that Lincoln eventually acquiesced and obtained congressional approval?”

“Nonetheless, he did it.”

“Even a great man like Abraham Lincoln can make mistakes. And had he read Justice Joseph Story’s Commentaries on the Constitution, it would have been hard for him to come away with the belief that the power to suspend the writ rested with him rather than Congress, am I right?” [10]  

“That was Joseph Story’s opinion.”

“Alright, and were you aware that Chief Justice John Marshall said in passing, in the case of Ex parte Bollman, that it is for the legislature to decide if the writ of habeas corpus should be suspended?” [11]

“If he said it in passing, then it isn’t valid precedent.”

“But John Marshall was a Founding Father. Wouldn’t you think he had a good idea what was intended by constitutional provisions?”

“He wasn’t infallible.”

“But where is the Suspension Clause in the Constitution?” 

“Article I.” [12]  

“Right you are. And does Article I vest power in Congress or the president?”

At this point Steve started shaking. He stood up and kicked his chair over, startling everyone in the coffee shop, particularly me being the closest to him. He stormed out without saying another word.

I started to laugh. “Good job, Socrates,” I said.

“That was unexpected,” Socrates said calmly.

“I take it that Article I vests power in Congress,” I ventured.

“Indeed it does,” Socrates replied. 

 

--Jack Quirk

 

OF PRIESTS IN CUSTODY

Socrates and I were sitting outside of our state’s capitol building when Socrates’ friend, Noel, emerged with a smile that gave indication of a political victory. At least that was what first crossed my mind, since she was a state senator, and we had situated ourselves in front of her place of employment. Socrates obviously had the same impression, because when she got within a comfortable earshot he greeted her and said, “Good afternoon, Noel. You have the look of someone who has just won a legislative victory.”

Noel laughed pleasantly, and said, “You’ve guessed correctly. It looks as though we’ve finally rid ourselves of an impediment to protecting children against abuse and neglect.”

“That is good news,” Socrates said. “What was this impediment that you speak of?”

“You are aware of the priest-penitent privilege?”

“Indeed. It is the privilege that prevents whatever a penitent says to his or her priest from coming into evidence at a trial.”

“Well, that also applies to other members of the clergy,” Noel reminded him.

“Naturally,” Socrates replied. “I didn’t mean to be parochial.”

“No pun intended?” I asked laughing.

Socrates looked at me with a grin, but Noel ignored me. Socrates returned his attention to Noel and asked, “So, what have you done with the priest-penitent privilege?”

“I only mentioned it because I knew you would be familiar with it,” Noel said. “But this new legislation, which I sponsored, actually deals with mandated reporters in child abuse and neglect cases.” [1] 

“So, the priest-penitent privilege still applies?”

Noel shook her head. “No, not in the case of child abuse or neglect cases.”

Socrates squinted his eyes and stroked the whiskers on his chin. “I’m confused.”

Noel laughed. “I’m sorry. What I mean to say is that the law exempts privileged communications from reporting requirements. But this new law will remove members of the clergy from that exemption.”

“Okay,” Socrates said. “Explain this to me as if I was a toddler. What reporting requirements are you talking about?” 

“There are certain people who are considered mandatory reporters in the law, which means that once they have reasonable cause to believe that a child has been abused or neglected they are required to report it to law enforcement or the department of children, youth or families.”

“Okay, I knew about that. This includes sexual abuse doesn’t it?”

“Of course.”

“But this doesn’t apply to communications that are considered privileged under the law?”

“That’s right. Except now the privilege covering communications to members of the clergy will no longer be recognized.”

“Interesting. So, what other communications are considered privileged?”

“Well, let’s see. Communications between spouses or domestic partners are one. And, of course, there is the attorney-client privilege.” [2]

“Will those privileges continue to exist in child abuse cases?”

“Yes they will.”

“So, if a child abuser tells his attorney or his wife about his predations, they are under no obligation to report it?”

“No.”

“But if he tells his priest, minister, rabbi, or imam, then they will be required to make a report to the appropriate authorities.”

“That’s right.”

“Why are members of the clergy required to make a report, but attorneys and spouses are not?”

Noel’s demeanor changed to one of apparent frustration. “This is about protecting children, Socrates.”

“A worthy goal indeed,” Socrates replied. “But why wouldn’t you want to equally protect abused children whose perpetrators confess to their attorneys?”

“The attorney-client privilege is sacrosanct in the law.”

“So is the priest-penitent privilege, I thought.”

“Not in this state anymore, not in child abuse cases.”

“Can you do that?”

“Why not?”

“What about the First Amendment?” [3] 

Noel laughed (somewhat derisively it seemed to me). “It’s the First Amendment that requires that the priest-penitent privilege be abolished. It’s separation of church and state.” [4] 

I saw Socrates restrain laughter, I assumed in order to keep the conversation on a polite level. “Well, now, you don’t see how this new law could actually violate the First Amendment?” 

“Of course not. If anything, the state allowing a priest-penitent privilege is establishing religion in violation of the First Amendment.” 

“What about the Free Exercise Clause?” 

“What about it?” 

“The First Amendment prohibits the government from prohibiting the free exercise of religion, doesn’t it?” 

“Yes, but how does the new law do that?” 

“In the Catholic Code of Canon Law, regarding the Sacrament of Penance, it is said that the “sacramental seal is inviolable,” and that “it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason.” [5] 

“Maybe so. But as you must know, a law of general applicability doesn’t violate the Free Exercise Clause as long as it isn’t directed at a religious practice.” [6] 

“Yes, I am fully aware of the horror that is Employment Division vs. Smith. But your law is specifically directed at a religious practice: the practice of the Sacrament of Penance. So it doesn’t even pass muster under that case.” 

“How so?” 

“Haven’t you specifically excluded members of the clergy from the privilege in child abuse cases?”

“Yes.” 

“And aren’t members of the clergy religious officials?”

“Yes.”

“So, how can you say that you haven’t specifically targeted religion with your legislation?”

Noel paused for a moment. It seemed to me that she was trying to restrain her anger. Finally, she said, “Socrates, don’t you care about children who are abused?” 

“Of course I do.” 

“Then how can you think that it’s okay for a priest to conceal information about a child abuser, even if he heard it in Confession?” 

“Seriously,” Socrates said, “what do you really think you’re accomplishing with your law?”

“I’m protecting children.” 

“Do you think that priests are going to break the confessional seal just because you passed a law?”

Noel thought for a moment, then said, “No I suppose not.” 

“In fact, they will willingly go to jail rather than do that, am I right?” 

“Probably.” 

“So, this law isn’t really going to gain information about child abuse, but will actually be a means of jailing priests. That’s all it’s going to accomplish.” 

“So much the worse for priests.” 

“And how will you ever prove that a priest violated your law? If the priest won’t say what he heard in Confession, all you will have is the word of the perpetrator. And his interest will be to deny that he even committed the abuse.” 

At this point, Noel was done with the conversation. “Socrates, as always, you have some interesting points. But I have to be somewhere. So, I’ll have to see you later. Goodbye.”

“Goodbye, Noel,” Socrates replied as she walked away.

I waited until Noel was out of earshot, then burst out laughing. “Always making friends and influencing people,” I said.

“She’s not entirely without a point,” Socrates said. “Maybe the Church should make a rule that when serious felonies are committed, the perpetrator will be denied absolution until he turns himself in.”

“What? Are you Pope Socrates now?”  

“I’m allowed to make suggestions,” Socrates replied.  

--Jack Quirk

THE OLIGARCHIC STATES OF AMERICA

A man running for the House of Representatives had set up in the city park, and Socrates and I stopped to observe. He was declaring to the assembled crowd that his opponent was a socialist, and was pointing out that the Soviet Union was an object lesson for all of us. We should not allow ourselves to go down that road, he insisted, and that the only sensible option for us was to cast our vote for him.

After listening to him for a short while, we moved on. As his voice faded in the distance as we walked, I said to Socrates, “You know, that guy was making sense. We need to make sure that we don’t get any more socialist than we already are.”

“I didn’t realize that the United States was at all a socialist country,” Socrates said. “Last I heard we lived in a capitalist society.”

“Oh, come on, Socrates,” I retorted. “With all the welfare, food stamps, and Medicaid we have, how can you say that we aren’t becoming a socialist country?”

 Socrates stopped and looked at me, squinting with apparent confusion. “What do you think socialism is?”

“Just what I was talking about,” I said. “It’s taking money from people who earn it and giving it to people who don’t.”

Socrates sat down on a bench situated at the edge of the park, and stared at the ground. He seemed to be astonished at what I had just said to him.

“What?” I asked.

“Look around,” he said. “How many businesses around here do you see that are government owned?”

I sat down next to him. “None of them. Unless you count the courthouse over there. But that’s not really a business.”

“Are you unaware that socialism proper is public ownership of the means of production? Consult a dictionary. I’m sure you will find I am right.” [1]

“Ownership of the means of what now?”

“Goods and services need to be produced, don’t they?”

“Of course, if we’re to have them at all.”

“And don’t they come about through using resources and tools?”

“Sure.”

“Now under capitalism, who owns those resources and tool? Isn’t it business owners?”

“By and large. But I’ve seen trades people who don’t work for themselves but have their own tools.”

“But they don’t own the large machinery, right? For example, toolmakers don’t own the CNC lathes they work with unless they’re an owner of the shop they work in.”

“True.”

“But lest we travel too far off the road, do you understand now what means of production is?”

“Yes.”

“And do you understand that socialism involves public ownership of the means of production? I mean, that’s the classic definition. Lots of things are called ‘socialism’ nowadays, almost to the point that it has become a meaningless term.”

“Okay, then, that’s socialism. But I still don’t like the idea of the government taking money from one person and giving it to someone else.”

Socrates smiled. “So, you don’t like the idea of paying taxes that are ultimately paid to defense contractors?”

“That’s not what I mean, and you know it. I’m talking about welfare.”

“So, you don’t object to your money going to the rich, just to the poor.”

I became a little irritated. “Defense contractors do something useful. Without them we wouldn’t be able to defend the country. But people who are on welfare, and get food stamps, aren’t productive. They’re a drain on the system.”

“I suppose you think they don’t work.”

“They don’t.”

“A lot of people on food stamps (actually they’re called SNAP benefits now) are children. [2] Do you think they should get a job?”

“Their parents should.”

“And if their parents don’t, should we just let their children starve? Haven’t you seen pictures of children overseas with distended bellies? Do you want to see that on American streets?”

“No, I suppose not.”

“And many adults are elderly or disabled. Should we let them starve and reduce the surplus population?”

“Not if you put it that way.”

“And perhaps you are unaware that most able-bodied adults who receive SNAP benefits who are able to work do so?”

“No, I didn’t know that. Maybe they should get better jobs.”

“I’m sure they would like to. But I imagine you will be pleased to know that many adults without children, who don’t meet certain requirements, have their SNAP benefits taken away from them.”

“Well, good. People should take care of themselves, and not ask the rest of society to do it.”

Socrates shook his head in disbelief. “Do you think people will just voluntarily sit there and starve?”

“What do you mean?”

“What if you were starving? Wouldn’t you be tempted to steal?”

“Sure.”

“And isn’t stealing a crime?”

“Last I checked.”

“So, you don’t think that a stingy welfare system, or no welfare system, will create crime?”

“Yeah, I suppose I can see that. But I guess that’s what jails are for.”

“So, are you going to starve people in jail?”

“I don’t understand.”

“Aren’t jails and prisons a public expense?”

“Yes.”

“So, how much does society really save by not having a robust welfare system?”

“Okay, I see your point.”

“Thank you. So we’re agreed that a certain level of income redistribution is necessary to maintain order in society.”

“So it seems. But the question becomes how much redistribution is necessary.”

“Good question. What do you think?”

“Well, Socrates, based on what we’ve discussed so far, I would say just enough to keep people from committing crimes.”

“That would certainly be a bare minimum,” Socrates said laughing. “I have to assume you would want to leave out considerations of decency and humanity.”

To that remark I became positively angry. “Look here! I’ve gone with you as far as doing enough to protect society against crime. But there comes a point where we have to be realistic, and accept that nature works on the basis of survival of the fittest.”

“Ah, you’re a Social Darwinist!” Socrates declared, then burst into intense laughter.

“What’s so funny?”

Socrates recovered himself and said, “I’m not laughing at you Jacob. I’m just thinking about the absurdity that so many Social Darwinists don’t believe in evolution.”

“What does that have to do with what I said?”

“Nothing, unless you don’t believe in evolution. But can’t you conceive of a species thriving because its members cooperate with each other?”

“I don’t know.”

“Well, let’s not delve into biology for now. Let’s instead ask ourselves whether democracy is a good thing.”

“It doesn’t matter. We don’t live in a democracy. We live in a constitutional republic.”

“I think James Madison would agree with you. But do you know what he meant by ‘republic?’”

“Yes. It means we’re a collection of states, which is why we vote for our presidents through the Electoral College.”

“You’re thinking about federalism. You didn’t realize that what Madison meant by a ‘republic’ is what we would now call a ‘representative democracy?’” [3]

“I didn’t.”

“And wouldn’t you agree that we live in a representative democracy? At least that’s the aspiration.”

“Sure.”

“But do you think democracy can thrive in the United States when it has the highest income inequality in the Western world?” [4]

“Sure, why not?”

“Well, since we live in a representative democracy, don’t those representatives have to run for office?”

“Of course.”

“And don’t their campaigns have to be financed, either directly or indirectly?”

“What do you mean by ‘directly or indirectly?’”

“By ‘directly’ I mean a donation to a campaign. By ‘indirectly’ I mean funding advocacy, such as in a file or advertisement, for a certain candidate without making a direct donation to his or her campaign.”

“I see.”

“Now certainly you would agree that a candidate for office will tend to favor those who make a large donation to his or her effort to get elected.”

“That certainly makes sense.”

“Moreover, you also have to agree that the wealthy are in a better position to make such donations than those of middle income or certainly the poor. Am I right?” 

 “Yes, obviously.”

“So, it shouldn’t be surprising that ordinary Americans have little impact on government policy.” [5]

 “I suppose that’s true.”

“But, then, can it be said that we have a representative democracy worthy of the name if the majority have no say in their government?”

“No, I guess not. But what can be done about it?”

“Do you think that a heavy progressive income tax combined with a negative income tax to make incomes more equal would work?”

It was my turn to laugh. “Good luck with that. If our politicians only pay attention to the rich, how would something like that ever be enacted?”

“But if it could be enacted, would it be effective in democratizing the public interest on government?”

“If it could be enacted, yes.”

“Or, how about this: what if we abolished all private funding of campaigns, either direct funding or indirect, and everyone seeking office would be required to have their campaigns financed strictly with public funds? Would that work?”

“I suppose so. But what about the First Amendment? Don’t even the rich have the right to support the candidates they favor?” [6]

“Okay, but ask yourself why we have freedom of speech. Isn’t it so that every political idea can be made public, and be given consideration for purposes of public policy?”

“That sounds right.”

“But doesn’t private funding of campaigns distort that outcome, such that the majority has no impact on government decision making?”

I had to think for a moment. “Yes, I suppose that’s true.”

“Indeed, doesn’t our current method of campaign funding amplify some voices and effectively silence others?”

“You’re right, Socrates.”

“If that outcome was effected directly by law, so that only some were allowed to speak and others were prohibited from doing so, wouldn’t that be a clear violation of the First Amendment?”

“It would.”

“But our current method of campaign funding accomplishes the same result, doesn’t it?”

I had nothing more to add. “You know, Socrates,” I said, “you'd better hope that you don’t become well-known with your ideas.”

“Why is that?”

“Why? Because you’ll be shot, that’s why.”

“Everybody has to die sometime,” Socrates said.

 

--Jack Quirk