By Dave Crater: crater@wilberforcecenter.org “There was no controlling authority, no precedent to follow; this was a purely utilitarian ruling,” the law professor argued earnestly of Pierson v. Post, a standard case studied by first-year law students everywhere. Post and his hounds were chasing a fox in the Year of Our Lord 1805 across unoccupied New York countryside; Pierson, not of the Post party, rudely interrupted the fun by shooting and possessing the fox.
Post, perhaps possessing a few more free moments at that point in life than is healthy, sued to recover the fox. The case started in Queens County but was appealed to the Supreme Court of New York, which is New York’s name for its lowest-level state court – a classic Empire State oxymoron on par with “The Honorable Mrs. Clinton.”
The county court ruled the fox was Post’s property by virtue of the chase, and that Pierson did indeed legally trespass by taking the fox. Pierson appealed to the U. S. Supreme Court, which issued the opinion on which the earnest professor now declaimed. The opinion cited precedents going back 1300 years, beginning with the Roman great Justinian (6th century) and catching Bracton (England, 13th cent.), Fleta (anonymous English, also 13th cent.), Pufendorf (German, 17th cent.), Grotius (Dutch, 17th cent.), Bynkershoek (Dutch, 18th cent.), and Barbeyrac (French, 18th cent.). With minor qualifications, these sources all agreed with each other and with the opinion of the New York Supreme Court. Still, this was a "purely utilitarian decision" without precedent.
The same professor issued as assigned reading the day prior a short treatise on the “scientific” view of property, which takes as its aim “to disabuse entering law students of their primitive lay notions regarding ownership.” This view, the professor assured us, is “technical” and “scientific,” while the layman’s opinion is “visceral”; it, presumably, is what keeps him from becoming a lawyer.
The second reading for the day was on the property habits of patients in an insane asylum, and how, stripped of their property before entering, they each search for personal space and possessions in the ward – habits the professor also seemed to think visceral.
The professor was not hostile; on the contrary, his interest was delightfully piqued at the notion anyone would think the majority in the Pierson case on firm stare decisis ground (“Oh, yes, the classic stare decisis case is Planned Parenthood v. Casey in 1991, which reaffirmed the precedent of Roe v. Wade”) or that even asylum patients show evidence of an innate sense of natural property rights.
This is a true story that happened this week; all was said with a serenity of mind reminiscent of a priest alone in a cathedral. My own view is that there is not much that can be said to this kind of insulated, er, liberalism? So transparently does it evidence the marks of a legal and historical blindness that, as one waits for the punch line, one hesitates even to degrade the term “liberalism” from its often useful function in respectable public discourse.
Yet this is liberalism as much in its public dress as in its priestly academic dress -- smugly insisting that (1) innovation based on our own wisdom is the self-evident course and (2) the wisdom of the ages we cannot admit as evidence.