April 27, 2005

Constitutional blood.

Sometimes, going over lists of documents on my computer, I find things that I've entirely lost track of. Today, I saw in my "conlaw" folder a document I'd titled "blood." Interesting! What is this?

It's a collection of three quotes -- one from the Constitution, one from FDR's court-packing speech, and one from a Supreme Court case -- all of which contain the word "blood."
U.S. Constitution, Article III:
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

FDR:
Modern complexities call also for a constant infusion of new blood in the courts, just as it is needed in executive functions of the Government and in private business. A lowered mental or physical vigor leads men to avoid an examination of complicated and changed conditions. Little by little, new facts become blurred through old glasses, fitted, as it were for the needs of another generation; older men, assuming that the scene is the same as it was in the past, cease to explore or inquire into the present or the future....

[My] plan has two chief purposes. By bringing into the judicial system a steady and continuing stream of new and younger blood, I hope, first, to make the administration of all Federal justice speedier and, therefore, less costly; secondly, to bring to the decision of social and economic problems younger men who have had personal experience and contact with modern facts and circumstances under which average men have to live and work. This plan will save our national Constitution from hardening of the judicial arteries.

Missouri v. Holland (Justice Holmes, 1920):
When we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.
I can see that "blood" is a metaphor, and that each of the three quotes uses "blood" in a different way. The Constitution uses "blood" to refer to a person's descendants (as in "blood line"). Roosevelt used "blood" to mean vigor and strength and youthfulness. Justice Holmes used "blood" to mean sacrifice in battle.

I must have meant to collect more "blood" quotes and write an essay about the blood metaphor. Years have passed and I haven't done that, and now I offer up the three quotes in an open-ended blog post. Feel free to use the comments to add more constitutional blood quotes or to suggest what path this unwritten essay might have taken.

MORE: An important document in constitutional history, dating back to 1644, is Roger Williams' "The Bloody Tenent, Of Persecution for Cause of Conscience." Anyone interested in the current controversies about the separation of church and state should know this writing, which demonstrates a very deep and strong Christian root to the Establishment Clause:
[T]he blood of so many hundred thousand soules of Protestants and Papists, split in the Wars of present and former Ages, for their respective Consciences, is not required nor accepted by Jesus Christ the Prince of Peace....

The Doctrine of persecution for cause of Conscience, is proved guilty of all the blood of the Soules crying for vengeance under the Altar....

God requireth not an uniformity of Religion to be inacted and inforced in any civill State; which inforced uniformity (sooner or later) is the greatest occasion of civill Warre, ravishing of conscience, persecution of Christ Jesus in his servants, and of the hypocrisie and destruction of millions of souls.

8 comments:

John Althouse Cohen said...

Here's another example of the Holmes sense of "blood." This is the end of Woodrow Wilson's 1917 speech to Congress requesting a declaration of war against Germany, quoted in Elk Grove Unified Sch. Dist. v. Newdow (the Supreme Court case from last year in which an atheist father tried to challenge the Pledge of Allegiance recitation policy of his son's school district):

"But the right is more precious than peace, and we shall fight for the things which we have always carried nearest our hearts,--for democracy, for the right of those who submit to authority to have a voice in their own Governments, for the rights and of small nations, for a universal dominion of right for such a concert of free peoples as shall bring peace and safety to all nations and make the world itself at last free. To such a task we can dedicate our lives and our fortunes, everything that we are and everything that we have, with the pride of those who know that the day has come when America is privileged to spend her BLOOD and her might for the principles that gave her birth and happiness and the peace which she has treasured. God helping her, she can do no other."

Mark Kaplan said...

What the heck was Bob Dylan getting at by naming his album "Blood on the Tracks?"

leeontheroad said...

The FDR quote (using "blood" as a matphor for vigor) is reminiscent of Jefferson's statement "the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." Not the cuddliest of things he said.

HaloJonesFan said...

Oh great, she's talking about blood now. Run for it! Save yourselves while you still can!

Although I guess it kind of makes sense, Blind Justice carries a sword, Ms. Althouse is a law professor, there's sort of a connection there...

David M said...
This comment has been removed by a blog administrator.
Smilin' Jack said...

Hmmm...not many bloody Constitution references here yet...maybe you need to stretch the envelope a bit, break out of the box. How about this: Bush v. Gore was an important Supreme Court case...and, of course, gore means blood!

leeontheroad said...

not much help here so far. Who's going to point out that Souter quoted the Holmes passage in his (pro-federalism) dissent in Alden v Maine? Guess I will.

Interesting that more recent SCOTUS uses of "blood" are more literal, except perhaps for BIA and tribal treaty cases having to do with "blood quantum."

Knemon said...

Blood and Chocolate?