Law of excluded middle

“ They are to this moment a proscribed race—liable indeed to the force of special statute, if they offend;—but for ever barred from the protection of common law, and excluded from the common rights of the community. ”

“ As a corollary to the proposition that all institutions must be subordinated to the law of equal freedom, we cannot choose but admit the right of the citizen to adopt a condition of voluntary outlawry. ”

“ The plurality's newly minted clear-statement rule is also fundamentally inconsistent with the nature of the common law which, by definition, evolves and develops over time and does not, in all cases, "say what may be done." ”

“ All are free; for, according to the definition, the unjust thralldom imposed on all by brute force and by hereditary prejudice has been suppressed.—But if all men are equal, no reason exists why, in this contract, any special advantage should be conceded to one more than to another. Accordingly all shall be equal before the law; no person, or family, or class, shall be allowed any privilege; no one shall claim a right of which another might be deprived ”

“ And inequalities that result not from hostile discrimination, but occasionally and incidentally in the application of a system that is not arbitrary in its classification, are not sufficient to defeat the law. ”

“ Whenever it be made an article of a constitution, or a law, that the right of voting, or of electing and being elected, shall appertain exclusively to persons possessing a certain quantity of property, be it little or much, it is a combination of the persons possessing that quantity, to exclude those who do not possess the same quantity. It is investing themselves with powers as a self-created part of society, to the exclusion of the rest.
It is always to be taken for granted, that those who oppose an equality of rights, never mean the exclusion should take place on themselves ”

“ Of course this is not to say that their existence on the books may never play a significant and even decisive role in private decision making. But the question in each case, if the right of the individual to make his own decisions is to remain viable, must be: was the discriminatory exclusion in fact influenced by the law? ”

“ The principle of equality, besides being as easily applied to property as to power, opposes the existence of persons or groups of persons exempt from the common law, and independent of the common will ”

“ That which is now called aristocracy implies an inequality of rights, but who are the persons that have a right to establish this inequality? Will the rich exclude themselves? No. Will the poor exclude themselves? No. By what right then can any be excluded? It would be a question, if any man or class of men have a right to exclude themselves; but, be this as it may, they cannot have the right to exclude another. ”

“ The Constitution of the United States, requiring that no state shall deprive any person of life, liberty, or property without due process of law, has not undertaken to equalize all the inequalities which may result from the exercise of recognized state authority. ”

“ But it is clearly laid down as a fundamental principle of the all-pervasive common law, that rights given by the Creator are unalienable, [Pg 17] and that no human being, however emphatically he may declare, or will, or agree to the contrary, may by any possible act of any other human being or of any set of human beings, whether calling themselves a government or not, or by any possible means, deprive himself, or be deprived of the right of life, liberty and the pursuit of happiness—these being necessarily incidental to the original right of equality. ”

“ If these limits can be ascertained, and if each person keeps within them, then a right of compulsion does not arise at all; an equilibrium of rights is the result, which it must now be our task to determine, for only where this equilibrium of rights is disturbed, may the law of compulsion become applicable. ”

“ It was lately stated, that if a legislature can by law form a new society, to draw money artificially from the rest of a nation, that the residue of the old society was no longer in a social state. By the association of the people, the principle of an equality of rights may be asserted and established. By the association of the government, the contrary and artificial principle of exclusive privilege, may be asserted and established. ”

“ By the latter clause the declaration is plainly applicable to the States, while the earlier words assert the equality of all persons before the law,—a fruitful principle, assuring to all the same rights. Inter pares non est potestas, “Among equals there is no superiority,” is a received maxim of law, expressing a natural truth. Therefore, where all are equal, there can be no Slavery; so that, in declaring equality before the law, you make Slavery, alike with superiority, impossible. ”

“ I speak in the presence of enlightened constitutional lawyers and statesmen, and I do not fear a contradiction when I assert that the doctrine of exclusion is not to be found in the principles, or in the analogies of our Constitution, or in the history of our country, or in the opinion of any statesman whose name or memory has reached us. ”

“ What we do mean, as a little reflection will shew, is this—that the rules of an established society are part of the law of the land, and enforced as such; whilst the rules of a voluntary society are not part of the law of the land, and are not enforced as such. When the members, or any of the members, of a religious society have, as such, special rights and obligations, capacities or incapacities, created by the law of the land—when, in two words, they have a legal status—the society is established: they have none when it is not established. ”

“ States are such units; the hypothesis of their independence excludes the notion of a common lawgiver, and draws with it, therefore, according to a certain range of ideas, the notion of subjection to the primeval order of nature.058 The alternative is to consider independent communities as not related to each other by any law, but this condition of lawlessness is exactly the vacuum which the Nature of the jurisconsults abhorred. ”

“ In determining whether or not a state law violates the Equal Protection Clause, we must consider the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification. ”

“ Indeed, I had supposed, if there was a universal and uncontroverted proposition in the common law, as it is known and understood in England and in this country, it was, that no act done in violation of the laws of the land, or in disregard or contravention of its principles, can be the foundation of a claim which can be enforced at law or in equity. ”

“ Most laws subject to rational basis easily survive equal protection review, because a legitimate reason can nearly always be found for treating different groups in an unequal manner. See Romer, 517 US at 633. Yet, to survive rational basis review, a law must do more than disadvantage or otherwise harm a particular group. ”

“ It is that of the general will, which can neither be alienated nor represented. Is the prince above the law? The answer is, He is a member of the state, and cannot be so. Can the law be unjust? No one can be unjust to himself: therefore not the whole people to the whole people. How can we be free and yet subject to the laws? The laws are the register of our own will. (Ib.) Laws, in short, are properly those general 'conditions of civil association' which the associates impose on themselves. ”

“ The necessity for an exclusion like this, it will be admitted by all, must indeed by very strong to justify it: it will never be recognized for trivial reasons much less upon those that may be simulated or unworthy. ”

“ The general rule that the expression of one thing is the exclusion of others is subject to exceptions. Like other canons of statutory construction, it is only an aid in the ascertainment of the meaning of the law, and must yield whenever a contrary intention on the part of the lawmaker is apparent. ”

“ The second section provides a penalty against any one denying, or aiding or inciting the denial, to any citizen that equality of right given by the first section, except for reasons by law applicable to citizens of every race or color, and regardless of any previous condition of servitude. ”

“ He observed, however, that while the equidistant principle "may be a slightly preferred method of delimitation, it does not reach the stature of a rule of law." 2 Rep. 16. Instead, "it is the principles of equity which should guide the conclusion in each particular case." ”

“ Such being the direct working of the law in the case of possession, one would think that the animus or intent most nearly parallel to its movement would be the intent of which we are in search. If what the law does is to exclude others from interfering with the object, it would seem that the intent which the law should require is an intent to exclude others. I believe that such an intent is all that the common law deems needful, and that on principle no more should be required. ”

“ Does not the law manifestly imply that a distinction is to be made between those who are for a capital conviction, and those who are for banishment, in the very form of words made use of when the house is ordered to divide? You who are of such an opinion, come to this side; you who are of any other, go over to the side of him whose opinion you follow. ”

“ A system so unequal and unjust has been superseded by the existing law, which imposes duties not for the benefit or injury of classes or pursuits, but distributes and, as far as practicable, equalizes the public burdens among all classes and occupations. ”

“ That EQUALITY, consisting only in EQUALITY OF CONDITIONS, that is, OF MEANS, and not in EQUALITY OF COMFORT,—which it is the business of the laborers to achieve for themselves, when provided with equal means,—in no way violates justice and equite. ”

“ The same fluid and dynamic conception which underlies the modern notion of liberty, as secured to the individual by the constitutional immunity, must also underlie the cognate notion of equality. No state shall deny to any person within its jurisdiction "the equal protection of the laws." [54] Restrictions, viewed narrowly, may seem to foster inequality. The same restrictions, when viewed broadly, may be seen "to be necessary in the long run in order to establish the equality of position between the parties in which liberty of contract begins." ”

“ It is juggling with words to say that all the independents make up a single 'class,' and by reason of that fact must be subjected to a single rule. Whether the class is divisible into subclass § is the very question to be answered. There may be division and subdivision unless separation can be found to be so void of rationality as to be the expression of a whim rather than an exercise of judgment. 'We have no right,' it is now said, 'to conjure up possible situations which might justify the discrimination.' The court has taught a different doctrine in its earlier decisions. ”

“ There is, in fact, to-day, a sort of "No Man's Land" in Poor Law administration, in which the principles of 1834 have been de facto abandoned, without the principles of 1907 being consciously substituted. Owing to this lack of central direction, we find diversity without deliberation, indulgence without cure, and relief without discipline. ”

“ It is, however, quite impossible to lay down a hard and fast general rule concerning the amount of inequality between the equal and the unequal States, as everything depends upon the circumstances and conditions of the special case. ”

“ And yet it would be extremely difficult, upon any mere theoretical reasoning, to establish any satisfactory principle upon which the one-half of every society has thus been systematically excluded by the other half from all right of participating in government, which would not at the same time apply to and justify many other exclusions. ”

“ It is needless to say that the whole value and object of the whole movement for uniformity is to have actual uniformity. That is to say, unless the lawyer or citizen reading the statute can be sure that it is uniform with the laws of all other States without taking the trouble to consult them, the reform has no value. ”

“ Concerning the Law of the Weaker.—Whenever any party, for instance, a besieged city, yields to a stronger party, under stipulated conditions, the counter stipulation is that there be a reduction to insignificance, a burning and destruction of the city and thus a great damage inflicted upon the stronger party. Thus arises a sort of equalization principle upon the basis of which a law can be established. ”

“ Natural law, then, is the paramount law. And, being the paramount law, it is necessarily the only law: for, being applicable to every possible case that can arise touching the rights of men, any other principle or rule, that should arbitrarily be applied to those rights, would necessarily conflict with it. And, as a merely arbitrary, partial and temporary rule must, of necessity, be of less obligation than a natural, permanent, equal and universal one, the arbitrary one becomes, in reality, of no obligation at all, when the two come in collision. ”

“ The declaration that a citizen is an outlaw is the highest punishment which the state can inflict upon any rational being. For the state exists for the individual as state only through the compact. The utmost the state can do, therefore, is to declare this compact annulled. Both the state and the individual do not now exist for each other any more. The compact, the legal relation between them, and indeed all relation between them, has been utterly canceled. The state has now no right upon the individual by virtue of the compact ”