The Volokh Conspiracy
[Eugene Volokh, January 18, 2008 at 2:47pm] Trackbacks
Sedition!

Not often that you see a judge complaining about a "seditious doctrine." Here's one instance, though, from a November 2007 concurrence by Justice Richard B. Sanders of the Washington Supreme Court:

I also note with alarm the seditious doctrine sometimes embraced by our majority that even our Declaration of Rights is itself trumped by exercise of the state's police power, a power which a majority of my colleagues seems to believe with their new-found wisdom has no limits whatsoever.

Not just mistaken, unsound, and the like -- seditious.

tarheel:
I assume he meant "pernicious."
1.18.2008 2:00pm
K Parker (mail):
I think in using the word "seditious" in relation to a decision about the state's police power, he's maybe got these wonderful words from our Open Records Act (RCW 25.56.030) in mind as context:
The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created. [emphasis added]
The position he's opposing is really a strike against the sovereignty of the citizens, and thus seditious.
1.18.2008 2:00pm
LawClerk1 (mail):
Justice Sanders is a rare breed, and a champion of liberty. Sometimes that takes him in odd directions that seem "out of step" with society, but you can't be in step with the majority when you are protecting the liberty of the minority from the tyranical desires of a majority.
1.18.2008 2:15pm
Rich B. (mail):
Who day and night must listen to our phone call,
Rummage through our trash cans,
Interrogate our spouse?

And who has the right as officers of law,
To search our homes without a warrant?

(chorus)
The Police State! The Police State!
The Police State!
Sedition!

At eight I joined a Muslim mosque,
At twelve I learned to fly,
The put me in Guantanamo,
Without a trial!

(chorus)
Sedition! Sedition!
Sedition!

etc. . .
1.18.2008 2:16pm
Mark Field (mail):
Jefferson and Hamilton were fond of describing the other's position as "heretical". "Seditious" seems tame by comparison.
1.18.2008 2:26pm
SMatthewStolte (mail):
Nothing today comes close to the polemics of the eighteenth century. Some of those men were artists.
1.18.2008 2:30pm
Tony Tutins (mail):
I had to check to make sure the Judge was not the same person who played newsman Les Nessman. The judge is Richard B. Sanders; Loni Anderson's co-star (also a Washington stater) is Richard K. Sanders
1.18.2008 2:43pm
Kellen Kooistra:
Justice Sanders came to speak at a Con Law class I was in a couple years ago. Our prof introduced him with the statement "If you work hard and study like Justice Sanders one day you too could go on to write dissenting opinions"
1.18.2008 3:33pm
Kazinski:
I dunno it seems the in the context of what he is complaining about seditious seems to fit somewhat. He is complaining that the Supreme Court is complicit in a power grab by the legislature. A usurpation of power by the legislature stretches the definition of sedition a little but not beyond the bounds of recognition.
1.18.2008 3:44pm
NaG (mail):
This is not the kind of language a judge should use if he/she is trying to change the flow of the law, or the minds of his/her fellow judges.
1.18.2008 3:48pm
Mark Field (mail):
Every time I hear the word "sedition", I hear Tevya belting out "tradition". I'm sure this happens to everyone else. Please tell me it does.
1.18.2008 3:50pm
Hoosier:
In the night he's a star in the Milky Way
He's a man of the world by the light of day
A golden smile and a proposition
And the breath of God smells of sweet /sedition./

Great Deceiver (King Crimson)

As long as we are posting about songs . . .
1.18.2008 3:55pm
ChrisIowa (mail):

Every time I hear the word "sedition", I hear Tevya belting out "tradition". I'm sure this happens to everyone else. Please tell me it does.


It may be a clue as to your age.
1.18.2008 4:04pm
UW2L:
@Rich B.: Happily, before Justice Sanders ever got there, the Washington Supreme Court held in State v. Boland, 115 Wash.2d 571 (1990), that under the state constitution, the fuzz in fact can't go rummaging through your trash (without a warrant). As to phone calls, remember Washington is also the state where the facts went down in the infamous case of Olmstead v. U.S., 277 U.S. 438 (1928) - the feds were tapping Olmstead's calls, though state law prevented wiretapping, even way back in '28. So, in sum, Sanders is kinda right.

Justice Sanders, long before being elevated to the Supreme Court, was also involved in what is apparently the only case to consider whether Tarasoff's duty to warn principle applies to the confidential attorney-client relationship. And look at him now! I love this state.
1.18.2008 4:27pm
BRM:
Justice Sanders is quite famous here in Washington for his libertarian iconoclasm and hyperbolic dissents and concurrences. We love him for this.
1.18.2008 4:37pm
theophilus (mail) (www):

Every time I hear the word "sedition", I hear Tevya belting out "tradition". I'm sure this happens to everyone else. Please tell me it does.



It may be a clue as to your age.


I think the very same thing. That song, as well as "If I were a rich man..." will be in my head the entire evening.

I may even undertake the "dance".

All this, and I'm only 23. What will I do when I really am old?
1.18.2008 5:48pm
Dave Hardy (mail) (www):
Who stops the fuzz when they want to search your car, and
Who ensures your bill of rights will extend so very far?
NO ONE!
Sedition! Seddittionnn...
1.18.2008 6:06pm
Crane (mail):

Every time I hear the word "sedition", I hear Tevya belting out "tradition". I'm sure this happens to everyone else. Please tell me it does.


I'd like to say it doesn't happen to me, but I think reading this thread may have changed that.

On the other hand, I can't hear a Fiddler on the Roof reference without thinking of the Lovecraftian parody Shoggoth on the Roof.

Who day and night must slumber in Rl'yeh
Wave his tentacles, dreaming nasty dreams
And who has the might as master of Rl'yeh
To drive humanity insane?
Cthulhu, Cthulhu!
Tentacles!
1.18.2008 6:56pm
MarkField (mail):

It may be a clue as to your age.


Oh great, thanks for that. At least I'm as young at heart as theophilus. But not as creative as Dave H.
1.18.2008 6:59pm
Steve Eugster (mail):
Often the Washington Supreme Court has used the "police power" in ways which have threatened and in some instances trumped the Declaration of Rights set forth in the Washington State Consititution. What is superior, the Declaration of Rights or the "police power"? If the police power is ascendent then what do we have? Certainly not a government of law. Rather, we have a government based the "judgment of power." Nazi Germany had a government based on the judgment of power. Use of the police power to overcome the Washington Declaration of Rights is, in simple point of fact, seditious.
1.18.2008 8:56pm
SeattleSolicitor:
BRM: Famous, yes, but some of us find both his opinions and his style quite unjudicious. The Sander/Johnson dissents tend to get so caught up in their own rhetoric and brimstone that they reach quite outrageous conclusions. If your goal is to stoke a populist uprising brimstone will do the trick. But I can't help but think Sanders would have better luck fashioning a majority if his goal was to see cases decided reasonably, rather than to feed his feelings of righteousness.

Sanders has all the fire of Scalia, but none of his wit, charm or restraint.
1.19.2008 4:09pm
kietharch (mail):
I think SeattleSolicitor has got it right. Sanders/Johnson dissents? you mean
they agree on a dissent? I just watch the TV program; they seem like natural antagonists.
1.19.2008 6:58pm
Billy Bob:
While Sanders and Jim Johnson agree on many things, I don't think you can lump the two of them together. Johnson does, in fact, write many majority opinions. Sanders, on the other hand, dissents much more often (espescially in criminal cases where he is quick to find fault by the State).
1.21.2008 3:00pm

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