Wampum

Grave Injustice

I think it is safe to interpret the representation of William Myers that he is qualified to sit on the 9th Circuit Court of Appeals, given the self-awareness that he has never handled a criminal case and has never appeared before a jury, and the general awareness that the Courts of Appeals "try" the judges and attornies who tried juried criminal cases, generally from a position of greater subject matter (law and practice) expertise, that he is a man of faith. Great faith. A faith greater than a decade of trial court works, or two decades of trial court works, or three, or even four. There are persons in their 60s with four decades of works in the courts who William Myers holds himself out as the equal to, or superior of, not by his empty count of works and days, but by his faith alone, to sit on the 9th Circuit.

Since faith is the sine qua non of the moment, it is reasonable to ask what are, other than his ability to rise to the professional level of expertise, at the loss of life, liberty or fortune of no other person, that is the norm for 9th Circuit judges, the articles of faith of William Myers, III.

European funerary ritualism or burial ritualism has had the concept of a spatial locus for a very long time. The tombs of princes define lands, yards of churches parishs, and ossuaries the unworldly. Causes of action arise in Jewish, Greek, Roman, and Christian law courts for grave robbing.

The Institutes of Gaius, c. 160 A.D., holds that as soon as a body is buried in a tomb by its owner, the tomb and body become religiosus, consecrated to the gods of the underworld. Violation of any such thing is an act of sacrilege. The Institutes of Marcian, c. 310 A.D., sets the penalty for sacrilege as extra ordinem, crucifixion is allowed. The Duties of the Proconsul of Ulpian, c. 220 A.D., remarks that many have been "condemned to the wild beasts for sacrilege, some even burned alive, and others hanged on the gallows" for grave robbing. His Praetor's Edict from the same period has "the action for violation of a tomb entails infamia", i.e. "disgrace," a formal legal term entailing loss of important rights as well as gaining a severely poor reputation--the criminal becomes "infamous" and loses the right to represent himself or others in any court of law, and the right to stand for or hold any office. Ulpian continues that "by tomb we understand any place of burial". Septimius Severus, c 193 to 211 A.D., reinforced by decree that "corpses are not to be detained or molested" and that "provincial governors are to take severe action against those who despoil corpses". The Public Prosecutions of Macer, c. 230 A.D., holds that "the offense of violating a tomb can be said to come under the Lex Julia de vi publica ... (law against the use of force in public, such as any act of breaking and entering entails) ... where it is provided that nothing shall be done to prevent the occupant from being entombed". The Views of Paul, c. 220 A.D., concludes that "Those guilty of violating tombs, if they remove the bodies or scatter the bones, will suffer the supreme penalty."

Without the Paschal Mystery, the “redemptive death” and "resurrection", that is, a tomb emptied of a corpse three days after it was deposited there by agencies other than human, there would not be a lot left of Christianity.

If a person holds that grave robbing is malum prohibitum rather than malum in se, what is the faith of that person? It can't be Christianity. The Apostles had a lot to say about Jewish, Greek, and Roman law, but they didn't come out against the Lex Julia de vi publica and make sacrilige for the purpose of worldly gain an article of faith.

It has taken the American Republic the better part of a century to decide what to do about the social and pseudo-scientific acquisition of human remains, Indian, by non-Indians. NAGPRA has been the law of the United States now for 15 years.

The faith of nominee Myers is that grave robbing is malum prohibitum, and that NAGPRA prohibits nothing absolutely, and so it may be waived for a marginal cynaide leach gold mine, and the bodies, the funerary ritual objects -- bowls, rock inscriptions, and the tombs may be violated, without injury to his faith.

There is a very fine flute carved from a human femur from about 800 A.D. in the archaic shell middens at Sarasota, another has been found in a Hopewell context in Ohio, another still in Guyana (photo) and there are lots more in China. Nominee Myers could be a faithful Hopewellian, but he cannot be a faithful follower of the redemptively dead and resurrected one, a Christian.

Unless of course, he's a racist. One of those schismatics with "good news" for some and "not so good news" for others. I'll buy the assertion that nominee Myers is a man of racist faith. That seems a really safe proposition, and I oppose his nomination because of his faith.

[update: it is coincidental that Dwight and I both wrote on the subject today. His post is linked to, as it should be. Mine developes from Three sheets to the wind, about Myers and NAGPRA, When is a Hawai'ian a Hawai'ian?, which is about NAGPRA and Rice v Cayetano and/or the Akaka Bill, and Its not a molehill, if your Aunties are inside it, and things outside of Wampum. ebw]

Posted by EBW at April 27, 2005 09:57 AM | TrackBack