Florida Agricultural & Mechanical University College of Law

Abrams, Robert H

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Clients who seek legal assistance earlier in the repossession process preserve their options, which may include preventing the repossession altogether, allowing the client an opportunity to reclaim the vehicle after repossession, or limiting the client\u27s liability to the loss of the vehicle itself. Many of the actions considered by the attorney will be based on the provisions in Article 9 of the Uniform Commercial Code (U.C.C. or the Code). This article begins with a discussion of steps that may be taken to eliminate the need to resort to the U.C.C. Because these steps will not always be successful, the article also examines the protective provisions of the U.C.C. and how they have been interpreted and applied by various courts

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Florida A&M University College of Law
Scholarly Commons @ FAMU Law
Journal Publications Faculty Works
1988
An Eddy in the Colorado River Litigation
Robert H. Abrams
Florida A&M University College of Law, robert.abrams@famu.edu
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Part of the Environmental Law Commons, and the Water Law Commons
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Recommended Citation
Robert H. Abrams, An Eddy in the Colorado River Litigation, 1988-89 Preview U.S. Sup. Ct. Cas. 123 (1988)
WATER RIGHTS
An eddy in the Colorado Riverlitigation
by Robert H.Abrams
State ofcaliforn1a
v.
UnitedStates
(Docket No.87-1165)
ArgumentDate: Nov.28, 1988
ISSUES
Although the principal legal issuesinvolvejudicial juris-
diction and sovereign immunity, this Is a water law case in
disguise. The Issues arise In the course of ascertaining what
forum Isavailable Inwhich to dispute a determinationof the
secretary of Interiorthat fixed the boundariesof three Indian
reservations thatadjointhe Colorado River.
This particular case was Initiated by two California water
districts and later taken up by Arizona and California to
review those boundary determinations In ordinary federal
litigation commenced In U.S. District Court.The contesthas
little,Ifanything, to do with the Intrinsic legal significance of
the jurisdictional and Immunity Issues. It has to do with
allocating the waterofthe Colorado River.
FACfS
Even focusing on this case alone rather than on the
Colorado River litigation ofwhich ItIsa tinypart, the facts are
not simple.The secretary of InteriorIs empowered to Issue
administrative orders that determine the boundariesof Indl-
an reservations. Three such orders,one Issued In1969fixing
the boundaries of the Colorado River Indian Reservation,
one Issuedin 1974 fixingthe boundariesof the FortMojave
Indian Reservations and one issued In 1978 fixing the
boundaries of the Fort Yuma Indian Reservation, affect the
boundariesof reservations borderingthe ColoradoRiver.
seeking to challenge thoseorders,In 1981 the Metropoli-
tan (LosAngeles) WaterDistrict (MWD) and the Coachella
Valley Water District (later joined bythe statesof California
and Arizona) brought suit In the U.S. DistrictCourt for the
Southern District of California. The United States, joined by
the three tribes whose reservation boundaries were under
consideration, Interposed a variety of defenses to the pro-
ceedlngs themselves as well as to the rectitude of the
secretary's action on the merits. DUring the course of the
litigation, the UnitedStates, In reaction to eventsIn the U.S.
Robert H. Abrams is a professor of law at Wayne State
University School ofLaw,Detroit, MI48202; telephone (313)
577·3935.
Issue No. 5
SupremeCourtlitigation overthe allocation of the Colorado
River (see Arizona v. California II, 460 U.S. 605 (1983»,
withdrewmostof Itsobjections to the Instant proceeding.
In 1986Dlstrlct]udgeBrewster, in an unpublished mem-
orandum opinion, rejected the remaining non-merits de-
fenses and set aside the secretary's boundarydetermination,
announcing his Intention to determine the boundary de
novoInthe judicial proceeding.
At the same time, the districtcourt certified the case for
Immediate appeal to the U.S. Court of Appeals for the 9th
Circuit because that court and the 11th Circuit had held
recently that suits under the Quiet Title Act, and not suits
likethis one filedpursuant to the Administrative Procedures
Act, were the jurlsdlctlonal basis on which challenges to
reservation boundariesmust lie. The waiver of objections to
jurisdiction by the United States did not moot the Issue
because objections to the subject matter jurisdiction of
federal courtscannotbe waivedand can be raisedatanytime
beforefinal disposition byanyparty or bythe court Itself.
Based on Its recent prior jurisdictional ruling, the 9th
Circuit Court of Appeals held that the district court had
lacked jurisdlctlon to hear the case and must therefore
dismiss the complaint without reaching the merits of the
boundarydispute.
BACKGROUND ANDSIGNIFICANCE
The Colorado River litigation has asvenerablea history as
does any Interstate water dispute. It has continued since
1952, when the stateofArIzona Invoked the orlglnaljurlsdlc·
tlonof the U.S. Supreme Courtto determine Itsshare of the
Colorado's annual flow. Thlrty-slx years and one landmark
declslon (Arizona v. California I,373u.s. 546 (1963» later,
the case Is winding down with many of the water entltle-
ments settled. A truncated account of that litigation and Its
effect on states' water rights Is needed to place this case In
context.
The original SupremeCourtdecisionruled that the water
of the Colorado had been allocatedamongthe several states
through which the river flows by Congress when It passed
the BoulderCanyon Project Actof 1929. The precisealloca-
tions are not Important here except Insofar as California's
share,4.4millionacre-feet (MAF), Islessthan the amountof
waterthat Its waterusersareable to put to beneficialuse.The
Courtalso ruled that under the federal reservedwaterrights
doctrine, a number of federal enclaves along the river,
including several large Indian reservations, were also entl-
123
tled to have their water rights recognized and given legal
protection.
To the extentthat Indianand otherfederal reservedrights
were recognized, theywere to be charged against the allot-
ment of thestate in which they were located. Those Indian
reservations were deemed to have rights, which tracedback
tothe creation ofthe reservations, toas muchColorado River
water as was necessary to Irrigate the "practicably irrIgable
acreage" found within theirboundaries.
In order to quantify the Indian reservedrights, the acre-
age of lands deemed irrlgable Is multiplied by the water
duty-the amount ofwater needed to irrigate crops In that
locale. A necessary precursor to that determination Is the
fixing of theprecise reservation boundaries. It is that bound-
ary-settlng processthatgaverise tothe instant litigation, with
the MWD, Coachella Water District, California and Arizona
seekingreview of the Secretarial determinations.
The case thereforehas an apparent significance to Arizona
and California water users, who mayfind theirwater rights
subordinated to increased Indian claims that would attend
the quantlflcatlon of the Indian rights under the Secretarial
ordersmentionedabove.
This has long been a threat, but until nowArizona had
never used Its full share of water, and the California users
whomightbeat riskifthe IndianallocationIsIncreased have
beenable touse "ArIzona" watertosatisfytheirentitlements.
With the recent completion of the initial stages of the
Central ArIzona Project and the scheduled completion ofthe
remainderInprospect,thatsituation will change and Arizona
will begin taking its full share. Historically, the largestsingle
beneficiary ofthe "extra" flow was the MWD. Threatenedby
an increase In Indian entitlements under the Secretary's
boundary determinations, the MWD asserts that if Indian
rights are quantified onthe basisof the 1969, 1974 and 1978
orders, it will lose "about 104,000 acre-feet of diversions in
California, which is enough water to supplyabout 500,000
people annually in Metropolitan's servicearea."
Despite the M'X'D's thinly veiled assertion that the water
supply of one-halfmillion souls Is in issue In this case, the
SupremeCourt is considering only the question of whether
this particular proceeding is the proper one in which to
obtainreview of the boundarydeterminations.
The highcourt couldagree with the respondents that the
congressionally allocated Jurisdiction of the federal courts
doesnot permitreview In this setting and remit the petition-
ersto findanalternateavenuefor obtainingreview. Themost
likely option would be In the Supreme Court itself as the
next installment in the long-playing Colorado River litiga-
tion. Alternatively, the Court could reverse the 9th Circuit's
rulingand allowthe merits of theboundarydetermination to
be reviewed, either de novo, as proposed by the district
court, or onsome othermore deferential basis.
ARGUMENTS
For Metropolitan Water DIstrict, CoacbeQa Water DIs-
trict and the Stoles ofcaJUbrnla andArizona (counset of
124
Record, Jerome c. Mtlys, 1825 Eye sc N.\Vo, Suite 92D,
Washington, DC 20006,'telephone (202) 4294344)
1. The United States has by Its assertion of claims for
reservedwater rights to benefit the Indian reservations
waived Its sovereign immunity in litigation seeking to
review the boundary determinations affecting those
reservations.
2. The Administrative Procedure Act's (APA) waiver ofsov-
erelgn Immunityappliesin this case.
3. Even if the Quiet Title Act (QTA) makes this case an
exception to the general APA waiver of Immunity, the
federal government should have to prove that the lands
are "trustor restricted Indian lands"within the meaning
oftheQTA.
4. The decisionof the9th Circuit frustrates the congresslon-
al policyofthe McCarran Amendmentfavoring the order-
lydeterminationofIndianwater rightsclaims.
5. The boundarydisputespresentjusticiable controversies.
For the UnIIed States (Counsel of Record, Edwin S.
Kneedler, assistant to thesolicitorgenera~ U.S. Department
of Justice, Washington, DC 20530; telephone (202) 633-
2217)
1. Review ofa reservation boundarydeterminationmaynot
be had under the APA because a more specific statute
(the QTA) expressly grants consent to suitwhile forbid-
ding the reliefsoughtin thissuit.
2. Intervention by the United States in the Arizona v.
California SupremeCourt litigation to establish the exis-
tence of reservedwaterrightsdid not waive Its immunity
to thissuit.
For the Indian Tribes (Counsels ofRecord, Dale T. l'Vhite,
Whiteing, Thompson & White, 6684Gunpark Dr., Boulder,
CO 80301, telephone (303) 53()'1335, for the Fort Mojave
Tribe; William E. Strickland, Strickland & Altaffir, 700
Transamerica Bldg., Tucson, AZ 85701, telephone (602)
622,3661, for the Quechan (Fort Yuma) Tribe; Scott B.
McElroy, Greene, Meyer & McElroy, 1007 Pearl St, Suite
240, Boulder, CO 80302, telephone (303) 442-2021,for the
Colorado RiverTribes)
1. The United States has not waived Itsimmunity.
2. The APA does not waive immunity where the status of
trust lands are in Issue.
AMICUS BRIEFS
In Supportofthe UnIted States
The Klamath Tribe, Nez Prince Tribe, Swlnomlsh Tribal
Communityand other tribesarguethat:
1. The QTA prohibits third-party suitswhich seek to divest
the United Statesoftltle to Indianlands.
2. Even if the QTAwould allow this suit, broad Judicial
review would violate the historical obligation of the
UnitedStates to protect Indian lands. .
3. The waiver of immunity to assert Indian waterrightsdoes
not extendto ancillary proceedings.
PREVIEW


An Eddy in the Colorado River Litigation

Coleman, Sandy

Petition: Readmit Virgil Hawkins To Bar

Griffin, Ronald C

The Free Trade Agreement: It Muddles the Law

Bond, Bill

Few Whites At Funeral Of Civil Rights Pioneer

Florida A&M University College of Law
Scholarly Commons @ FAMU Law
Journal Publications Faculty Works
1987
Republicanism: How Can Blacks Revive a
Constitutional Dream?
Ronald C. Griffin
ronald.griffin@famu.edu
Follow this and additional works at: http://commons.law.famu.edu/faculty-research
This Article is brought to you for free and open access by the Faculty Works at Scholarly Commons @ FAMU Law. It has been accepted for inclusion in
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linda.barrette@famu.edu.
Recommended Citation
Ronald C. Griffin, Republicanism: How Can Blacks Revive a Constitutional Dream, 30 Howard L.J. 967 (1987)
Republicanism: How Can Blacks Revive
a Constitutional Dream?
RONALD C. GRIFFIN*
INTRODUCTION
Black Americans have not faired well under republicanism.' His-
tory supports the claim. Blacks were classified as property;2 denied
political participation in the country's affairs;3 subjected to physical
and economic servitude;' confined to segregated housing and second
rate educational systems.5
The social fallout left behind by these events has haunted genera-
tions of Black Americans. Legislation alone will not blow away this
fallout or erase its residual human effects. Social legislation, restruc-
turing our economy, and a new political vision inspired by the Consti-
tution are needed to give people a chance to grasp the good life.
* Ronald C. Griffin is a Professor of Law at Washburn University in Topeka, Kansas.
1. THE FEDERALIST No. 39, at 280 (J. Madison) (B. Wright ed. 1961); ELY, DEMOCRACY
AND DISTRUST 79 (1980). [hereinafter ELY] see also Sherry, Civic Virtue and the Feminine Voice
in ConstitutionalAdjudication," 72 VA. L. REV. 543, 550-562 (1986). [hereinafter Sherry]. Afro-
Americans derived no benefits from republicanism. They played no recorded role nor derived
any benefits from the decision to abandon republicanism for Lockean and Hobbsean ideas about
government. Sherry at 560-562; KOCH, JEFFERSON AND MADISON: THE GREAT COLLABORA-
TION 53-54 (1964); BLAUSTEIN AND ZANGRANDO, CIVIL RIGHTS and THE BLACK AMERICAN:
A DOCUMENTARY HISTORY 41-42 (1970). Many of the schemes discussed in this essay will not
help the Black under-class. Lcamann, Ghettos. What Has to be Done, The Wash. Post Nat'l
Wkly. ed., Sept. 22, 1986, at 29, col. 1. Education, transaction payments to cover the cost of
searching for work, provided over many generations, are the only things likely to help. Leamann
at 29, col. 3.
2. See Somerest v. Stewart, 98 Eng, Rep. 499 (1772); Smith v. Brown and Cooper, 91 Eng.
Rep. 566 (1702). Blackstone wrote an interesting commentary on the subject. Chitty's Black-
stone, Bk. 1, Chap. XIV 423-5 (1908).
3. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
4. Buchanan v. Warley, 245 U.S. 60 (1917); Shelly v. Kremer, 334 U.S. 1 (1948); Jones v.
Mayer, 392 U.S. 409, 444-469 (1967) (Douglas, J., concurring).
5. Brown v. Bd. of Educ., 347 U.S. 483 (1954).
HOWARD LAW JOURNAL
Republicanism
Republicanism is our constitutional inheritance.6 It is a regime of
peers: people with stable sources of income, e.g., farmers and busi-
nessmen, salesmen and clerks, participating in public affairs.7 Friend-
ship, good faith and justice are the subject matter of republican
discourse.8 Other subjects are added to republican discourse by
outside events.
Deep recessions, for example, can change the content of republi-
can discussions. If a recession destabilized a peer's source of income
or wiped him out, the peer might appeal to others for help. When
denial of a plea creates destitute people who en masse attack govern-
ment, this plea for help is transformed into a right: farmers get their
price supports; displaced workers get their unemployment insurance;
lower middle income Americans get their tax relief.
Republicanism works as long as the economy is healthy. When
the economy is unhealthy, republicanism is put in jeopardy. In 1987,
America's economy is unhealthy: trade deficits9 and foreign debt'
have crippled what republicans can do for peers. Big business how-
ever, has taken matters into its own hands. It has relocated plants
abroad;" hired foreign workers;' 2 invested capitol in industries em-
6. U.S. CONST. art. IV § 4. See supra note 1, ELY at 118-9, 122-3; Sherry supra note 1 at
554, 550-62, 592-613; Nedelsky, Confining Democratic Politics: Anti-Federalists, Federalists and
the Constitution, 96 HARV. L. REV. 340 (1982). Kenyon, Republicanism and Radicalism in the
American Revolution: An Old Fashion Interpretation, 19 WM. AND M.Q. 153 (1963).
7. See Ely supra note I at 79; KOCH, JEFFERSON and MADISON: THE GREAT COLLABO-
RATION 43-44 (1964).
8. Frank Michaelman, Professor of Law, Harvard University discussed the virtues ad-
mired by John Adams, Samuel Adams and Thomas Jefferson. Among the virtues listed were
friendliness, good faith, and justice. Lectures on Republicanism, presented by Frank
Michaelmann, Professor of Law, Harvard University, at the University of Western Ontario,
London, Ontario, Canada, June 2, 3, and 5, 1986. [hereinafter Michaelmann]. Part of the list
was presented to me in a conversation with the professor on June 4, 1986. The professor cited
another virtue, justice, in an article written by Hanna Pitkin. Pitkin, "Justice: On Relating Pri-
vate and Public," 9 POL. THEORY 327, 339 (1981).
9. THUROW, ZERO SUM SOLUTION 35-36 (1985). [hereinafter THUROW].
10. Id. at 35, n.9. What has happened to the United States is not unique. European coun-
tries have dealt with comparable economic reversals and tendered solutions like the ones contem-
porary Americans advocate. See NORD, PARIS SHOPKEEPERS AND THE POLITICS OF
RESENTMENT (1986). Joan Palevsky, Professor of Modern European History, University of
California at Los Angeles, wrote a review on this book. Palevsky, Business and Bigotry (Book
Review), THE NEW REP., Sept. 8, 1986 at 27.
11. BLUMBERG, INEQUALITY IN AN AGE OF DECLINE 152 (1980). [hereinafter
BLUMBERG].
[Vol. 30
REPUBLICANISM
ploying cheap labor;' 3 replaced American workers with machines; 4
extracted wage concessions from unions;' 5 and broken union con-
tracts.' 6 These events have driven up Black unemployment rates;' 7
driven Black women into the work force;' 8 disrupted Black family
life; 9 driven Black children into poverty;2" forced Black wage earners
to shoulder a heavier tax burden; t and limited the number of Black
people who can participate in public life.
12. See M. HARRINGTON, THE NEW AMERICAN POVERTY, 140 (1984). [hereinafter HAR-
RINGTON]. BLUMBERG supra note 11, at 154-6.
13. See BLUMBERG, supra note 11, at 155-6.
14. HARRINGTON, supra note 12, at 11.
15. See HARRINGTON, supra note 12, at 47-8.
16. E.g., Shopman's Local Union No. 455 v. Kevin Steel Products, Inc., 519 F 2d 698 (2nd
Cir. 1976); In Re Bildisco, 682 F.2d 72 (3rd Cir. 1982), cert. granted, 459 U.S. 1145 (1983). See
Note, The Bankruptcy Law's Effect on Collective Bargaining Agreements, 81 COLUM. L. REV.
391 (1981); Note, The Labor-Bankruptcy Conflict: Rejection of a Debtor's Collective Bargaining
Agreements, 80 MICH. L. REV. 134 (1981).
17. HARRINGTON supra note 12 at 49, 125, 126, 139. Black and white working classes and
their middle class counterparts have endured the same privations. Women in these classes have
responded to privation with work. Id. at 49, 129 and 139. But poor Black men and women, who
arrived in urban labor markets long after economic restructuring was underway, LODGE, NEW
AMERICAN IDEOLOGY 145 (1975), and HARRINGTON, supra note 12 at 129, 133, lost a chance to
do anything for themselves. Id. at 133. They lost social mobility. Id.
18. This observation is derived from Michael Harrington's and George Lodge's accounts of
Black poverty discussed supra note 17. Leamann and Kans have written about the pathology of
the poor and the ineffectiveness of government cures. Leamann, The Origin of the Under Class,
THE ATLANTIC, 31, (June 1986). Kans, The Work Ethic State, THE NEW REPUBLIC (July 7,
1986). See also Rich, Blacks at the Bottom: For An Underclass OfAlienated, Life Is Going To
Get Worse, The Wash. Post Nat'l Wkly., Feb. 3, 1986, at 10, col. I [hereinafter Rich]. See
HARRINGTON, supra note 12, at 49, 124, 139.
19. This observation is derived from Michael Harrington's account of poverty, HARRING-
TON, supra note 12. See also the appalling statistics on Black poverty, Black Family Income up
Five Percent in 1985, the Kans. City Times, Aug. 27, 1986, A3, col. 3. [hereinafter Black Family
Income]. See Rich supra note 18; HARRINGTON, supra note 12, at 124. In 1984, a family of four
was classified as poor if it had a cash income below $10,608. The overall Black poverty rate was
33.8 percent. Of the 2.1 million Black families below the poverty line, 1.5 million were headed by
women. THE WORLD ALMANAC AND BOOK OF FACTs 34 (1986). In 1985, the federal definition
of poverty amounted to an annual income below $5,469 for a single person; an annual income
below $22,083 for a family of nine or more; an annual income below $10,989 for a family of four.
Black Family Income, at A3, col. 4. The Black poverty rate was 33.1 percent. Id. at A3, col. 3.
Most of the poor were members of families headed by Black women that had seen better times.
Ehrenreich, Book Review, 257 THE ATLANTIC, 125-6, (April 1986).
20. See Mending Broken Families, The NEW REP., (Mar. 17, 1986); S. Res. 330-Establish-
ing a Special Committee on Families, Youth and Children, 99th Cong., Sess., 132 Cong. Rec. 859
(1986). See HARRINGTON, supra note 12 at 124. Long-Range Planning Committee to The
Board of Directors, NAACP Defense Fund, Inc., Rprt., p. 2, (Aug. 1985).
21. Income taxes pay for public services. If 33.1 percent of the population is unable to pay
taxes because of distitution, Black Family Income, supra note 19, at A3, col. 3, 66.9 percent is
paying its own share and the distitutes share of taxes.
HOWARD LAW JOURNAL
Economic Solutions
American wages should be structured so that a portion of them,
i.e., the bonus, is free of the payroll tax.22 Wages should be the sum of
a bonus and an amount dictated by a pay schedule adopted by the
employer. The frequency of the bonus would be dictated by the profits
of the employer. The amount of the bonus would be dictated by an
employee's diligence, proficiency and efficiency at his assigned task.
An employer's contribution to the unemployment insurance fund
should be taxed at a flat rate. An employer would not be taxed when
its business was flaging and its profits were eratic. Healthy employers
would be taxed up to an amount that is needed to reimburse the fund.
Elected officials should amend the Tax Code to permit people to
take advantage of employee stock option plans.23 When shares of
stock are placed into the hands of a trustee, until a payout date or
employee retirement, purchasing stock in one's company should be
treated like employee pensions under the Code. Everytime an em-
ployee purchases stock the employer should get a tax credit.
The Tax Code should be amended to neutralize inflation's affect
upon income taxes.24 Exemptions, deductions and credits should be
indexed by the government. Taxpayers could be given the authority to
index their net income before computing their tax. The government
could make annual adjustments (confining indexation to a portion of
the inflationary spiral, e.g., eighty percent of the year's inflation rate).
The government could index the Code when the rate of inflation ex-
ceeds a stated level, or tax people on their inflated income and restore
what inflation took away with a tax cut.
These schemes build up domestic investment capital; lower inter-
est rates; provide American businesses with an alternative to borrow-
ing money from foreign concerns. They create opportunities for
businesses to invest in their plants and save; create opportunities for
22. THUROW, supra note 9, at 160-3. The bonus would provide workers with an incentive
to be diligent and proficient at work. It would lower an employer's turnover rate; allow the
employer to fix the cost of labor by contract; promote employee efficiency and opportunities for
the employer to win back customers lost to foreign competition.
23. For a discussion of the Internal Revenue Service regulation implementing employee
stock option plans read 8 Fed. Taxes (P-H) 34,984 and 34,985.30 (1986). For a general discus-
sion of the law on the subject read 5 Fed. Taxes (P-H) 19,327 and 19,328 (1986).
24. TANZI, INFLATION, AND THE PERSONAL INCOME TAX: AN INTERNATIONAL PER-
SPECTIVE 1-2 (1980). See Griffin, Book Review, 15 INT'L LAW. 748 (1982).
[Vol. 30970
REPUBLICANISM
wage earners to buy consumer goods or save; reward workers for dili-
gence, proficiency and efficiency at work. They help people predict
their income. They create opportunities for business to win back cus-
tomers lost to foreign competitors.
Social Legislation
Good faith and justice are subjects of republican discourse. 25 Oc-
casionally, outside events force Republicans to discuss other subjects.
When legislation is the outcome of these discussions the final product
should bear the features of justice, e.g., intelligible statements about
how people ought to behave; 26 statements containing a ratio for the
distribution of social goods;2 7 statements supplying people with things,
e.g., training, improving their station in life;2  statements which bring
people closer to a "pure legal existence."29
In the case of distressed farmers and income taxes, elected offi-
cials should allow them to "income average" in years they experience
dramatic swings in income; to use "loss carryback" figures to recover
money given to the federal government in taxes; to use "loss carryfor-
ward" figures to limit their tax liability in future years.
In the case of displaced workers, States should administer the Job
Training and Partnership Act under performance based contracts.
When a business promises to retain a displaced worker (teach him a
marketable skill, test his proficiency, place him in a job), the right to
payment accrues when the worker is taught, tested and placed.
The government should establish a voucher system for unem-
ployed, semi-skilled and displaced workers.3° All the workers would
get a twelve-thousand dollar voucher. The vouchers would be used by
the workers to pay for training in skills certified by the government as
"needed training" in growth industries. When a phase of training was
25. Michaelmann, supra note 8.
26. Ernest Weinrib, Professor of Law, University of Toronto, discussed the features of jus-
tice in a series of lectures delivered at the University of Western Ontario in 1986 Lectures, The
Philosophy of Private Law, presented by Ernest Weinrib, Professor of Law, University of Western
Ontario, London, Ontario, Canada, June 1, 3, and 5, 1986 [hereinafter Weinrib]. His observa-
tions about justice were discussed in considerable detail in the lectures presented on June I and 3,
1986. The lectures covered both Aristotle and Aquinas's observations about justice.
27. Id.
28. RAWLS, A THEORY OF JUSTICE 302 (1976).
29. Smith, In Memoriam: Professor Frank D. Reeves, 18 How. L. J. 1, 5 (1973).
30. THUROW, supra note 12, at 205-6.
HOWARD LAW JOURNAL
completed, the government could make partial payment to the trainer.
At the end of four years full payment would accrue provided: the
voucher was presented for acceptance; all phases of training were com-
pleted; the trainee was employed by the trainer or shown to be
employable.
These schemes simultaneouly provide a business with an incen-
tive to train displaced workers and provide displaced workers with
proper training. They supply farmers with cash to fund the transition
from one regime of property (unstable) to another (stable). They
cushion a farmer's fall from grace in bad times. They buy a farmer
time to assess the feasibility of continuing in farming. They bring peo-
ple close to a pure legal existence, a source of income, a sense of stabil-
ity, community membership and participation in a republican state.
Domestic Relations
Families should be redefined as customary relationships protected
by the ninth amendment."1 When exigencies disrupt family life the
government would have the right to make a contract with the parents
to care for children, or take a child from its parents and contract with
foster parents to provide care. The arrangement between the parties
would be a third-party beneficiary contract. The parents would be
government agents charged with a duty to provide a youngster with
food and clothing, shelter and education. 32 Damages would accrue to
31. The ninth amendment provides: "The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by the people." U.S. CONST.
amend. IX. That means that people retain rights which deserve the respect accorded enumerated
rights in the first eight amendments: e.g., English civil traditions adopted by the colonialists
between 1776 and 1787; neutral principles extracted from domestic relations cases decided by the
Supreme Court; priciples deduced from moral reasoning. See 5 WRITINGS OF JAMES MADISON
271-272 (Hunt ed. 1904); 1 Annals of Cong. 435-9 (1789); 3 J. STOREY, COMMENTARIES ON THE
CONSTITUTION OF THE UNITED STATES 1861 (1833); Wechsler, Towards Neutral Principles of
Constitutional Law, 73 HARV. L. REV. 1 (1959). Cf. ELY, supra note 1, at 35-6, 54-5, 56-60, 60-
3.
32. A contract comes into existence when the government retains foster parents to provide
child care. Mayberry v. Pryor, 374 N.W.2d 683, 685-6 (Mich. 1985). The government can make
a contract with the parents provided: (a) it promises forebearance, i.e., abandons at right to take
custody of a neglected child; (b) it solicits a promise from the parents, i.e., to do what they are
instructed to do by the government; (c) the parents promise to comply with government instruc-
tions. The promise and the forebearance are consideration. Restatement (Second) of Contracts
§ 71. The parent's promise differs from a pre-existing duty. Cf. Watkins and Son v. Carrig, 21
A.2d 591 (N.H. 1941), in which the court discussed a type of performance to overcome the pre-
existing rule. See also Richards Constr. Co. v. Air Conditioning Co. of Hawaii, 318 F.2d 410
(9th Cir. 1963); Restatement (Second) of Contracts § 73. A contract could come into existence
[Vol. 30
REPUBLICANISM
children when parents breached the agreement. The children would
get all the damages the parents could foresee at the time of contract
formation.
This scheme ties family relationships to the Constitution. It out-
lines parental and community obligations to children. It provides pro-
spective adults and children with an opportunity to get the nutrition
and education they need to secure jobs, income and time to participate
in public affairs.
CONCLUSION
Black Americans built the South. They were the last group to
take advantage of the industrial revolution. The social profile of
Blacks resembles recent immigrants. Their pleas for help are the
same: e.g., access to community membership; government protection
against those who would use mob violence to dissuade them from ex-
ercising community rights; access to training which leads to jobs, in-
come and time to participate in public life.
The tax schemes, proposals to restructure the family and the
wage and contracts to administer social programs are Republican re-
sponses to a desperate people's plea for help. Thus Republicanism is a
way for people, who prize virtue, pursue friendship, good faith and
justice.
when the government suspects the parents of child abuse or child neglect; the government proves
that the parents are guilty of one of these offenses with clear and convincing evidence; the parents
are accorded procedural due process. See Santosky v. Kramer, 455 U.S. 745 (1982).
19871



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