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245. Extent of laws made by Parliament and by the Legislatures of States.—(1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State.

 * (2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extraterritorial operation.

246. Subject-matter of laws made by Parliament and by the Legislatures of States.—(1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the “Union List”).

 * (2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State *** also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the “Concurrent List”).

 * (3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the “State List”).

 * (4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included [in a State] notwithstanding that such matter is a matter enumerated in the State List.

['''246A. Special provision with respect to goods and services tax.'''—(1) Notwithstanding anything contained in articles 246 and 254, Parliament, and, subject to clause (2), the Legislature of every State, have power to make laws with respect to goods and services tax imposed by the Union or by such State.

 * (2) Parliament has exclusive power to make laws with respect to goods and services tax where the supply of goods, or of services, or both takes place in the course of inter-State trade or commerce.

 * Explanation.—The provisions of this article, shall, in respect of goods and services tax referred to in clause (5) of article 279A, take effect from the date recommended by the Goods and Services Tax Council.]

247. Power of Parliament to provide for the establishment of certain additional courts.— Notwithstanding anything in this Chapter, Parliament may by law provide for the establishment of any additional courts for the better administration of laws made by Parliament or of any existing laws with respect to a matter enumerated in the Union List.

248. Residuary powers of legislation.—(1) [Subject to article 246A, Parliament] has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List.

 * (2) Such power shall include the power of making any law imposing a tax not mentioned in either of those Lists.

249. Power of Parliament to legislate with respect to a matter in the State List in the national interest.—(1) Notwithstanding anything in the foregoing provisions of this Chapter, if the Council of States has declared by resolution supported by not less than two-thirds of the members present and voting that it


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 {| cellpadding="1" style="margin:1em auto;"
 * rowspan="2"| LITTLE BLUE BOOK NO.
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Rh

The life of a man or woman is the story of their thoughts and actions; Ralph Waldo Emerson has therefore given us his life in his writings; and thus has he become immortal. A beautiful chaplet, gathered along the highway of life, from which, in this book, a few of the rarest flowers are plucked.

That we are here to learn, that life is a school of experience, formed the foundation of Emerson's thoughts. "The world," he writes, "exists for the education of each man. There is no age, or state of society, or mode of action in history, to which there is not somewhat corresponding in his life. Everything tends in a wonderful manner to abbreviate itself and yield its own virtue to him. He should see that he can live all history in his own person. He must sit solidly at home, and not suffer himself to be bullied by kings or empires, but know that he is greater than all the geography and all the government of the world; he must transfer the point of view from which history is commonly read, from Rome, and Athens, and London, to himself, and not deny his conviction that he is the court, and if England or Egypt have anything to say to him, he will try the case; if not, let them forever be silent. He must attain and maintain that lofty sight


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 is necessary or expedient in the national interest that Parliament should make laws with respect to [goods and services tax provided under article 246A or] any matter enumerated in the State List specified in the resolution, it shall be lawful for Parliament to make laws for the whole or any part of the territory of India with respect to that matter while the resolution remains in force.

 * (2) A resolution passed under clause (1) shall remain in force for such period not exceeding one year as may be specified therein:

 * Provided that, if and so often as a resolution approving the continuance in force of any such resolution is passed in the manner provided in clause (1), such resolution shall continue in force for a further period of one year from the date on which under this clause it would otherwise have ceased to be in force.

 * (3) A law made by Parliament which Parliament would not but for the passing of a resolution under clause (1) have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the resolution has ceased to be in force, except as respects things done or omitted to be done before the expiration of the said period.

250. Power of Parliament to legislate with respect to any matter in the State List if a Proclamation of Emergency is in operation.—(1) Notwithstanding anything in this Chapter, Parliament shall, while a Proclamation of Emergency is in operation, have power to make laws for the whole or any part of the territory of India with respect to [goods and services tax provided under article 246A or] any of the matters enumerated in the State List.

 * (2) A law made by Parliament which Parliament would not but for the issue of a Proclamation of Emergency have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the Proclamation has ceased to operate, except as respects things done or omitted to be done before the expiration of the said period.

251. Inconsistency between laws made by Parliament under articles 249 and 250 and laws made by the Legislatures of States.—Nothing in articles 249 and 250 shall restrict the power of the Legislature of a State to make any law which under this Constitution it has power to make, but if any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament has under either of the said articles power to make, the law made by Parliament, whether passed before or after the law made by the Legislature of the State, shall prevail, and the law made by the Legislature of the State shall to the extent of the repugnancy, but so long only as the law made by Parliament continues to have effect, be inoperative.

252. Power of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State.—(1) If it appears to the Legislatures of two or more States to be desirable that any of the matters with respect to which Parliament has no power to make laws for the States except as provided in articles 249 and 250 should be regulated in such States by Parliament by law, and if resolutions to that effect are passed by all the Houses of the Legislatures of those States, it shall be lawful for Parliament to pass an act for regulating that matter accordingly, and any Act so passed shall apply to such States and to any other State by which it is adopted afterwards by resolution passed in that behalf by the House or, where there are two Houses, by each of the Houses of the Legislature of that State.

 * (2) Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of that State.

253. Legislation for giving effect to international agreements.—Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.


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 '''254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States.'''—(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

 * (2) Where a law made by the Legislature of a State *** with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:

 * Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.

255. Requirements as to recommendations and previous sanctions to be regarded as matters of procedure only.—No Act of Parliament or of the Legislature of a State ***, and no provision in any such Act, shall be invalid by reason only that some recommendation or previous sanction required by this Constitution was not given, if assent to that Act was given—
 * (a) where the recommendation required was that of the Governor, either by the Governor or by the President;
 * (b) where the recommendation required was that of the Rajpramukh, either by the Rajpramukh or by the President;
 * (c) where the recommendation or previous sanction required was that of the President, by the President.

256. Obligation of States and the Union.—The executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.

257. Control of the Union over States in certain cases.—(1) The executive power of every State shall be so exercised as not to impede or prejudice the exercise of the executive power of the Union, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.

 * (2) The executive power of the Union shall also extend to the giving of directions to a State as to the construction and maintenance of means of communication declared in the direction to be of national or military importance:

 * Provided that nothing in this clause shall be taken as restricting the power of Parliament to declare highways or waterways to be national highways or national waterways or the power of the Union with respect to the highways or waterways so declared or the power of the Union to construct and maintain means of communication as part of its functions with respect to naval, military and air force works.

 * (3) The executive power of the Union shall also extend to the giving of directions to a State as to the measures to be taken for the protection of the railways within the State.


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 :(4) Where in carrying out any direction given to a State under clause (2) as to the construction or maintenance of any means of communication or under clause (3) as to the measures to be taken for the protection of any railway, costs have been incurred in excess of those which would have been incurred in the discharge of the normal duties of the State if such direction had not been given, there shall be paid by the Government of India to the State such sum as may be agreed, or, in default of agreement, as may be determined by an arbitrator appointed by the Chief Justice of India, in respect of the extra costs so incurred by the State.

[257A. Assistance to States by deployment of armed forces or other forces of the Union.].— Omitted by the Constitution (Forty-fourth Amendment) Act, 1978, s. 33 (w.e.f. 20-6-1979).

258. Power of the Union to confer powers, etc., on States in certain cases.—(1) Notwithstanding anything in this Constitution, the President may, with the consent of the Government of a State, entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive power of the Union extends.

 * (2) A law made by Parliament which applies in any State may, notwithstanding that it relates to a matter with respect to which the Legislature of the State has no power to make laws, confer powers and impose duties, or authorise the conferring of powers and the imposition of duties, upon the State or officers and authorities thereof.

 * (3) Where by virtue of this article powers and duties have been conferred or imposed upon a State or officers or authorities thereof, there shall be paid by the Government of India to the State such sum as may be agreed, or, in default of agreement, as may be determined by an arbitrator appointed by the Chief Justice of India, in respect of any extra costs of administration incurred by the State in connection with the exercise of those powers and duties.

['''258A. Power of the States to entrust functions to the Union.'''—Notwithstanding anything in this Constitution, the Governor of a State may, with the consent of the Government of India, entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive power of the State extends.]

259. [Armed Forces in States in Part B of the First Schedule.]—Omitted by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch.(w.e.f. 1-11-1956).

260. Jurisdiction of the Union in relation to territories outside India.—The Government of India may by agreement with the Government of any territory not being part of the territory of India undertake any executive, legislative or judicial functions vested in the Government of such territory, but every such agreement shall be subject to, and governed by, any law relating to the exercise of foreign jurisdiction for the time being in force.

261. Public acts, records and judicial proceedings.—(1) Full faith and credit shall be given throughout the territory of India to public acts, records and judicial proceedings of the Union and of every State.

 * (2) The manner in which and the conditions under which the acts, records and proceedings referred to in clause (1) shall be proved and the effect thereof determined shall be as provided by law made by Parliament.

 * (3) Final judgments or orders delivered or passed by civil courts in any part of the territory of India shall be capable of execution anywhere within that territory according to law.


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 forehead of the High Priest. And whence the adduction that textile fabrics are also subject to becoming defiled? From the passage [Lev. xi. 32], "or" raiment, which includes any textile fabrics whatsoever.

The rabbis taught: "Any piece of textile fabric or any trifle of an ornament is subject to defilement." But how is it with an article which is half texture and half ornament? It is also subject to defilement. As for an ornament which is carried in a bag, the bag being of woven material becomes defiled and with it the ornament, but if the ornament was carried in a piece of cloth, the cloth remains undefiled. Is a piece of cloth not a textile fabric? Yea, but by that is meant that the bag, even if not made of textile fabric, becomes defiled, because it is attached to the garment. What is a bag used for? Said R. Johanan: Poor people use them for the purpose of putting some trifles in them and then hang them on the necks of their daughters.

It is written "And Moses was wroth with the officers of the host" [Numb. xxxi. 14]. Said R. Na'hman in the name of Rabba b. Abuhu: "Thus said Moses unto Israel: 'Have ye then returned to your first sin (that ye have let the females live)?'" They answered him [ibid. 49]: "Thy servants have taken the sum of the men of war who have been under our command, and there lacketh not one man of us" (implying that none had sinned). Said Moses again: "If such be the case, why need ye atonement?" They answered: "Though we have strengthened ourselves to keep aloof from sin, we could not put it out of our minds. We have therefore [ibid. 50] brought an oblation unto the Lord." On this the school of R. Ishmael taught: Why did the Israelites of that generation require forgiveness? Because they had feasted their eyes on strange women.

 * A woman may go out with plaits of hair, be they made of her own hair or of another woman or of an animal; with Totaphoth or Sarbitin if fastened. With a hood or with a wig in her yard (private ground); with cotton wadding in her ear or in her shoe; or with cotton wadding prepared for her menstruation; with a grain of pepper or of salt, or with whatever else she may be accustomed to keep in her mouth, provided she does not put it in her mouth on the Sabbath to


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 262. Adjudication of disputes relating to waters of inter-State rivers or river valleys.—(1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley.

(2) Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause (1).

263. Provisions with respect to an inter-State Council.—If at any time it appears to the President that the public interests would be served by the establishment of a Council charged with the duty of—
 * (a) inquiring into and advising upon disputes which may have arisen between States;
 * (b) investigating and discussing subjects in which some or all of the States, or the Union and one or more of the States, have a common interest; or
 * (c) making recommendations upon any such subject and, in particular, recommendations for the better co-ordination of policy and action with respect to that subject,

it shall be lawful for the President by order to establish such a Council, and to define the nature of the duties to be performed by it and its organisation and procedure.

[264. Interpretation.—In this Part, “Finance Commission” means a Finance Commission constituted under article 280.]

265. Taxes not to be imposed save by authority of law.—No tax shall be levied or collected except by authority of law.

266. Consolidated Funds and public accounts of India and of the States.—(1) Subject to the provisions of article 267 and to the provisions of this Chapter with respect to the assignment of the whole or part of the net proceeds of certain taxes and duties to States, all revenues received by the Government of India, all loans raised by that Government by the issue of treasury bills, loans or ways and means advances and all moneys received by that Government in repayment of loans shall form one consolidated fund to be entitled “the Consolidated Fund of India”, and all revenues received by the Government of a State, all loans raised by that Government by the issue of treasury bills, loans or ways and means advances and all moneys received by that Government in repayment of loans shall form one consolidated fund to be entitled “the Consolidated Fund of the State”.

(2) All other public moneys received by or on behalf of the Government of India or the Government of a State shall be credited to the public account of India or the public account of the State, as the case may be.

(3) No moneys out of the Consolidated Fund of India or the Consolidated Fund of a State shall be appropriated except in accordance with law and for the purposes and in the manner provided in this Constitution.

267. Contingency Fund.—(1) Parliament may by law establish a Contingency Fund in the nature of an imprest to be entitled “the Contingency Fund of India” into which shall be paid from time to time such sums as may be determined by such law, and the said Fund shall be placed at the disposal of the President


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 commence with; if it fell out of her mouth she must not replace it. As for a metal or golden tooth, Rabbi permits a woman to go out with it, but the sages prohibit it.

 * It has been taught: "Provided a young woman does not go out with (plaits of hair belonging to) an old woman; nor an old woman with plaits of hair belonging to a young woman." So far as an old woman is concerned, it would be nothing but right, for the plaits of a young woman would be a source of pride to her (and there is fear of her taking them off to show to others); but why should a young woman be prohibited to go out with plaits belonging to an old woman? They are a disgrace to her (and surely she would not take them off for exhibition)! The teacher while treating on plaits with respect to an old woman also makes mention of the case of a young woman (for the sake of antithesis).

"With a hood or a wig in her yard." Said Rabh: "Everything prohibited by the sages to be worn on public ground must not be worn in the yard, save a hood and a wig." R. Anani b. Sasson in the name of R. Ishmael said: "Everything may be worn in the yard like a hood. But why does Rabh discriminate in favor of these objects?" Said Ulla: "In order that she may not become repulsive to her husband."

"And with cotton in her ears or in her shoes." Romi b. Ezekiel taught only when tied to her ears or her shoes.

"And cotton wadding prepared for her menstruation." "In this case," said Rabha, even if it is not tied it may be worn, because, being disgusting, it will not be handled." R. Jeremiah b. R. Abba questioned Rabha: "How is it if the same was prepared with a handle?" And he answered: "Then it is also allowed." And so also it was taught by R. Na'hman b. Oshia in the name of R. Johanan.

R. Johanan went to the college with cotton wadding in his ears on Sabbath, and his colleagues objected to it. R. Joni went into unclaimed ground with it against the opinion of all his contemporaries.

"With a grain of pepper or a grain of salt." The former to take away any bad odor of the breath and the latter as a remedy for toothache.

"Or with whatever else she is accustomed to keep in her mouth," meaning ginger or cinnamon.

"A metal or a gilt tooth," etc. Said R. Zera: They differ concerning a gold tooth only, for a silver tooth is unanimously


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 permitted. And so we have learned plainly in a Boraitha. Said Abayi: Rabbi, R. Eliezer, and R. Simeon b. Elazar, all three agree to the opinion that anything provoking disgust (or ridicule) a woman will not wear for show: Rabbi, as just cited; R. Eliezer, as he freed a woman bearing a box of cachous or a perfume bottle; R. Simeon b. Elazar, as we have learned in the following Boraitha: "Anything below the hair-net is permitted to be worn outside."

 * Women may go out with a coin fastened to a swelling on their feet; little girls may go out with laces on and even with screws in their ears. Arabians may go out in their long veils and Medians in their mantillas; so may even all women go out, but the sages spoke of existing customs. She may fold her mantilla around a stone, nut, or a coin (used as buttons), provided she does it not especially on the Sabbath.

 * "Little girls may go out with laces." The father of Samuel did not permit his daughters to go out with laces nor to sleep together; he made bathing-places for them during the month of Nissan, and curtains during the month of Tishri. "He did not permit them to go out with laces?" Were we not taught that girls may go out with laces? The daughters of Samuel's father wore colored (fancy) laces and (lest they, take them off to show to others) he did not permit them to go out with them.

"Fold her mantilla around a stone," etc. But did not the first part (of the Mishna) say that she may fold it, etc.? Said Abayi, the last part of the Mishna has reference to a coin (which is not permitted). Abayi questioned: May a woman fold her mantilla on Sabbath shrewdly around a nut for the purpose of bringing it to her little son? And this question is according to both; to him who permits subtilty in case of fire, and also according to him who forbids it. According to him who permits it, it may be that only in case of fire he permits, as if it were not allowed, he would extinguish it; but this is not the case here. And according to him who prohibits it, it may be that he does so because the clothing seller usually so bears the clothes; but here, as it is not the custom to bear it so, it may be that it is permitted? The question remains.

 * The cripple may go out with his wooden leg; such is the decree of R. Meir, but R. Jossi prohibits it. If the wooden leg has a receptacle for pads, it is subject to


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 to enable advances to be made by him out of such Fund for the purposes of meeting unforeseen expenditure pending authorisation of such expenditure by Parliament by law under article 115 or article 116.

 * (2) The Legislature of a State may by law establish a Contingency Fund in the nature of an imprest to be entitled “the Contingency Fund of the State” into which shall be paid from time to time such sums as may be determined by such law, and the said Fund shall be placed at the disposal of the Governor *** of the State to enable advances to be made by him out of such Fund for the purposes of meeting unforeseen expenditure pending authorisation of such expenditure by the Legislature of the State by law under article 205 or article 206.

268. Duties levied by the Union but collected and appropriated by the States.—(1) Such stamp duties *** as are mentioned in the Union List shall be levied by the Government of India but shall be collected—
 * (a) in the case where such duties are leviable within any [Union territory], by the Government of India, and
 * (b) in other cases, by the States within which such duties are respectively leviable.

 * (2) The proceeds in any financial year of any such duty leviable within any State shall not form part of the Consolidated Fund of India, but shall be assigned to that State.

268A. [Service tax levied by Union and collected and appropriated by the Union and the State.].—Omitted by the constitution (One Hundred and First Amendment) Act, 2016, s. 7 (w.e.f. 16-9-2016).

269. Taxes levied and collected by the Union but assigned to the States.— [(1) Taxes on the sale or purchase of goods and taxes on the consignment of goods [except as provided in article 269A] shall be levied and collected by the Government of India but shall be assigned and shall be deemed to have been assigned to the States on or after the 1st day of April, 1996 in the manner provided in clause (2).

 * Explanation.—For the purposes of this clause,—
 * (a) the expression "taxes on the sale or purchase of goods" shall mean taxes on sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter-State trade or commerce;
 * (b) the expression “taxes on the consignment of goods” shall mean taxes on the consignment of goods (whether the consignment is to the person making it or to any other person), where such consignment takes place in the course of inter-State trade or commerce.

 * (2) The net proceeds in any financial year of any such tax, except in so far as those proceeds represent proceeds attributable to Union territories, shall not form part of the Consolidated Fund of India, but shall be assigned to the States within which that tax is leviable in that year, and shall be distributed among those States in accordance with such principles of distribution as may be formulated by Parliament by law.]

 * [(3) Parliament may by law formulate principles for determining when a [sale or purchase of, or consignment of, goods] takes place in the course of inter-State trade or commerce.]

['''269A. Levy and collection of goods and services tax in course of inter-State trade or commerce.'''— (1) Goods and services tax on supplies in the course of inter-State trade or commerce shall


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 defilement. Crutches are subject to defilement by being sat or trodden upon; but one may go out with them on Sabbath and enter the outer court (of the Temple). The chair and crutches of a paralytic are subject to defilement, and one must not go out with them on the Sabbath nor enter the outer court (of the Temple). Stilts are not subject to defilement, but nevertheless one must not go out with them on Sabbath.

 * Rabha said to R. Na'hman: How are we to accept the teaching of the Mishna? Did R. Meir permit the cripple to go out with a wooden leg on the Sabbath and R. Jossi prohibit his doing so, or vice versa? Answered R. Na'hman: "I know not." "And how shall the Halakha prevail?" Answered R. Na'hman again: "I know not." It was taught: Samuel and also R. Huna begin the Mishna: "A cripple shall not," etc. And R. Joseph said: "As both sages read the Mishna so, we shall do the same." Rabha b. Shira, however, opposed: "Was he not aware that when R. Hanon b. Rabha taught so to Hyya, the son of Rabh, the father showed him with the movement of his hands to change the names? In reality Samuel himself has also receded from the former teaching, and has corrected: "A cripple may go out," so is the decree of R. Meir. [Hamoth, 101a.]

"And must not enter the outer court," etc. A Tana taught before R. Johanan that one may go in with them in the outer court. Said R. Johanan to him: I teach that a woman may perform the "Chalitza" with them (hence they are considered shoes), and you say he may go in with them to the outer court. Go and teach the contrary.

 * Boys may go out with bands and princes with golden belts; so may every one else, but the sages adduce their instances from existing customs.

 * What kinds of bands? Said Ada Mari in the name of R. Na'hman b. Baruch, who said in the name of R. Ashi b. Abhin, quoting R. Jehudah: "Wreaths of Puah roots." Said Abayi: "My mother told me that three of such wreaths give relief (in sickness), five of them produce a complete cure, and seven of them are even proof against witchcraft."

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 be levied and collected by the Government of India and such tax shall be apportioned between the Union and the States in the manner as may be provided by Parliament by law on the recommendations of the Goods and Services Tax Council.

 * Explanation.—For the purposes of this clause, supply of goods, or of services, or both in the course of import into the territory of India shall be deemed to be supply of goods, or of services, or both in the course of inter-State trade or commerce.

 * (2) The amount apportioned to a State under clause (1) shall not form part of the Consolidated Fund of India.

 * (3) Where an amount collected as tax levied under clause (1) has been used for payment of the tax levied by a State under article 246A, such amount shall not form part of the Consolidated Fund of India.

 * (4) Where an amount collected as tax levied by a State under article 246A has been used for payment of the tax levied under clause (1), such amount shall not form part of the Consolidated Fund of the State.

 * (5) Parliament may, by law, formulate the principles for determining the place of supply, and when a supply of goods, or of services, or both takes place in the course of inter-State trade or commerce.]

[270. Taxes levied and distributed between the Union and the States.— (1) All taxes and duties referred to in the Union List, except the duties and taxes referred to in articles [268, 269 and 269A], respectively, surcharge on taxes and duties referred to in article 271 and any cess levied for specific purposes under any law made by Parliament shall be levied and collected by the Government of India and shall be distributed between the Union and the States in the manner provided in clause (2).

 * [(1A) The tax collected by the Union under clause (1) of article 246A shall also be distributed between the Union and the States in the manner provided in clause (2).

 * (1B) The tax levied and collected by the Union under clause (2) of article 246A and article 269A, which has been used for payment of the tax levied by the Union under clause (1) of article 246A, and the amount apportioned to the Union under clause (1) of article 269A, shall also be distributed between the Union and the States in the manner provided in clause (2).]

 * (2) Such percentage, as may be prescribed, of the net proceeds of any such tax or duty in any financial year shall not form part of the Consolidated Fund of India, but shall be assigned to the States within which that tax or duty is leviable in that year, and shall be distributed among those States in such manner and from such time as may be prescribed in the manner provided in clause (3).

 * (3) In this article, “prescribed” means,—
 * (i) until a Finance Commission has been constituted, prescribed by the President by order, and
 * (ii) after a Finance Commission has been constituted, prescribed by the President by order after considering the recommendations of the Finance Commission.]

271. Surcharge on certain duties and taxes for purposes of the Union.—Notwithstanding anything in articles 269 and 270, Parliament may at any time increase any of the duties or taxes referred to in those articles [except the goods and services tax under article 246A,] by a surcharge for purposes of the Union and the whole proceeds of any such surcharge shall form part of the Consolidated Fund of India.

272. [Taxes which are levied and collected by the Union and may be distributed between the Union and the States.].–Omitted by the Constitution (Eightieth Amendment) Act, 2000, s. 4 (w.e.f. 9-6-2000).


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 some twenty years hence; and I hope that we shall live to see them just such lads as Jacques and Robert."

Marguerite clasped her hands together passionately.

"God forbid!" said she, "God forbid! If I thought it, I would strangle them with my own hands."

She quitted the room hastily, and went up stairs.

I could not help expressing to the woodman how much I pitied him for being chained for life to a partner of such ill-humour.

"Ah, Lord! monsieur, every one has his share of grievances, and Marguerite has fallen to mine. Besides, after all, she is only cross, and not malicious: the worst is, that her affection for two children by a former husband, makes her play the step-mother with my two sons; she cannot bear the sight of them; and, by her good will, they would never set a foot within my door. But on this point I always stand firm, and never will consent to abandon the poor lads to the


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 world's mercy, as she has often solicited me to do. In every thing else I let her have her own way; and truly she manages a family rarely, that I must say for her."

We were conversing in this manner, when our discourse was interrupted by a loud halloo, which rang through the forest.

"My sons, I hope!" exclaimed the woodman, and ran to open the door.

The halloo was repeated. We now distinguished the trampling of horses; and, soon after, a carriage attended by several cavaliers stopped at the cottage door. One of the horsemen enquired how far they were still from Strasbourg. As he addressed himself to me, I answered in the number of miles which Claude had told me; upon which a volley of curses was vented against the drivers for having lost their way. The persons in the coach were now informed of the distance of Strasbourg; and also that the horses were so fatigued as to be incapable of proceeding further. A lady, who ap-


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 peared to be the principal, expressed much chagrin at this intelligence; but as there was no remedy, one of the attendants asked the woodman whether he could furnish them with lodging for the night.

He seemed much embarrassed, and replied in the negative; adding, that a Spanish gentleman and his servant were already in possession of the only spare apartments in his house. On hearing this, the gallantry of my nation would not permit me to retain those accommodations of which a female was in want. I instantly signified to the woodman, that I transferred my right to the lady: he made some objections, but I over-ruled them, and, hastening to the carriage, opened the door, and assisted the lady to descend. I immediately recognized her for the same person whom I had seen at the inn at Luneville. I took an opportunity of asking one of her attendants what was her name?

"The baroness Lindenberg," was the answer.


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 I could not but remark how different a reception our host had given these new-comers and myself. His reluctance to admit them was visibly expressed on his countenance; and he prevailed on himself with difficulty to tell the lady that she was welcome. I conducted her into the house, and placed her in the arm-chair which I had just quitted. She thanked me very graciously, and made a thousand apologies for putting me to an inconvenience. Suddenly the woodman's countenance cleared up.

"At last I have arranged it!" said he, interrupting her excuses. "I can lodge you and your suite, madam, and you will not be under the necessity of making this gentleman suffer for his politeness. We have two spare chambers, one for the lady, the other, monsieur, for you: my wife shall give up hers to the two waiting-women: as for the men servants, they must content themselves with passing the night in a large barn, which stands at a few yards distance from the house; there they shall have a blazing fire, and as


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 good a supper as we can make shift to give them."

After several expressions of gratitude on the lady's part, and opposition on mine to Marguerite's giving up her bed, this arrangement was agreed to. As the room was small, the baroness immediately dismissed her male domestics. Baptiste was on the point of conducting them to the barn which he had mentioned, when two young men appeared at the door of the cottage.

"Hell and furies!" exclaimed the first, starting back, "Robert, the house is filled with strangers!"

"Ha! there are my sons!" cried our host. "Why, Jacques! Robert! whither are you running, boys? There is room enough still for you."

Upon this assurance the youths returned. The father presented them to the baroness and myself; after which he withdrew with our domestics, while, at the request of the two waiting-women, Marguerite con-


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 ducted them to the room designed for their mistress.

The two new-comers were tall, stout, well-made young men, hard-featured, and very much sun-burnt. They paid their compliments to us in few words, and acknowledged Claude, who now entered the room, as an old acquaintance. They then threw aside their cloaks in which they were wrapped up, took off a leathern belt to which a large cutlass was suspended, and each drawing a brace of pistols from his girdle laid them upon a shelf.

"You travel well armed," said I.

"True, monsieur," replied Robert.—"We left Strasbourg late this evening, and 'tis necessary to take precautions at passing through this forest after dark; it does not bear a good repute, I promise you."

"How?" said the baroness, "are there robbers hereabout?"

"So it is said, madame: for my own part, I have travelled through the wood at


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 all hours, and never met with one of them."

Here Marguerite returned. Her stepsons drew her to the other end of the room, and whispered her for some minutes. By the looks which they cast towards us at intervals, I conjectured them to be enquiring our business in the cottage.

In the mean while, the baroness expressed her apprehensions that her husband would be suffering much anxiety upon her account. She had intended to send on one of her servants to inform the baron of her delay; but the account which the young men gave of the forest rendered this plan impracticable. Claude relieved her from her embarrassment: he informed her, that he was under the necessity of reaching Strasbourg that night; and that, would she trust him with a letter, she might depend upon its being safely delivered.

"And how comes it," said I, "that you are under no apprehension of meeting these robbers?"


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 "Alas! monsieur, a poor man with a large family must not lose certain profit because 'tis attended with a little danger; and perhaps my lord the baron may give me a trifle for my pains: besides, I have nothing to lose except my life, and that will not be worth the robbers taking."

I thought his arguments bad, and advised his waiting till the morning; but, as the baroness did not second me, I was obliged to give up the point. The baroness Lindenberg, as I found afterwards, had long been accustomed to sacrifice the interests of others to her own, and her wish to send Claude to Strasbourg blinded her to the danger of the undertaking. Accordingly, it was resolved that he should set out without delay. The baroness wrote her letter to her husband; and I sent a few lines to my banker, apprising him that I should not be at Strasbourg till the next day. Claude took our letters, and left the cottage.

The lady declared herself much fatigued by her journey: besides having


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Page:Henry Mulford Tichenor - A Guide to Emerson (1923).djvu/7

4 where facts yield their secret sense, and poetry and annals are alike. The instinct of the mind, the purpose of Nature, betrays itself in the use we make of the signal narrations of history. Time dissipates to shining ether the solid angularity of facts. No anchor, no cable, no fences, avail to keep a fact a fact. Babylon, Troy, Tyre, Palestine, and even early Rome are passing already into fiction. The Garden of Eden, the sun standing still in Gibeon, is poetry thenceforward to all nations. Who cares what the fact was, when we have made a constellation of it to hang in heaven an immortal sign? London and Paris and New York must go the same way. 'What is history,' said Napoleon, 'but a fable agreed upon?' This life of ours is stuck round with Egypt, Greece, Gaul, England, War, Colonization, Church, Court and Commerce, as with so many flowers and wild ornaments grave and gay. I will not make more account of them. I believe in Eternity. I can find Greece, Asia, Italy, Spain, and the Islands—the genius and creative principle of each and of all eras in my own mind."

Early in life Emerson was ordained a Unitarian minister; but his liberalism extended beyond the liberalism of that cult, and he left the pulpit.

He realized the independence that money brings—"If I were richer," he writes in his Journal of 1828, "I should lead a better life than I do. The chief advantages I should propose myself in wealth would be the independence of manner and conversation it would bestow, and which I eagerly covet."


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 Rh Ten years before the publication of Darwin's "Origin of Species," Emerson wrote in his book, "Nature," (1849): "I feel the centipede in me—cayman, carp, eagle and fox." He speaks of the worm "striving to be man," and of "an occult relation between the very scorpions and man." He was a naturalist, regardless of sacred writings or creeds; and discerned in Nature "that ineffable Essence which we call Spirit." He speaks of Nature as "the apparition of God." "The world," he writes, "is a divine dream from which we may presently awake to the glories and certainties of day." Emerson's transcendentalism is expressed when he speaks of Nature as "the organ through which the universal spirit speaks to the individual and strives to lead back the individual to it." He has the highest regard for the man Jesus; but calls the interpretation of the church the "noxious exaggeration about the person of Jesus. The soul knows no persons." The doctrine of mediation through Christ is classed as "this Eastern monarchy of Christianity."

"The richest romance," he writes, "the noblest fiction that was ever woven, lies enclosed in human life." In his Essay on History we read: "All inquiry into antiquity—all curiosity respecting the Pyramids, the excavated cities, Stonehenge, the Ohio Circles, Mexico, Memphis is the desire to do away with this wild, savage, and preposterous There or Then, and introduce in its place the Here and the Now. Belzom digs and measures in the mummy-pits and pyramids of Thebes, until he can see the end of the differcnce between the monstrous


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 come from some distance, the drivers had contrived to lose their way in the forest. She now addressed herself to Marguerite, desiring to be shewn to her chamber, and permitted to take half an hour's repose. One of the waiting-women was immediately summoned; she appeared with a light, and the baroness followed her up stairs. The cloth was spreading in the chamber where I was, and Marguerite soon gave me to understand that I was in her way. Her hints were too broad to be easily mistaken; I therefore desired one of the young men to conduct me to the chamber where I was to sleep, and where I could remain till supper was ready.

"Which chamber is it, mother?" said Robert.

"The one with green hangings," she replied. "I have just been at the trouble of getting it ready, and have put fresh sheets upon the bed: if the gentleman chooses to lollop and lounge upon it, he may make it again himself, for me."


text:
Page:New Edition of the Babylonian Talmud (Rodkinson) Volume 1.pdf/163

 have never seen sun, moon, or rain; never heard a hammer fall or a cock crow or the fall of footsteps."

Said R. Na'hman b. Itz'hak: "Thy bread is cast upon the deep" (meaning the remedy is an impossibility).

The rabbis taught: (Women) may go out with a Kutana stone (to prevent miscarriage) on the Sabbath. It was said in the name of R. Meir that they may even go out with the counterpoise of a Kutana stone, and not only such (women) as have already once miscarried, but even as a preventive to miscarriage, and not only when a woman is pregnant, but lest she become pregnant and miscarry. Said R. Jemar b. Shalmia in the name of Abayi: But the counterpoise must be an exact one and made in one piece.

 * It is permitted to go out with eggs of grasshoppers or with the tooth of a fox or a nail from the gallows where a man was hanged, as medical remedies. Such is the decision of R. Meir, but the sages prohibit the using of these things even on week days, for fear of imitating the Amorites.

 * The eggs of grasshoppers as a remedy for toothache; the tooth of a fox as a remedy for sleep, viz., the tooth of a live fox to prevent sleep and of a dead one to cause sleep; the nail from the gallows where a man was hanged as a remedy for swelling.

"As medical remedies," such is the decision of R. Meir. Abayi and Rabha both said: "Anything (intended) for a medical remedy, there is no apprehension of imitating the Amorites; hence, if not intended as a remedy there is apprehension of imitating the Amorites? But were we not taught that a tree which throws off its fruit, it is permitted to paint it and lay stones around it? It is right only to lay stones around it in order to weaken its strength, but what remedy is painting it? Is it not imitating the Amorites? (Nay) it is only that people may see it and pray for mercy. We have learned in a Boraitha: It is written [Leviticus, xiii. 45]: "Unclean, unclean, shall he call out." (To what purpose?) That one must make his troubles known to his fellow-men, that they may pray for his relief.

Rabhina said: The hanging up of a cluster of dates on a date


text: Author:Sutoku

title: Author:Sutoku


text:
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 tree (as a sign that the tree throws off its fruit) is in accordance with the above-mentioned teacher.

If one says: "Kill this cock, for he crowed at night; or kill this hen, for she crowed like a cock; or I will drink and leave a little over," because of superstition, there is apprehension that he imitate the Amorites; but one may put a splinter of "Tuth" or a piece of glass in a pot, that it may boil the quicker. The sages, however, prohibited pieces of glass as being dangerous. The rabbis taught: One may throw a handful of salt in a lamp that it may burn the brighter, or loam and fragments of earthenware that it may burn more slowly. The saying "to your health" at wine-drinking is no imitation of the customs of the Amorites. It happened that R. Aqiba gave a banquet in honor of his son, and at every cup that he drank he said: "To the wine in the mouth and to the health of the sages and their disciples."


text:
Page:The Pima Indians.pdf/171

166 can not be explained by their environment, because the same surroundings produced the superior culture of the Hohokam, which there is no reason to believe was not indigenous. It may be surmised that the Pimas would have accomplished more in recent years in the art of ornamentation if they had adopted the curved knife that has become so widespread among other American Indians since the advent of the whites. A full discussion of the factors that have influenced their culture would better be deferred until after an examination of the evidence furnished by social organization (which through the absence of totemism has not directly influenced their art), by history, and by religion.

The Pimas have four kinds of musical instruments—the flute or flageolet, the basket drum, the scraping stick, and the rattle, the last having many forms. They say that the first two instruments were adopted from the Maricopas within a century or two. If this be true Pima attainments in instrumental music must have been of a very modest character indeed. There are few flutes to be found and the drum is never heard except in ceremonies which are themselves becoming increasingly rare. The gourd rattle is the commonest form of the last class of instruments.

The Pima or Maricopa flute is of cane cut of such a length that it includes two entire sections and about 4 cm. of each of the two adjoining. It therefore contains three diaphragms, of which the two end ones are perforated, while the middle one is so arranged that the air may pass over its edge from one section into the other. This is done by burning a hole through the shell of the cane on each side of the diaphragm and joining them by a furrow. With such an opening in the upper section the instrument can not be played unless a piece of bark or similar material be wrapped over all but the lower portion of the furrow to direct the air into the lower section. The forefinger of the left hand is usually employed as a stop if no permanent wrapping directs the current of air so that it may impinge upon the sharp margin of the opening into

title: Page:The Pima Indians.pdf/171


text:
Lockhart v. Fretwell/Opinion of the Court

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

In this case we decide whether counsel's failure to make an objection in a state criminal sentencing proceeding—an objection that would have been supported by a decision which subsequently was overruled—constitutes "prejudice" within the meaning of our decision in Strickland v. Washington, 466 U.S. 668 (1984). Because the result of the sentencing proceeding in this case was rendered neither unreliable nor fundamentally unfair as a result of counsel's failure to make the objection, we answer the question in the negative. To hold otherwise would grant criminal defendants a windfall to which they are not entitled.

In August 1985, an Arkansas jury convicted respondent Bobby Ray Fretwell of capital felony murder. During the penalty phase, the State argued that the evidence presented during the guilt phase established two aggravating factors: (1) the murder was committed for pecuniary gain, and (2) the murder was committed to facilitate respondent's escape. Finding the existence of the first of these factors, and no mitigating factors, the jury sentenced respondent to death.

[p367] On direct appeal, respondent argued, inter alia, that his sentence should be reversed in light of Collins v. Lockhart, 754 F.2d 258 (CA8), cert. denied, 474 U.S. 1013 (1985). In that case the Court of Appeals for the Eighth Circuit held that a death sentence is unconstitutional if it is based on an aggravating factor that duplicates an element of the underlying felony, because such a factor does not genuinely narrow the class of persons eligible for the death penalty. Accordingly, respondent argued that his death sentence was unconstitutional because pecuniary gain is an element of the underlying felony in his capital felony-murder conviction—murder in the course of a robbery. The Arkansas Supreme Court declined to consider whether to follow Collins because respondent failed to object to the use of the pecuniary gain aggravator during the sentencing proceeding. Rejecting the remainder of respondent's claims, the Arkansas Supreme Court affirmed both the conviction and the death sentence. Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986). Respondent then filed a state habeas corpus challenge, arguing that trial counsel was ineffective for failing to raise the Collins objection. The Arkansas Supreme Court rejected the claim because the Arkansas courts had not passed on the Collins question at the time of respondent's trial. Fretwell v. State, 292 Ark. 96, 97, 728 S.W.2d 180, 181 (1987).

Respondent filed a petition seeking federal habeas corpus relief under 28 U.S.C. § 2254 in the United States District Court for the Eastern District of Arkansas. Among other things, he argued that his trial counsel did not perform effectively because he failed to raise the Collins objection. The District Court held that counsel "had a duty to be aware of all law relevant to death penalty cases," and that failure to make the Collins objection amounted to prejudice under Strickland v. Washington, supra. 739 F. Supp. 1334, 1337 (ED Ark. 1990). The District Court granted habeas relief and conditionally vacated respondent's death sentence. Id., at 1338.

[p368] The Court of Appeals affirmed by a divided vote, 946 F.2d 571 (CA8 1991), even though it had two years earlier overruled its decision in Collins in light of our decision in Lowenfield v. Phelps, 484 U.S. 231 (1988). See Perry v. Lockhart, 871 F.2d 1384 (CA8), cert. denied, 493 U.S. 959 (1989). The majority believed that the Arkansas trial court was bound under the Supremacy Clause to obey the Eighth Circuit's interpretation of the Federal Constitution. Based on this belief, it reasoned that had counsel made the objection, the trial court would have sustained the objection and the jury would not have sentenced respondent to death. The court remanded, ordering the District Court to sentence respondent to life imprisonment without the possibility of parole. It held that since respondent was entitled to the benefit of Collins at the time of his original sentencing proceeding, it would only "perpetuate the prejudice caused by the original sixth amendment violation" to resentence him under current law. 946 F.2d, at 578.

The dissenting judge argued that Strickland prejudice involves more than a determination that the outcome would have been different—it also involves the concepts of reliability and fairness. 946 F.2d, at 579 ("By focusing only on the probable effect of counsel's error at the time of Fretwell's sentencing, the majority misses the broader and more important point that his sentencing proceeding reached neither an unreliable nor an unfair result"). We granted certiorari, 504 U.S. 908 (1992), and now reverse.

Our decisions have emphasized that the Sixth Amendment right to counsel exists "in order to protect the fundamental right to a fair trial." Strickland v. Washington, supra, at 684; Nix v. Whiteside, 475 U.S. 157, 175 (1986) (noting that under Strickland, the "benchmark" of the right to counsel is the "fairness of the adversary proceeding"); United States v. Cronic, 466 U.S. 648, 653 (1984) ("Without counsel, the right to a trial itself would be of little avail") (internal quotation marks and footnote omitted); [p369] United States v. Morrison, 449 U.S. 361, 364 (1981) (the right to counsel "is meant to assure fairness in the adversary criminal process"). Thus, "the right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated." United States v. Cronic, supra, at 658.

The test formulated in Strickland for determining whether counsel has rendered constitutionally ineffective assistance reflects this concern. In Strickland, we identified the two components to any ineffective-assistance claim: (1) deficient performance and (2) prejudice. Under our decisions, a criminal defendant alleging prejudice must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S., at 687; see also Kimmelman v. Morrison, 477 U.S. 365, 374 (1986) ("The essence of an ineffective-assistance claim is that counsel's unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect"); Nix v. Whiteside, supra, at 175. Thus, an analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective. To set aside a conviction or sentence solely because the outcome [p370] would have been different but for counsel's error may grant the defendant a windfall to which the law does not entitle him. See Cronic, supra, at 658.

Our decision in Nix v. Whiteside, supra, makes this very point. The respondent in that case argued that he received ineffective assistance because his counsel refused to cooperate in presenting perjured testimony. Obviously, had the respondent presented false testimony to the jury, there might have been a reasonable probability that the jury would not have returned a verdict of guilty. Sheer outcome determination, however, was not sufficient to make out a claim under the Sixth Amendment. We held that "as a matter of law, counsel's conduct cannot establish the prejudice required for relief under the second strand of the Strickland inquiry." 475 U.S., at 175. The touchstone of an ineffective-assistance claim is the fairness of the adversary proceeding, and "in judging prejudice and the likelihood of a different outcome, '[a] defendant has no entitlement to the luck of a lawless decisionmaker. Ibid. (quoting Strickland, supra, at 695); see also Nix v. Whiteside, supra, at 186–187 (BLACKMUN, J., concurring in judgment) ("To the extent that Whiteside's claim rests on the assertion that he would have been acquitted had he been able to testify falsely, Whiteside claims a right the law simply does not recognize Since Whiteside was deprived of neither a fair trial nor any of the specific constitutional rights designed to guarantee a fair trial, he has suffered no prejudice").

[p371] The result of the sentencing proceeding in the present case was neither unfair nor unreliable. The Court of Appeals, which had decided Collins in 1985, overruled it in Perry four years later. Had the trial court chosen to follow Collins, counsel's error would have "deprived respondent of the chance to have the state court make an error in his favor." Brief for United States as Amicus Curiae 10.

Respondent argues that the use of hindsight is inappropriate in determining "prejudice" under Strickland, and that this element should be determined under the laws existing at the time of trial. For support, he relies upon language used in Strickland in discussing the first part of the necessary showing—deficient performance. We held that in order to determine whether counsel performed below the level expected from a reasonably competent attorney, it is necessary to "judge counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S., at 690.

[p372] Ineffective-assistance-of-counsel claims will be raised only in those cases where a defendant has been found guilty of the offense charged, and from the perspective of hindsight there is a natural tendency to speculate as to whether a different trial strategy might have been more successful. We adopted the rule of contemporary assessment of counsel's conduct because a more rigid requirement "could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client." Ibid. But the "prejudice" component of the Strickland test does not implicate these concerns. It focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair. Id., at 687; see Kimmelman, 477 U.S., at 393 (Powell, J., concurring). Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him. As we have noted, it was the premise of our grant in this case that Perry was correctly decided, i.e., that respondent was not entitled to an objection based on "double counting." Respondent therefore suffered no prejudice from his counsel's deficient performance.

The dissent contends that this holding is inconsistent with the retroactivity rule announced in Teague v. Lane, 489 U.S. 288, 310 (1989), but we think otherwise. Teague stands for the proposition that new constitutional rules of criminal procedure will not be announced or applied on collateral review. Id., at 310. As the dissent acknowledges, post, at 387, this retroactivity rule was motivated by a respect for the States' strong interest in the finality of criminal convictions, and the recognition that a State should not be penalized for relying on "the constitutional standards that prevailed at the time the original proceedings took place." Teague, supra, at 306 (plurality opinion) (internal citations omitted). "The 'new rule' principle therefore validates reasonable, good-faith interpretations [p373] of existing precedents made by state courts even though they are shown to be contrary to later decisions." Butler v. McKellar, 494 U.S. 407, 414 (1990).

A federal habeas petitioner has no interest in the finality of the state-court judgment under which he is incarcerated: Indeed, the very purpose of his habeas petition is to overturn that judgment. Nor does such a petitioner ordinarily have any claim of reliance on past judicial precedent as a basis for his actions that corresponds to the State's interest described in the quotation from Butler, supra. The result of these differences is that the State will benefit from our Teague decision in some federal habeas cases, while the habeas petitioner will not. This result is not, as the dissent would have it, a "windfall" for the State, but instead is a perfectly logical limitation of Teague to the circumstances which gave rise to it. Cessante ratione legis, cessat et ipsa lex.

The judgment of the Court of Appeals is

Reversed.


text:
Author:Minamoto no Kanemasa

Works

 * Kin'yō Wakashū, as contributor
 * Shinsenzai Wakashū, as contributor
 * Shinsenzai Wakashū, as contributor

title: Author:Minamoto no Kanemasa


text: Author:Fujiwara no Akisuke

title: Author:Fujiwara no Akisuke


text:
Lockhart v. Fretwell/Concurrence O'Connor

JUSTICE O'CONNOR, concurring.

I join the Court's opinion and concur in its judgment. I write separately only to point out that today's decision will, in the vast majority of cases, have no effect on the prejudice inquiry under Strickland v. Washington, 466 U.S. 668 (1984). The determinative question—whether there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id., at 694—remains unchanged. This case, however, concerns the unusual circumstance where the defendant attempts to demonstrate prejudice based on considerations that, as a matter of law, ought not inform the inquiry. As we explained in Strickland, certain factors, real though they may be, simply cannot be taken into account:

"An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, 'nullification,' and the like. [p374] A defendant has no entitlement to the luck of a lawless decisionmaker, even if a lawless decision cannot be reviewed. The assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision. It should not depend on the idiosyncracies of the particular decisionmaker, such as unusual propensities toward harshness or leniency." Id., at 695.

Since Strickland, we have recognized that neither the likely effect of perjured testimony nor the impact of a meritless Fourth Amendment objection is an appropriate consideration in the prejudice inquiry. Nix v. Whiteside, 475 U.S. 157 (1986) (failure to put on perjured testimony); Kimmelman v. Morrison, 477 U.S. 365, 382 (1986) (where the defendant claims that the deficient performance was failure to make a suppression motion, "a meritorious Fourth Amendment issue is necessary to the success of a Sixth Amendment claim" (emphasis added)).

Today the Court identifies another factor that ought not inform the prejudice inquiry. Specifically, today we hold that the court making the prejudice determination may not consider the effect of an objection it knows to be wholly meritless under current governing law, even if the objection might have been considered meritorious at the time of its omission. That narrow holding, of course, precisely disposes of this case as it appeared before the Eighth Circuit. The omitted objection of which respondent complained very well may have been sustained had it been raised at trial. But by the time the Eighth Circuit reviewed respondent's ineffective assistance claim, on-point Circuit authority bound that court to hold the objection meritless; the Arkansas Supreme Court had rejected the objection as well. Perry v. Lockhart, 871 F.2d 1384, 1392–1394 (CA8), cert. denied, 493 U.S. 959 (1989); O'Rourke v. State, 295 Ark. 57, 63–64, 746 S.W.2d 52, 55–56 (1988). Consequently, respondent's claim of [p375] prejudice was based not on the allegation that he was denied an advantage the law might permit him. It was predicated instead on the suggestion that he might have been denied "a right the law simply does not recognize," Nix, supra, at 186–187 (BLACKMUN, J., concurring in judgment), namely, the right to "have the state court make an error in his favor," ante, at 371 (opinion of the Court) (internal quotation marks omitted). It seems to me that the impact of advocating a decidedly incorrect point of law, like the influence of perjured testimony, is not a proper consideration when assessing "the likelihood of a result more favorable to the defendant." Strickland, supra, at 695. I therefore join the Court in holding that, in these somewhat unusual circumstances, the Court of Appeals should have concluded that respondent suffered no legally cognizable prejudice.


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Author:Taikenmon'in no Horikawa

Works

 * Kin'yō Wakashū, as contributor
 * Kin'yō Wakashū, as contributor

title: Author:Taikenmon'in no Horikawa


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Lockhart v. Fretwell/Concurrence Thomas

JUSTICE THOMAS, concurring.

I join the Court's opinion in its entirety. I write separately to call attention to what can only be described as a fundamental misunderstanding of the Supremacy Clause on the part of the Court of Appeals.

In concluding that respondent had been prejudiced by his attorney's failure to make an objection based upon Collins v. Lockhart, 754 F.2d 258 (CA8), cert. denied, 474 U.S. 1013 (1985), the Court of Appeals said the following: "[S]ince state courts are bound by the Supremacy Clause to obey federal constitutional law, we conclude that a reasonable state trial court would have sustained an objection based on Collins had Fretwell's attorney made one." 946 F.2d 571, 577 (CA8 1991). I do not understand this statement to mean that there is a reasonable probability that the Arkansas trial court would have found Collins persuasive, and therefore would have chosen to follow it. Instead, the Court of Appeals appears to have been under the impression that the Arkansas trial court would have been compelled to follow Collins by the Supremacy Clause.

[p376] It was mistaken. The Supremacy Clause demands that state law yield to federal law, but neither federal supremacy nor any other principle of federal law requires that a state court's interpretation of federal law give way to a (lower) federal court's interpretation. In our federal system, a state trial court's interpretation of federal law is no less authoritative than that of the federal court of appeals in whose circuit the trial court is located. See Steffel v. Thompson, 415 U.S. 452, 482, n.3 (1974) (REHNQUIST, J., concurring); ''United States ex rel. Lawrence v. Woods'', 432 F.2d 1072, 1075–1076 (CA7 1970), cert. denied, 402 U.S. 983 (1971); Shapiro, State Courts and Federal Declaratory Judgments, 74 Nw. U. L. Rev. 759, 771, 774 (1979). An Arkansas trial court is bound by this Court's (and by the Arkansas Supreme Court's and Arkansas Court of Appeals') interpretation of federal law, but if it follows the Eighth Circuit's interpretation of federal law, it does so only because it chooses to and not because it must.

I agree with the Court's holding that the Court of Appeals misinterpreted the Sixth Amendment. I wish to make it clear that it misinterpreted the Supremacy Clause as well.

title: Lockhart v. Fretwell/Concurrence Thomas


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Page:The House at Pooh Corner (1961).pdf/73

 sang another verse of his song, while he wondered what to do.

The other verse of the song was like this:

The sun was so delightfully warm, and the stone, which had been sitting in it for a long time, was so warm, too, that Pooh had almost decided to go on


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 being Pooh in the middle of the stream for the rest of the morning, when he remembered Rabbit.

“Rabbit,” said Pooh to himself. “I like talking to Rabbit. He talks about sensible things. He doesn’t use long, difficult words, like Owl. He uses short, easy words, like ‘What about lunch?’ and ‘Help yourself, Pooh.’ I suppose really, I ought to go and see Rabbit.”

Which made him think of another verse:

So when he had sung this, he got up off his stone, walked back across the stream, and set off for Rabbit’s house.

But he hadn’t got far before he began to say to himself:

“Yes, but suppose Rabbit is out?”

“Or suppose I get stuck in his front door again, coming out, as I did once when his front door wasn’t big enough?”

“Because I know I’m not getting fatter, but his front door may be getting thinner.”


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Page:The Monk, A Romance - Lewis (1796, 1st ed., Volume 1).djvu/200

 "You are out of humour, mother; but that is no novelty. Have the goodness to follow me, monsieur."

He opened the door, and advanced towards a narrow stair-case.

"You have got no light," said Marguerite; "is it your own neck or the gentleman's that you have a mind to break?"

She crossed by me, and put a candle into Robert's hand; having received which, he began to ascend the stair-case. Jacques was employed in laying the cloth, and his back was turned towards me. Marguerite seized the moment when we were unobserved: she caught my hand, and pressed it strongly.

"Look at the sheets!" said she as she passed me, and immediately resumed her former occupation.

Startled by the abruptness of her action, I remained as if petrified. Robert's voice desiring me to follow him recalled me to myself. I ascended the stair-case. My conductor ushered me into a chamber where


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Page:The Monk, A Romance - Lewis (1796, 1st ed., Volume 1).djvu/201

 an excellent wood fire was blazing upon the hearth. He placed the light upon the table, enquired whether I had any further commands, and, on my replying in the negative, left me to myself. You may be certain, that the moment when I found myself alone, was that on which I complied with Marguerite's injunction. I took the candle hastily, approached the bed, and turned down the coverture. What was my astonishment, my horror, at finding the sheets crimsoned with blood!

At that moment a thousand confused ideas passed before my imagination. The robbers who infested the wood, Marguerite's exclamation respecting her children, the arms and appearance of the two young men, and the various anecdotes which I had heard related respecting the secret correspondence which frequently exists between banditti and postillions; all these circumstances flashed upon my mind, and inspired me with doubt and apprehension. I ruminated on the most probable means of ascer-


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Page:The House at Pooh Corner (1961).pdf/75

 “So wouldn’t it be better if”

And all the time he was saying things like this he was going more and more westerly, without thinking until suddenly he found himself at his own front door again.

And it was eleven o’clock.

Which was Time-for-a-little-something

Half an hour later he was doing what he had always really meant to do, he was stumping off to Piglet’s house. And as he walked, he wiped his mouth with the back of his paw, and sang rather a fluffy song through the fur. It went like this:

Written down, like this, it doesn’t seem a very good song, but coming through pale fawn fluff at about half-past eleven on a very sunny morning, it seemed to Pooh to be one of the best songs he had ever sung. So he went on singing it.


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 Piglet was busy digging a small hole in the ground outside his house.

“Hallo, Piglet,” said Pooh.

“Hallo, Pooh,” said Piglet, giving a jump of surprise. “I knew it was you.”

“So did I,” said Pooh. “What are you doing?”

“I’m planting a haycorn, Pooh, so that it can grow up into an oak-tree, and have lots of haycorns just outside the front door instead of having to walk miles and miles, do you see, Pooh?”

“Supposing it doesn’t?” said Pooh.

“It will, because Christopher Robin says it will, so that’s why I’m planting it.”

“Well,” said Pooh, “if I plant a honeycomb outside my house, then it will grow up into a beehive.”

Piglet wasn’t quite sure about this.

“Or a piece of a honeycomb,” said Pooh, “so as not to waste too much. Only then I might only get a piece of a beehive, and it might be the wrong piece, where the bees were buzzing and not hunnying. Bother.”

Piglet agreed that that would be rather bothering.

“Besides, Pooh, it’s a very difficult thing, planting unless you know how to do it,” he said; and he put the acorn in the hole he had made, and covered

The House at Pooh Corner (1961) (page 76-2 crop).jpg


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Page:The House at Pooh Corner (1961).pdf/77

 “I do know,” said Pooh, “because Christopher Robin gave me a mastershalum seed, and I planted it, and I’m going to have mastershalums all over the front door.”

“I thought they were called nasturtiums,” said Piglet timidly, as he went on jumping.

“No,” said Pooh. “Not these. These are called mastershalums.”

When Piglet had finished jumping, he wiped his paws on his front, and said, “What shall we do now?” and Pooh said, “Let’s go and see Kanga and Roo and Tigger,” and Piglet said, “Y-yes. L-lets”—because he was still a little anxious about Tigger, who was a Very Bouncy Animal, with a way of saying How-do-you-do, which always left your ears full of sand, even after Kanga had said, “Gently, Tigger dear,” and had helped you up again. So they set off for Kanga’s house.

Now it happened that Kanga had felt rather motherly that morning, and Wanting to Count Things—like Roo’s vests, and how many pieces of soap there were left, and the two clean spots in Tigger’s feeder; so she had sent them out with a packet of watercress sandwiches for Roo and a packet of extract-of-malt sandwiches for Tigger, to have a nice long morning in the Forest not getting into mischief. And off they had gone.