Penning Laws mightier than the sword…
Hopefully over the last three posts on the Three Key Steps required for the Rule of Law, you’ve not only followed along, but also felt some concern about where I’ve been going with this. In New Year’s Eve’s post, I emphasized the importance of Philosophy and questioned the common assumptions that the Big Ideas of the West have little or nothing to do with everyday life, and in New Year’s Day post we looked at how, through the ideas of men like John Locke, The Law, in a general sense, functions as applied Philosophy. But then at the opening and close of my previous post on Property, showing how it is central to those steps being completed and a society able to enjoy the Pursuit of Happiness, I cautioned that,
“… you should be uneasy about the “♫ ♪ ♬ it’s as easy as 1,2,3…♬ ♪ ♫” nature of these three steps to the Rule of Law that I’ve given.”
And you should be cautious towards anyone promoting the idea that ‘Men of Reason know what’s best!‘ – if you know anything about the French Revolution, or even the PC Culture of our Wackademic Universities, that should be cause for serious and well founded alarm. Stick with me, because in this post, as we look at how The Law does have a very real and direct connection into our daily lives through the concept of Property, and the West’s Big Ideas, we’ll also see that the Rule of Law, as our Founders understood it, provided an antidote to the very real threat of ‘those who know best!‘.
As we’ve seen, the initial hardships and innovations of the first colonists in America, were hard and clarifying experiences, which made their way back to the old world through the actions and words of men like Thomas Hooker (see the previous post), and they helped in establishing clearer understandings of what Liberty required, as well as the need for limits to what the Law could and should do. Such experiences had an influence on the pens of men like John Locke, who, decades later, distilled those essential principles of life, liberty and property, into a clearer understanding of the importance of the Rule of Law. Americans drank those ideas in, embodied and refined them even further still, as an ‘expression of the common mind‘ through the pen of Thomas Jefferson, as life, liberty and the pursuit of happiness, but that phrase expressed far more than simply swell sounding words.
In this series of posts, we’ve traced a line from Aristotle, to Cicero, Coke, Locke and our Founders and has stressed the importance of knowledge and reason, but there is a very real danger in giving the impression that Reason alone is fit to describe or lay down the law – and in fact letting it do so comes dangerously close to violating one of the first maxim’s we noted, that above all else,
‘No one can be judge in his own cause; Hear the other side’
To ignore that, to put your exalted ‘Reason’ above that, is the path of self inflated elitism, be it of Kings, Experts or Talking Heads, and it is our Laws themselves, when respected, that save us from that. On the other hand, Reason, when given power to depart from the wider reality of a nations laws, not because an error has been found in earlier judgments (which is a valid basis for overturning precedent), but because a judge, legislator or executive has a ‘better idea’ for ‘the greater good’ in spite of their existing laws, that is when ‘Reason’ becomes just as dangerous a beast as any other predator in the jungle. The French Revolution was a good example of that, where for all its talk of ‘Reason!’, it brought unreasonable rivers of blood and mounds of severed heads until finally, it provided sufficient reasons for the greatest tyrant since Alexander, Napoleon Bonaparte, to come to power and plunge Europe into a decade of devastating war and conquest.
The English Jurist Edward Coke, understood very well, the dangers of individual men’s reason being given power to define or direct the law, and his unique formulation of an answer to that, helped him in holding his own king at bay:
Notes on Coke: 1608 “Then the king said that he thought the law was founded upon reason, and that he and others had reason as well as the judges. To which it was answered by me that true it was that God had endowed His Majesty with excellent science and great endowments of nature; but His Majesty was not learned in the laws of his realm of England, and causes which concern the life or inheritance or goods or fortunes of his subjects are not to be decided by natural reason, but by the artificial reason and judgment of law , which law is an act which requires long study and experience, before that a man can attain to the cognizance of it ”
Meaning, that it was not enough for one man, one king, one executive, or even an entire legislature, to consider and declare the law to be this or that, separately from the body of the law – that would be every bit the ‘rule of rules’ as any other arbitrary whim someone justifies to themselves – it is placing you as a judge of your own cause.
Artificial Reason, as Coke spoke of it, required reasoning along with, and in concert with, preceding judgments that made up the common law, which served as a steadying rudder against the whims of the moment’s ‘Good Idea!‘ from steering society in a new, unexpected and rash direction. It is not
enough to entrust our Reason with the power to do what seems fine and sensible to us, it must be rooted in reality, fortified through our deliberate observance of rules of logical method in proceedings and admission of evidence, and most of all by removing us as the ‘judge of our own cause’, through intelligible reference to external standards and agreements. In Coke’s conception of it, ‘Artificial Reason’, as he put it in his ‘Commentary Upon Littleton‘ (which BTW was Thomas Jefferson’s favorite work on law), he said that:
[R]eason is the life of the law, nay the common law itself is nothing else but reason; which is to be understood of an artificial perfection of reason, gotten by long study, observation and experience, and not of every man’s natural reason; for Nemo nascitur artilex[‘No one is born an artist’ (or skilled thinker)]. This legal reason est summa ratio [Law as not just Reason, but Law as Reasoning well established]. And therefore if all the reason that is dispersed into so many several heads, were united into one, yet could he not make such a law as the law in England is; because by many successions of ages it hath been fined and refined by an infinite number of grave and learned men, and by long experience grown to such a perfection, for the government of this realm, as the old rule may be justly verified of it, Neminem oportet esse sapientiorem legibus: . No man out of his own private reason ought to be wiser than the law, which is the perfection of reason.2″
Coke’s ‘artificial reason’ provided a steadying hand to the English Common Law view of Law; in that where Cicero had tied the Law to Reason, Coke anchored The Law in time, further securing it from the momentary misdirections of powerful person’s ‘good intentions and even better ideas‘, by insisting that reasoning be checked by, and against, proven maxims of law, that they comport with various preceding judgments upon a law – legal precedents – and that was a great step forward. But as significant and important a step as that was, as difficult as it made it for the Law to devolve into a Rule of Rules, as Coke’s King James was so impatient for it to do, it is still true that across time and in spite of the better judgments of the finest of men, it is nevertheless true that lesser men with fixed intentions can eventually pull, misdirect and transform even the finest laws into a series of rules serving their own base designs. Unless The Law is further restrained by guides and foundations that lay outside their power to over rule it, those with power over the law, will force it to obey their own desires. The lack of such restraints as that, provided the wiggle room that eventually enabled the Parliament under King George to saddle the Laws of England into shape for riding roughshod over the colonists ‘Rights of Englishmen‘.
The antidote to that, or at least the first formulation of such external restraints, were what Locke had spoken of, those conceptual and perceptual constraints, in the form of Individual Rights and a respect for Property, which, if respected by the Law, secures to all of the people the ability to take those actions they feel are necessary to further their lives, and to retain the fruits (if any) of them. And in fact the English thought those were very good ideas, and they wrote them into many of their laws, but… they were still easily bent or overridden ‘for the greater good‘.
Binding the Law with laws, by auxiliary means
And that was the difficulty – how to have laws, that would keep laws in line, when lawmakers, who have personal interests, passions and desires of their own in current events, can change the laws? This was the issue that Madison was getting at in Federalist #51,
“But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”
The Framers of our constitution proposed solving that riddle, by first establishing and defining a government of selected powers, limited to those specified within it, and providing the framework for the laws that would be written under it, within a single document. The second part of the Framer’s solution, concerned how to have laws control their own makers, by creating a hierarchical layer to the constitution of their laws, which placed that layer which set out the structure of the three branches of government, of its defined powers Article I, Section 8, Clauses ( , 1 (taxes) , 2 (borrow money), 3 (Commerce), 3 (Indians), 4 (Citizenship), 4 (Bankruptcy), 5 (coin & measures), 6 (counterfeiting), 7 (Post Office), 8 (patents), 9 (courts), 10 (piracy), 11 (War), 12 (armies), 13 (navy), 14 (military), 15 (militia), 16 (governing militias), 17 (D.C.), 18 (necessary & proper)), and of how laws were to be written, administered and adjudicated, safely out of the reach of either the legislature, the executive or the judicial branches. The Framers removed the ability of lawmakers to alter those constitutional laws without the consent of the governed, by requiring any changes to them to successfully pass through an amendment process. And should Congress drag its feet in resolving constitutional problems, they gave We The People, through two thirds of their state legislatures, the power to call a convention for the purposes of drafting such new amendments as they might think necessary, which would themselves also have to be ratified by We The People.
But another issue still remained. It was long understood that power could not be allowed to be concentrated under one source, be it a person or group, that those who wrote the laws could not be entrusted to enforce them, and those who adjudicated the laws could not be trusted to write them, or you’d be right back at the point of violating the fundamental maxim of ‘No one can be judge in his own cause; Hear the other side’ issue – allowing the roles of rule maker, judge and jury to be rolled into the body of one – that is one of the primary definitions of Tyranny. The Western ideal of law is to seek after a ‘Separation of Powers‘ in order to prevent that, hence our government having three branches. But it was also known, and too recently experienced by them, that those separations eventually succumbed to one branch gaining more power over the others, or conspiring with another branch for power over all, which is what happened with Britain’s King and Parliament.
Immediately preceding the previous quote from Federalist #51, Madison put the problem and its solution, this way:
“But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. [But what is government itself, but the greatest of all reflections on human nature?...]”
Their remarkable innovation of ‘Checks and Balances’ didn’t entirely separate powers, but gave each branch just enough say-so in the other branches, as to encourage a jealous watch upon its own powers over them – the result was that powers were checked and balanced against the ambitions and desires of the others to retain their power over each other, ensuring that all of the powers remained limited to their united purpose: that of upholding and defending the individual rights and property of its citizens, through the Rule of Law.
The Framers in Philadelphia were (mostly), and with good reason, proud of their accomplishment and thought that that was and should be enough.
We The People, however, did not!
During the campaign for ratifying the Constitution, it became clear that it was going to go down in defeat, because while the Framers felt that because they did not explicitly give the government the power to infringe upon the rights and property of the people, then it wouldn’t be able to do so. The people they were trying to sell that to, however, weren’t buying the notion that those in power would obediently refrain from abusing their powers over them, even if they felt it was best and for ‘the greater good’. The proposed Constitution was heading for defeat, until it was agreed that, as a condition of ratification, several amendments would be proposed to further defend our primary Individual Rights, into the constitution, and only after securing that promise (which, if not for the insistence of then Congressmen James Madison, on honoring that pledge, Congress would have reneged on it), was the Constitution ratified, and in one of the last acts of the 1st Federal Congress, twelve amendments were proposed by Congress, ten of which were ratified (at the time) and became our Bill of Rights; perhaps the most important of all of those amendments, were the two which were Madison’s solution to how to list the essential Individual Rights, without restricting the rights and powers of the people (9th Amendment), or the powers of the States (10th Amendment), to only those few essentials that were listed.
It is worth noting, that those amendments were submitted with this preamble:
“The conventions of a number of the states having, at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added; and as extending the ground of public confidence in the government will best insure the beneficent ends of its institution;–“
Observing, debating and working together, they not only saw the need to, but eventually figured out how to, bring all of those ideas of the past and present, of Law, Individual Rights and Property Rights, together into the constitution of our laws. This was a period that saw amazingly intelligent innovations to the concept and structure of the Rule of Law – a supreme demonstration of Artificial Reason, whose logical elaborations touched on not only the foundations of the law, but the framing, cross beams, roof, walls and flooring of it. The knowledge and understanding required to do that, required that a people first see that it is necessary to do that, and to their great credit, and to our great good fortune, late 18th century America did see that need, and met it.
Thanks to their deeper and lived understanding of Property and Individual Rights, and the importance of their being strongly defended, America contributed greatly to the Western conception of the Rule of Law as applied Philosophy – as ideas in action – successfully instituting Locke’s ideas into the basis of our laws, reconstituting the very purpose of government, into being that of upholding and defending the citizenry’s Individual Rights and Property Rights – those core concepts which Lincoln was already seeking to reclaim and rededicate us to, less than a century later. [Why did we have to be rededicated to them? That’s a question worthy of consideration, which we’ll come back to in a later post.]
An important point here, is that it was not possible for one man, agency or group of men, no matter how brilliant, to fully reason their way past their own interests, ‘for the greater good‘. It took the the insight of all of the people, informed and focused upon the same principles, concerned with the same realities, to produce the revolutionary document that constituted the United States of America, and we should feel grave distrust of any person or group that claims that ‘we are the ones we’ve been waiting for! to implement their own ‘good ideas’ to transform America for ‘the greater good‘. Never forget the fundamental maxim:
‘No one can be judge in his own cause; Hear the other side’
If those smart folks are not seeking real discussion and debate, but instead seek to force the issue through mockery and shouting down the opposition, then they are seeking to be the judge in their own cause and refusing to hear the other side. It was only through respecting that maxim, that the other sides were all heard, and the resulting well rounded judgments that were reached together, transformed the field of The Law, and gave it a clearer purpose, securing to themselves and to their posterity – us – protections for those actions a human being must be at liberty to perform, in order to live a recognizably human life – as in:
“…That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…”
Declarations of the Relevance of our Declaration of Independence
Have you been peddled the modern spin, that our Declaration of Independence never informed our Constitution or the laws written under it? That it had and has no relation to them? If so, you might want to ask them to explain why, when authorizing territories to petition for statehood, time and time again, such as with Nevada, Colorado, Nebraska, and with North Dakota, South Dakota, Washington… and more, that the United States Congress authorized their petitions for statehood, providing,
“… That the constitution, when formed, shall be republican, and not repugnant to the constitution of the United States, and the principles of the Declaration of Independence…”
They certainly seemed to be under the impression, while passing laws authorizing something as major as admitting a new state into the United States, that their state constitutions would comport with, not only our Constitution, but with the Principles of the Declaration of Independence? If those principles had no bearing on our laws, why write that into those laws? Over, and over, and over again?
That wasn’t just an ideal, it was the lived understanding through continual, tangible actions and habits, as encountered and practiced in daily life, which were seen to necessitate securing each persons life against the arbitrary abuse of power by legal means. These ideals are what drove our Declaration of Independence, and the later formation of our Constitution, and they persisted in our laws and understanding of what it means to be an American. The Truth of that should prompt an uncomfortable question: if those living here under those laws, no longer know or understand those laws… how seriously can they be considered Americans? [Another question to ponder in a later post.]
As Lincoln noted in that letter of his that we looked at in an earlier post, those principles and our Individual Rights rest upon as universal a truth as those of Geometry, that each individual is as equally human as the next, whether King or stable boy, and that any law worthy of being thought of as Law should view or treat one that is brought before it no differently than another. The same logic that enabled men to realize that ‘The sum of all 3 interior angles in a triangle is 180?, and that ‘if angle A = 20?, and angle B = 40?, then angle C Must = 120?’, is the very same logical method and respect for reality that is found in “Socrates is a man, All men are mortal, therefore Socrates is a mortal man“, as well as in,
“…We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,–That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. …”
Our Declaration of Independence declared for all time, that these truths are open to all through honest observation and reason, and are as far outside governments power to alter or abolish them as are the laws of logic and geometry, and any law that attempts to violate Right Reason or that infringes upon individual rights, is, in the larger sense, no law at all, such ‘laws’ are invalid – merely rules written by some men that are useful at some particular moment in time in order to gain power over other men, rather than Laws for all men, at all times.
That being said, however, those looking for the Law to supply answers in the manner that a compass and ruler can supply repeatably exact geometrical answers, have somehow mistaking themselves for two dimensional circles and squares. And that, reducing living, reasoning human beings, to the status of insensible material objects that can be forcibly nudged this way and that, is what the Doppelganger requires us to see our fellows as. But the truth is, that we are human beings, having both the need and ability to make choices, and that means that we have the ever present possibility of making an error, which means that there are no, and can be no deterministic rules or systems that can do your thinking, or living, for you. That’s life. To fight against that… is to not only wish that reality were something other than it is, but to actually act as if it were or could be… is that path of poorly considered good intentions that leads to the Rules of Rulers, and away from the Rule of Law.
No Laws come ex nihilo
To improve our chances of getting it right, means never losing sight of the fact that we could get it wrong at any moment, and so we must take care to be guided by the soundest principles, observe actualities, and use our reasoning and judgment to figure out the best course of action possible. Then take action. Then observe and readjust your reasoning again, if need be – that is Prudence. Take a look at this passage, from an interesting article which portrays (rightly I think) John Adams, not as a Conservative, such as Edmund Burke, but as a Classical Liberal, where Adams is replying to fellow Founding Father, and (unwittingly budding Pro-Regressive), Dr. Benjamin Rush:
“But what was prudence? Fellow revolutionary Benjamin Rush noted to Adams that their friend Charles Lee dismissed prudence as a “rascally virtue.” Adams replied that “his meaning was good. He meant the spirit which evades danger when duty requires us to face it. This is cowardice, not prudence.” That was not prudence properly understood.
By prudence I mean that deliberation and caution, which aims at no ends but good ones, and good ones by none but fair means, and then carefully adjusts and proportions its good means to its good ends. Without this virtue there can be no other. Justice itself cannot exist without it. A disposition to render to every one his right is of no use without prudence to judge what is his right and skill to perform it.”
The Rule of Law is a concept that doesn’t come ‘ex nihilo’, from out of nothing, it is something that doesn’t come from the making of rules alone, or in any way from out of the will alone, or from a single reasonable person’s experiences – not even from a majority of them – but only through long consideration of what is Right and what is Wrong, and their application to other men’s experiences in life, as well as your own, and reasoning methodically upon them all, committing them to paper through a pen and transmitting them to the further consideration of others. That is where the power of the pen comes from: when it expresses man’s best understanding of things as they are, and in such a way that they can be understood by other men and applied by them in their lives, that is what the might of this nation rests upon, and it owes its power and prosperity to that. Doing that well, testing it against other peoples consideration and arguments, both of the moment and across time – artificial reasoning – is what was done not only through our constitutional convention, but through the ratification debates as we can see was expressed in the Federalist and Anti-Federalist papers, and through which a long line of ideas and experiences were formulated and tested, and it was only through such a process that can come laws that can reasonably be called Laws that are worth living by.
Why is one law correct and one not, and which one is false? That question can only be asked, and then answered, because there exists a reasonable relation between the reality of men’s lives that can be explained and demonstrated as being so, that IS what the meaning of IS, Is. Because that is possible, those laws that are required to make up a Rule of Law, become, like musical scales, self evident, to those who bother to turn their reasoning upon the timeless issues at hand. And the legal anchors that enable the actions of our lives to be connected to our right to live our lives, to anchor those ideas of law, to our lives, are only to be found in a deeper understanding of the reality of human nature – one that is open to Theist and Atheist alike – the true realization that the identification of reality comes with the need to abide by it – ‘Nature to be commanded must be obeyed‘, and only through that understanding, are Rights and Property able to be perceived.
Laws such as those, do not, can not, and will not, come from the study of only law alone, but only from those whose minds have ranged through the Big Ideas of The West, traveled through and reflected upon History, Literature, Philosophy, Science, that is where laws that can support and further the Rule of Law, come from. Such laws that are rightly reasoned and written, do not disrupt or devalue the very thing that created them – reasoning – they don’t attempt to force you to take actions, they don’t seek to live your life for you, they simply establish the guardrails and penalties for subjecting others to harm by your failure to reason well, establishing a foundation for the needs of the moment to come, in as universal a set of laws as are possible to be made in a given context.
It is vital to an understanding of that, that Law’s are not justified by laws alone, or by their intentions, or their intended results, but upon their sound foundation in reality. Understand that those who practice the law, and those who write the laws, must have a solid, deep, understanding of what makes laws good and bad – not merely efficient – but Good Law and Bad Law, and that knowledge does not, and can not come from law books alone. What makes it possible for such laws to be written, is men and women who receive an education, which itself requires understanding that an education is not simply a matter of ‘getting a degree’, but of attaining a comprehension that is well rounded and informed through books of literature and history and philosophy and religion, for the strength of the law is not in its words, but in the people’s understanding of, and reverence, for them! Without that, they are reduced to mere scratchings upon paper, easily mixed with guile and cooked through fanning the flames of popular opinion, to achieve ‘the greater good’, and other evils. It was well understood at the time of our founding, that should the writing and administering and adjudicating of laws ever fall into the heads of men without that understanding, and without that reverence for human nature, and of what is Right and what is Wrong, then individual interests and corruption would pass through those paper barriers as… well, as John Adams put it,
“Avarice, ambition, revenge, or gallantry, would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”
Lawyers need to learn more than laws to understand Law
At the time that the laws which devised our founding were written, practicing the law had no requirement for, or hardly even an ability to get a law degree from college – such a thing hardly even existed until the early 1800’s. Even then they were few and far between until Harvard & Yale jumped all in, after the Civil War. Instead, to practice law in the time that the foundation of all of our laws were written, you learned of the Law and the Rule of Law, by getting a liberal arts education (AKA: an actual Education) – either through college, a tutor, or on your own – and then you apprenticed with working lawyers who (ideally) instructed you to read more extensively in the likes of Edward Coke, tracing back to Magna Carta, the Justinian codes, and more deeply into Cicero, while discussing them and applying them during the busy work of clerking the daily legal duties of that lawyer or firm.
In Thomas Jefferson’s case, he apprenticed to George Wythe, an exemplar of an Educated Man of The Law,
“In addition to setting a professional example for Jefferson’s legal training, Wythe represented the well-rounded man of letters. An aficionado of English verse, he was also an expert in the sciences, especially mathematics. Largely self-taught, Wythe was an excellent classicist, too. Andrew Burnaby, who met him during his time in Virginia, singled Wythe out among all Virginians and praised his “perfect knowledge of the Greek language, which was taught him by his mother in the back woods.” The Road to Monticello – The LIfe and MInd of Thomas Jefferson, Kevin J. Hays, pg. 58
You did not become a lawyer without having a deep familiarity with the likes of Cicero – you could scarce be considered to have an education without some familiarity with his writings – not because he was ‘Cicero! Famous old dead white guy!‘ but because that familiarity with his thoughts expressed in his letters, dialogs, brought an ethical consideration and comprehension that would otherwise be absent from us (On Moral Duties, On Old Age, On Friendship, Scipio’s Dream) and ‘The Republic/The Laws‘ and brought improvement and depth of consideration to your own thoughts, lawyers would go still further into his legal arguments and cases, but to the minds of all of those who’d bothered to acquaint themselves with him (a case can even be made that the period we know of as The Renaissance, would not have been, or at least would not have been the same, had not Petrarch re-discovered Cicero’s letters) – and very much at the heart of that depth was the idea that laws which violate ‘Right Reason’, were no laws at all. Even so, there needed to be a means to understand and realize its relevance to everyday life, and that came in the Third step.
For Laws, as developed in The West, and as they came to be understood especially in America, could only become what they did, enabling Liberty, because the thoughts of men in that culture first connected to what it means to be human. Cicero brought us back in touch with his idea that:
“Socrates was the first to call philosophy down from heaven and set her in cities and even to bring her into households and compel her to inquire about human life and customs as well as matters good and evil.”
, and that understanding of the importance of philosophy to everyday life brought a depth of awareness of Right and Wrong, that otherwise lies hidden beneath thin, easy answers. One of the truths that are most galling to modernity, is that the idea ‘all lives matter‘ is due to Christianity and no other; even Cicero presumed that a Senator was of more value than a Slave; the idea that Christianity somehow held back the development of the Rule of Law is one of the silliest, thinnest, brittlest notions of the modern era. Only with that last development, could Law develop as something more than mere rules to rule men by, and instead transform into Laws that enabled men to live as Men, and within a culture that urged them to become the highest and best possible, civilly, mentally and spiritually. Individual Rights and Property Rights only appeared, historically, in the West, and in that progression, following Athens, Rome, Jerusalem and The West, because only there were all of the necessary developments available.
The political support and persistence of all of our Individual Rights, depend upon We The People being Those People who can understand that, and only then can that deeper conception of Rights be possible. Once those ideas are developed, understood and accepted, they in turn depend upon, require, The Law to respect our Property, which in turn anchors our higher conceptions and our sometimes fuzzy intentions to solid facts. Without that, the deeper concept of Property too easily becomes nothing more than perceptual level Possessions, materials possessed by force and made to serve those who command the most force, rather than what is theirs by Right. If that desiccated view is allowed to prevail, then the laws soon become rules of behavior, rather than the guardians of our Rights, and then as Rights devolve into nice to haves, soon afterwards only those who have wealth, power or the favor of those who do, can afford to ape those privileges that Rights once protected and preserved for all, and those individuals who have no such connections, are soon easily thought of as mere possessions themselves – for the greater good.
America implemented in fact, what Locke understood in theory, that if where law ends, the government is not prevented from extending its power further, then that is where tyranny begins:
“…Where-ever law ends, tyranny begins, if the law be transgressed to another?s harm; and whosoever in authority exceeds the power given him by the law, and makes use of the force he has under his command, to compass that upon the subject, which the law allows not, ceases in that to be a magistrate; and, acting without authority, may be opposed, as any other man, who by force invades the right of another. This is acknowledged in subordinate magistrates. He that hath authority to seize my person in the street, may be opposed as a thief and a robber, if he endeavours to break into my house to execute a writ, notwithstanding that I know he has such a warrant, and such a legal authority, as will impower him to arrest me abroad. And why this should not hold in the highest, as well as in the most inferior magistrate, I would gladly be informed….”
That understanding was, as Jefferson put it, “an expression of the American mind”, it was the sense behind the Declaration of Independence, the State Constitutions, and later the Federal Constitution, and it drove the understanding and application of our laws. As an early landmark opinion of the Supreme Court, CALDER v. BULL, (1798), illustrates this point as the point, behind our understanding of the Rule of Law:
“…An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power, on which it is founded. A few instances will suffice to explain what I mean. A law that punished a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them. The Legislature may enjoin, permit, forbid, and punish; they may declare new crimes; and establish rules of conduct for all its citizens in future cases; they may command what is right, and prohibit what is wrong; but they cannot change innocence into guilt; or punish innocence as a crime; or violate the right of an antecedent lawful private contract; or the right of private property. To maintain that our Federal, or State, Legislature possesses such powers, if they had not been expressly restrained; would, [3 U.S. 386, 389] in my opinion, be a political heresy, altogether inadmissible in our free republican governments….”
This is High Philosophy in action and applied to real life – there is no break, no separation between what is considered good, and right and true, from what is advantageous and worthwhile in life, and it is the meaning and understanding of those highest Big Ideas of The West that secure your ability to live your life, rather than the life someone else would prefer you to ‘live’.
The fact that Jefferson’s mentor, George Wythe, was an ‘aficionado’ of English Verse, Greek, Mathematics and more, was not a matter of incidental historical trivia. Those were not then, and are not now, oddities or distractions from what is useful to know, or matters that dilute an understanding of the Rule of Law, those are what deepened and strengthened the understanding and realization of such matters, they opened man to the depths of his humanity, they were, and still are, the means of tying those big ideas into the minutia of our lives. The loss of those ideas from our common knowledge, has been the means of Americans losing an understanding of the true American Dream – Living in Liberty under the Rule of Law. If those who claim to be ‘teaching’ your children, are encouraging them in their ignorance of these truths, then you shouldn’t be surprised when, ignorant of those ideas and their relevance to your life, your children are ‘educated’ to become fascistic cry-bullies, pursuing ideals that are neither practical nor good. Might be a good time to take a closer look at what you’re paying tens of thousands of dollars in tuition for.
Those who were learned in the Law, were considered to be so, because they were first learned men, and so were able to realize that the law was not simply concerned with matters of choice and favoritism, but with a clearer understanding of right and wrong, true and false, and ultimately of good and evil (cue the Judeo-Christian half of our Greco-Roman/Judeo-Christian inheritance). The explosive success which resulted from those truths, were verification of their having been, in fact, true; not, as the screenwriter of ‘Lincoln’ stated ‘true because it works’, but as Lincoln himself realized, they worked, spectacularly successfully, because they were True.
It is only possible to pen laws that are mightier than the sword, if the people’s understanding of them makes them strong enough to withstand a sophist’s spin. Without that… they are reduced to being only sweet nothings and vile threats.
The answer to why we have a Rule of Law, is so that people can be secure in their lives and property, because those are and can be known to be theirs, and more importantly, it is known that they should be theirs, that people should be free from the grasping and bullying of the wealthy, powerful, politically connected and envious, and should be able to live, in Liberty, in society. Those who are without that understanding, for them, Individual Rights and the Rule of Law are a bitter impediment to their desired personal satisfactions and plans to circumvent reality, in pursuit of their idea of your ‘greater good’ – and those are the people whose ideas have been driving ‘education’ in America for well over a century.
While to be sure, it was from the risk of being apprenticed to a poor law firm, or to a good law firm that stunk at teaching what they knew, that law degrees from colleges were first, reluctantly, accepted as a means of educating lawyers in the law, but even then, they were, to begin with, essentially liberal arts degrees coupled with a more in depth focus on studying laws. Also worth noting, for all the good intentions, there’s little proof, and much reason to suspect, that the legal educations begun at Harvard and Yale around the 1870’s, provided no better understanding of law, than what a good general education and an apprenticeship had until that time, provided well enough to produce the understanding and arguments that resulted in the constitution of our laws. But gradually and first, then faster, those greater studies were sidelined and nudged out of school curriculums, and as the last major school discarded a study of the Federalist Papers in the early 20th Century, the education of our lawyers has degenerated into that of industrial mills churning out would be rulers who’re armed with an ignorance of Natural Law and a proficiency for writing rules to rule us by.
The laws, legislation and legislators you support, puts those ideas of theirs that you endorse, into positions of power over all of our lives. When what you know of those timeless ideas, goes no more than skin deep, then by means of those surface appearances alone, your own ideas are easily turned to separating you from reality by means of the concerns of the moment, and accordingly your laws begin to be designed, not to free your life, but for others to control all of our lives ‘for our own good’, and when that happens, you ought to know that the Doppelganger has slipped in, and the Rule of Law has been edged out in favor of the Rule of Rules to rule you by.
A ‘Greater Good’ that treads upon the Individual Rights of the people who are left without the defenses provided by a proper Rule of Law, is in direct opposition to the real and self evident truths our nation was founded upon, and as Lincoln noted in his letter:
“… We must repulse them, or they will subjugate us….”
And that will bring us around face to face with the Doppelganger – in the next post.