Saturday, September 5, 2015

The Rule Of Law In America: An Autopsy

     For our lead-in, here’s WeirdDave at Ace’s Place:

     What idea was the cornerstone of the ideological wall that the Founding Fathers used to construct this nation? What single, simple concept embodied everything that they hoped to create, and would serve as a yardstick for future generations to measure their path?

     “This shall be a nation of laws, not men”

     This was the idea that galvanized a group of Englishmen to revolt against an overreaching crown. This was their solution to prevent future totalitarian regimes from subjecting their progeny to depravities that they themselves were suffering. It was not only to be the framework of the new nation, but also the mortar holding it together, binding both citizen and official into a web of interconnecting loyalties and obligations. Rule by man could, no, inevitably would, be capricious. Rule of law was as constant as the northern star, providing the only model where justice could be guaranteed with tyranny excluded.

     A bit dramatized and overwritten, but the essential points are there. To avert the possibility of tyranny, whether monarchical or oligarchical:

  • The law would be “public property,” made by open, Constitutionally defined processes;
  • It would be comprehensible by any reasonably intelligent adult;
  • It would bind all Americans without exception.

     And it seemed to work very well for quite a long time. But then, it wasn’t the sole pillar of the new Republic. It collaborated with several others:

  • The limited powers of the federal government;
  • The essential weakness of the state governments;
  • The widespread armament of the American citizenry;
  • And the great reluctance of the legislatures to tinker.

     It’s that last point that’s most on my mind this morning.

     It was observed, by Thomas Jefferson among others, that legal stability is a necessary precondition for the knowability of the law, and thus for the effectiveness of the rule of law. Jefferson was particularly scathing about the federal judiciary’s arrogation of the power to “interpret” the law, including the Supreme Law, the Constitution:

     "Contrary to all correct example, [the Federal judiciary] are in the habit of going out of the question before them, to throw an anchor ahead and grapple further hold for future advances of power. They are then in fact the corps of sappers and miners, steadily working to undermine the independent rights of the States and to consolidate all power in the hands of that government in which they have so important a freehold estate." -- Autobiography, 1821

     "The great object of my fear is the Federal Judiciary. That body, like gravity, ever acting with noiseless foot and unalarming advance, gaining ground step by step and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them." --Letter to Spencer Roane, 1821

     "It has long been my opinion, and I have never shrunk from its expression,... that the germ of dissolution of our Federal Government is in the constitution of the Federal Judiciary--an irresponsible body (for impeachment is scarcely a scare-crow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States and the government be consolidated into one. To this I am opposed." --Letter to Charles Hammond, 1821

     "The judges... are practicing on the Constitution by inferences, analogies, and sophisms, as they would on an ordinary law. They do not seem aware that it is not even a Constitution formed by a single authority and subject to a single superintendence and control, but that it is a compact of many independent powers, every single one of which claims an equal right to understand it and to require its observance." --Letter to Edward Livingston, 1825

     To Jefferson it was clear that stability in law, and thus its knowability by the common citizen, were incompatible with a judicial regime capable of “interpreting” it to mean other than what it said in its plain English text. His insights in this regard are among the many marks that cement his place as the supreme genius of the Founding Era. They seem queerly prescient when read in this age of the Republic.

     But for all his brilliance, Jefferson, who lived at a time when “regulation” was synonymous with “law,” and legislators were relatively ordinary men who would lay down their regular responsibilities for six or eight weeks each year to decide a few questions, adjourn, and return to their homes, could not have foreseen the incessant, frenetic, wholly unrooted dance of the legislatures and regulatory bodies that were to come.

     Legal stability begets knowability: the citizen’s ability to know what’s required of him and forbidden to him. But stability in law doesn’t rest solely on plain-English wordings stoutly resistant to creative “interpretations.” It also requires:

  1. Limits to legal scope;
  2. Steadiness of existing laws;
  3. A small, inexpansible volume of laws.

     The first condition was supposed to arise from constitutionalism: the requirement that every law conform to the higher law under which it was made. Each county would have its charter, which would be subordinate to the state’s own constitution, which would in turn be subordinate to the Constitution of the United States. The powers thus conferred upon a legislature would be circumscribed in a fashion that precluded the violation of recognized rights and ensured that constitutional and charter obligations would be respected.

     The second condition seemed to be guaranteed by the democratic process, which would elevate common citizens to seats in the legislatures. “Common citizens” as legislators! Today, when politics has become a career and ascent even to a county legislature requires prodigious expenditures of time, money, and effort, the notion seems fantastic. Yet the Founders assumed it would be so, because Americans would all have other pursuits, to which they would be attached and would want to return.

     The third condition...well, let’s just say that none of the Founders, Jefferson included, could possibly have imagined the volume of laws and regulations under which we labor today.

     The best indicator for the unbearable luxuriance of law is the legal library even the humblest practitioner is required to maintain. Hundreds of thick volumes populate the shelves...but even perfect knowledge of their contents would not be a sufficient guide to the law, for today’s lawyer is perforce a specialist. He operates in a corner of the law, defined by subject matter and geographical application, and dares not venture beyond it without consulting another lawyer whose specialty would adequately supplement his. If the heavily educated, licensed practitioners of law are so confined, what, then, could the common citizen know of it?

     When legislation constitutes a lifelong career rather than a brief stint in public service, when unelected, faceless regulators have carte blanche to “make rules” with the force of law, and when judges who are essentially proof against correction can interpret black to mean white, there can be no “rule of law,” for the requirements of the law are inherently unknowable.

     We await arbitrary enactments and alterations by career politicians.
     We hang on judicial decisions about the meanings of ordinary English words.
     We swim through seas of “regulations” decreed by unelected persons according to processes unbound by Constitutional norms.

     The rule of law, once a vital organ in our philosophical body, has been wrenched out, hacked up, and left to rot.

     It’s time we admitted as much, buried the remains, and acted accordingly.


Reg T said...

"We hang on judicial decisions about the meanings of ordinary English words."

There is no longer common ground for even discussion with the Left, as they have changed - often 180 degrees, as in Orwell's 'Newspeak' - the common meaning of so many words. And the liberal judges - over 100 Federal bench positions having been filled by Obama appointees, the last I heard - stand ready to use those liberal definitions.

"Define 'is'." "Define 'obscenity'. "

And then there is the new lexicon: "micro-aggressions", "triggers", "hate speech"

Beachcomber556 said...

Our founders understood that power corrupts. It is the rare individual who is immune to the lure of The Dark Side of human nature. All have sinned. History is filled with examples of the rise and fall of civilizations. None lasts forever because all are constructed by human beings, and we are all, to varying degrees, susceptible to the lure of power. Rare indeed is the altuist, the patriot, who gives himself or herself to public service, and remains 100% loyal to their oath of office, ethics, morals and integrity intact. Their polar opposites are legion, and the net effect of their corruption over time is what we see today in our beloved homeland.

Brian Wilson said...

While the Founders were brilliant men of their time, if they indeed "understood that power corrupts", one wonders why they worked so diligently to create another form of "government" comprised of the same levin that would ferment it also. They had the time, means, intelligence and history to compose an "operating system" that would thoroughly reflect their lip service to "self-governance". Instead, while stating the "governed" had the right "to alter or abolish" a corrupt government, they gave that same government the power and constitutional authority to "suppress insurrections". A mere oversight? Typo? Additional explanation required but not provided? Washington stated "Government is Force". Force is anathema to Freedom. To support "limited government" is to believe in "little bit pregnant". It just a matter of time for the immoral, anti-freedom, anti-individual Government devolves into full bloom. They had to know up until their day, no government had existed without being aggressively forced up its subjects or supported increased Liberty. Concocting the power of yet another "government" differently organized believing it would be restrained by some pieces of parchment strongly suggests the Founding Dads weren't all that bright after all or they were aware of the sinister seeds they were sewing and just didn't give a damn. At bottom, there is no government like no government.

Ominous Cowherd said...

Brian, don't blame the founding fathers. They left us a line in the sand, written on parchment. The blame rests with our fathers and with us, for allowing government to cross those lines and get away with it.

If the Constitution were enforced by the states, if we forced our state politicians to enforce it, it would be doing its job. No piece of paper will help if we don't first do our jobs.

Brian Wilson said...

But I do blame them. They wrote the rules. It was their ball, their field, their stadium. As good as it was, they failed to load the parchment with sufficiently severe penalties for those who crossed he line. As Jefferson said, impeachment was no scare-crow. The Constitution assumes a "righteous" citizenry, both in and out of office (Adams). The Dads knew the baseness of human nature but failed to provide the means to deal with it powerfully enough to preserve the concept they concocted. With -0- constitutional means for Congress to punish those who would flaunt constitutional principles, it was just a matter of time before the very men who signed the parchment were trespassing its restrictions (Alien and Sedition Acts 1798).
The "blame" of our fathers and us is largely due to this absence of legal means to proceed. How do you suggest our fathers, grandfathers or we were to "force" States, "force" politicians to "force" anything? Review what happened when the Bonus Army went to DC to get paid. In our day, 80%-90% of the people were opposed to Obamacare - and said so. But -0 leverage = -0- results. It took a couple hundred years, but the citizenry didn't just wake up to government skullduggery. They MAY have just begun to realize that there is no legal procedure that can be taken to correct the problem; every branch of govt is FUBAR'd.
I totally support "doing our jobs" -- but FOIA's, law suits and Next November's Election isn't going to get 'er done. Not even close. We're waaaay too far past that point for Logic and Order to prevail. Had the Founders accurately recognized the eventual increasing corruption of subsequent generations of "elected leaders" and given us a big constitutional stick, there may still be peaceful resolutions possible. But they didn't - and there isn't and the primary responsibility rests at the feet of those who created it. Their names are on the bottom of the Declaration. They did well - but they didn't go far enough. And now we know what "do our jobs" will really mean.

Unknown said...

No group of men can control the future of their descendant's actions. They couldn't have possibly wrote a constitution that covered all of the possibly ways human nature, i.e. greed, could manipulate the outcome. Impossible! No, they had to leave some of the responsibility to future generations and they said as such. Even Wilson understood what he had done when he slit the throat of the U.S. Human nature is the culprit, certainly not the founders of this once-great nation. We are all collectively responsible for the state of the union.

Brian Wilson said...

"No group of men can control the future of their descendant's actions. They couldn't have possibly wrote a constitution that covered all of the possibly ways human nature, i.e. greed, could manipulate the outcome."
No argument there. Time is the sole arbiter between prescience and paranoia.
However, considering the panoply of of writings from Jefferson, Adams, Washington, Henry, Franklin and others, focusing on the ugly side of human nature, the historical record of failed governments, power's absolute guarantee of corruption (Acton), usurpation of otherwise benign or benevolent legislative intentions combine to make it incomprehensible that the Constitution arrived with so many guarantees the new "republic" would not have the weapons necessary to defend the Freedom and Liberty it touted. Sure enough: it didn't.
"...[C]ontrolling...future descendants" is a non-starter; it's about providing the organizational tools for them to do so. Retrospective analysis and mea culpas (Wilson) are irrelevant after the fact.
If "human nature is the culprit", the learned and insightful Founding Dads had the leg up on that one and failed; they just re-shuffled the permanently loaded deck. "Government" is the culprit along with the gang of those who support it and think it has - or ever will have - the answer to protect and nurture Freedom and Liberty. As noted above: Government is Force (Washington). Force in anathema to Freedom.
" We are all collectively responsible for the state of the union." Count me out. Personally, I'm not into "collectivism" on any scale. As long a some/any form of "government" is superimposed on the individual, Freedom will just be a word that loiters in the vocabulary.

Anonymous said...

Giving the Founders the benefit of the doubt and assuming they were honestly doing their best to create a "legitimate" govt, the fact is that no govt that operates on the basis of aggressive (different from defensive) force can be legitimate. It's just a Mafia operation writ large with big expensive buildings, elaborate procedures, vast libraries of records and rules, and violent thugs enforcing the opinions of men and women dba "legislators." The only difference between any "government" and a private crime syndicate is the *perception* of legitimacy. Legitimate govt is found in a business, a charitable organization, or a social club; IOW, *voluntary* organizations.

No govt has inherent powers; all governmental authority must be delegated to its agents by its creators and no one can delegate authority he does not have, not even when operating with large numbers of like-minded individuals who call themselves "The Government." There is no govt, just individual men and women dba "the govt."

Read Lysander Spooner's "No Treason" (free online) to understand what a complete fraud, or at best, misconception, the whole paradigm of constitutional govt really is.

Brian Wilson said...

Thanks for confirming everything I wrote above. What you are saying - without saying it - is Anarchy, defined accurately, is the only answer to the question of "Government". Call it Volunteerism, free market association, spontaneous order - whatever. Self-government is the only moral "government" available in that it eliminates aggressive, imposed Force.
As also noted above: There is no government like no government.

Thanks for the comments, opinions, errors/omissions, typos, etc. At this point, it appears our "discussion" is lapsing into the redundancy of re-wording, differently stated, etc. Thanks to Mr. Porretto and Liberty's Torch for the opportunity to participate.

Brian Wilson
The Pragmatic Anarchist