Can this Marriage Be Saved?


Mr. Burt is a senior majoring in political science at the State University of New York at Geneseo, after which he hopes to attend law school.

The American experiment in government has often and most accurately been described as a marriage of democratic and republican ideals — one which many of us think is going on the rocks. More than any amount of Bicentennial hokum, events themselves compel us to re-examine why Liberty and Democracy were taken down the aisle in the first place. Perilous it is to assume that these parties have always fought, or that their basic compatibility is imperturbable. Behind the temporary tensions and hurdles of this political matrimony, we are seeing the flame flicker ever lower in its great original passion: Justice.

For an indicator I refer you to the conceptual disarray and discontent that embroils this ideal. All around us the substitutes for true justice contest for power: "equality of opportunity," "social justice," "the right to a decent living," "freedom from want." Meanwhile, justice in the old way — "to each his due" — seems to have been shunted aside. Among those who are critical of this proliferation of imperatives, perhaps a good many perceive it as being linked with a decline of belief in a One God. It is, however, only part of a much more widespread disbelief today that concrete rules of any kind can govern human action.

A well-reasoned antipathy to human rulers has extended itself, and become pathological. Burning still in our collective memory are the days when "reason" was the rope that tied heretics to the stake. So it is that intelligent people can be heard to deny the existence of hard-and-fast principles, in the name of tolerance. The inevitable result is that tolerance and a great many other things cease to be defended as objective human rights. But in the law, the "positivist" thinkers insist that this is as it should be. This school of jurisprudence, harking back to Thomas Hobbes and John Austin, asserts that the only objective fact is that the sovereign ruler may do just as he pleases. Professor Lon Fuller is a bit more discreet, insisting that law needs to be legitimated by reference to "reason." The sovereign should determine what is law, but is himself determined by law. Circular? Not so, says Fuller:

Every rule of law which has enough meaning in it to be useful to lawyers and judges will inevitably contain within it that antinomy of reason and fiat that runs throughout the law… [It] receives concrete meaning only when tied in with an existing system of property and duty relationships that contain many elements which are obviously arbitrary. At the other extreme, even the most arbitrary rule of law has that minimum of reason behind it that justifies a respect for established and authoritative sources of law… The whole view of sovereignty, the view that rejects neither branch of the antinomy of reason and fiat, can be stated without mysticism or obfuscation… (Vol. 59, Harvard Law Review, pp. 377-389)

The legal positivist view was most eloquently put forth by Justice Oliver Wendell Holmes. In describing the law as a "prediction of what the courts will do," Holmes succeeded in erecting the courts as a sovereign accountable, not to any eternally fixed principles, but simply to their own perception of the popular will.

The fallacy to which I refer is the notion that the only force at work in the development of law is logic. In the broadest sense, indeed, that would be true… The danger of which I speak is not the admission that the principles governing other phenomena also govern the law, but the notion that a given system, ours, for instance, can be worked out like mathematics from some general axioms of conduct… Such matters are really battlegrounds where the means do not exist for determinations that shall be good for all time, and where the decision can do no more than embody the preferences of a given body in a given time and place. No concrete proposition is self-evident. (Vol. 10, Harvard Law Review, pp. 457-468.)

How different is Holmes’ declaration from a popular saying of Revolutionary days: "We hold these truths to be self-evident!"

Yet, viewing these two warring epistemologies, one must conclude that positivism has the upper hand today; broad areas of American political and ethical discussion quote it almost as an article of faith. Legal positivism has an especially persuasive aura; it sounds "realistic," "the way it really works." And one cannot blame another for observing that our law often exhibits a characteristic conventionalism. For who other than the positivists have been its primary shapers for almost a full century? But let us ask if an "antinomy of reason and fiat" accurately depicts the nature of law. I think not. Coherence of the sort that positivism denies is the very essence of law; consistency is all that stands between rule by law, and rule by sheer force.

The Rule of Law

There is little question that the Framers of the United States Constitution intended to draw just such a distinction between brute rule and legitimate government by law. They recognized that all governments employ force, but that in a government of law the actions of governors are prescribed by rules, and thus made legal. To say that law governs is to say that its rules have an existence and meaning of their own, their creation having been authorized by original Framers, accomplished by subsequent legislators, and their meaning not subject thereafter to the interpretative arbitrations of anyone. Clearly, not just any rules will do; for no authority could be long sustained which clearly affronted its subjects’ conception of natural right. The concern of the Constitutional Convention was, of course, to legitimate their own authority to make and impose a system; and in persuading the populace not to rise up against them they were admirably successful.

Now, if all successive administrations were to have held only that authority which was delegated under the Constitution, then our entire body of law could indeed have been worked out "like mathematics," insofar as the English language could be made to communicate exact meaning. Few ordinary citizens, much less Justice Holmes, would be very seriously troubled to see the logic of all things legal, and "strict constructionism" would by comparison be a byword for government expansionism. We should note that this bright prospect was widely anticipated in the aftermath of the Constitution’s adoption; it was also quite predictably doomed. If the Convention spoke upon authority of "We, the People," then presumably the government thereafter continued as the agent of "the People." This is the assumption with which constitutionalism could not contend, and which a system of democratic elections strengthened — though the assumption itself is never put to a vote. The obvious fact is that successive administrations inherited not only the Constitution, but the authority behind it.

The Process of Amendment

In view of this, the power of constitutional amendment takes on a curious meaning. Agreeable to the idea of at least some change, the Framers, with a caveat against inconsistent amendments, insisted that it be accomplished within a mechanism of their own making. Washington emphasized this in his Farewell Address:

“Let there be no change by usurpation, for though this in one instance may be the instrument of the good, it is the customary weapon by which free governments are destroyed.”

Nevertheless, following administrations lost no time in exercising not only delegated powers, but also their inherent imperium, subverting the former’s limitations with the latter. So one cannot expect to confine government, by appeal to "the Constitution," to those strictures and checks which it finds onerous; the People’s agent enjoys the right to ignore, blaspheme, amend, or reject altogether that which it has wrought beforehand. What hope could possibly remain that government would long remain limited?

No recourse is left but an appeal to logical consistency — traditionally weak ground in politics. Even so, the Founding Fathers hoped that someone would blow the whistle when government contradicted on one hand what it had just done with the other : in their phrase, that there would prevail "A Decent Respect for the Opinions of Mankind." Though hardly sanguine about popular rule, these men undespairingly leaned upon an enlightened minority to henceforth remind the public that the sanctions and powers of the Constitution could not sensibly be divorced from its limitations, that such a rude move would destroy a system designed to work as a unified whole. This was perhaps a reasonable faith in an era when the evidence was everywhere fresh in mind that a "mutable policy," as Madison said,

“poisons the blessings of liberty itself. It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action, but how can that be a rule, which is little known, and less fixed?” (James Madison, Federalist No. 53)

Madison ‘s emphasis on consistent interpretation found its background in a string of similar doctrines which ornamented the legal heritage of his day. The Roman nulla poena sine lege, or "no crime without law," had established that law must primarily be disseminated before its offenses become punishable; and secondarily that its terms be put in operational (and not merely stipulative, indefinite, or contradictory) terms. The long English tradition from the Magna Carta to the 1689 Bill of Rights counted as some of its greatest accomplishments the securing of a defendant’s right to know the charges against him, and requiring the King to link those charges with an established law.

The Bill of Rights

One can gauge the prominence given to coherence in the Constitution by the vehemence with which the Framers defended it; Hamilton in particular declared that a Bill of Rights was superfluous, that the Constitution itself guaranteed all those popular freedoms which had been so carefully enshrined in the Articles of Confederation. The public was prudently intransigent on this point — none of which should indicate that the approved product was a marvel of consistency. How much of today’s legal doublethink was originally coined to defend slavery, before that staggering anomaly to freedom was eradicated? No small amount of it lives on today to excuse continuing inequality before the law according to occupation, class, or other arbitrary criteria; the utilitarianism of our age has so institutionalized it that it rests more comfortably with many lawyers than does the original imperative of John Locke:

[The power government has] ought to be exercised by established and promulgated laws : that both the people may know their Duty, and be safe and secure within the Limits of the Law, and the Rulers too kept within their due bounds, and not be tempted, by the Power they have in their hands… or else their Peace, Quiet, and Property, will be at the same uncertainty as it was in the state of Nature. (Second Treatise on Goverment, ed. Peter Laslett [New York, Cambridge University Press, 1963] p. 406, 405.)

Can it be said today that we know our Duty, or that our Rulers know their bounds? The uncertain view with which most of us now regard the government certainly suggests that the nation has not kept its fences as Locke urged we must do. It is long past time to ask how this came to be.

We have noted that there are the workings of government itself; try as they might, the Framers could not design an administration that was in fact limited to its delegated powers. We have seen the "enlightened minority" swept up in a philosophy which denies that absolute principles, much less established laws, can even exist. But no explanation of the decline of limited constitutional government would be complete without touching upon the role of the Supreme Court in defending the Framers’ intent.

Limitations of this kind can be preserved in practice no other way than through the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights and privileges would amount to nothing… The courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments… That inflexible and uniform adherence to the rights of the Constitution, and of individuals, we perceive to be indispensable in the courts of justice. (Alexander Hamilton, Federalist No. 78)

It is a comparatively hollow and scarred Constitution that now serves as the totem of our Court; the supreme law of the land is often little more than a cat’s-paw for vast and incoherent "ethical" imperatives, various social exigencies, and the impatient stampings of the better-organized interest groups. Not surprisingly, all the checks and balances have become bulwarks of State power. Presumption often supplants vigilance, for Power’s gain: judicial presumption that lawmakers hand down coherent law, and legislative presumption that the courts can "determine the exact application of the laws." Even more boldly, each of the branches of the Federal government has gotten into the business of making, applying, and adjudicating its own rules. Then, for instance, we have the sad spectacle of the Supreme Court, modestly declining to rule on substantive issues under broad areas, the sooner that it might enjoy the prerogative of "deciding each case on its merits." Can we not lament this trend all the more because use of these areas of authority is growing, and because the police power, for example, is at best implied, and not once mentioned in the Constitution, while the Framers demanded an "inflexible and uniform adherence to the rights… of individuals"?

One cannot fail to be impressed that the Constitution’s authors were better cognizant of the critical historical tendencies of government than many are today. They knew of Power’s clever usurpation of everything that stands in its way. With a mixture of hope and skepticism, they detailed the contrivances and social conditions which could best bend Power to their own noble goals. With a remarkable grasp of the state of political justification, a number of the Founding Fathers spoke of the marriage of democracy and liberty as a "last chance" for government. It remains true today that this Constitution ought to be a conclusive test of the proposition that man can be more free under government than in the state of nature. This is the stake which we still have in proving their hope better founded than their skepticism. My purely technical note is that we will yet be reminded that the sanctions and blessings of the Constitution are inseparable from its limitations, if our errant experiment in government is to work.


April 1975

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