All Commentary
Monday, July 1, 1963

Right and Wrong–Not Right and Left

I have almost lost faith in se­mantics, and if I can spell out the word very carefully, let me say that I am just about at the point of being anti-semantic. How, for example, did our se­manticists ever get us divided between right and left? The di­vision between right and left has a mere directional connotation. Right and left, if you please, is no way to divide society on eco­nomic, political, or social issues.

What has happened to the dis­tinction between right and wrong? Right and wrong was the division that I grew up to understand and respect. Wrong is the opposite of right, but not left. When you men get into legal practice and you frame your first petition, if you live in Ohio, (or complaint, if you live in Indiana) you will first affirm a right in your client. You will outline a certain right which this man has, whether it be of privacy, or what-not. Then in your allegation you will charge a wrong by the defendant, the wrong being the impairment of the right which your client had, and which should have been left undisturbed. So your first lawsuit is going to in­volve a distinction, not between right and left, but between right and wrong. This is a very proper and persistent legal distinction.

In this lawsuit between right and wrong you may be wrong in your allegation of the right. And you may be wrong again in your allegation that the defendant was wrong in violating the alleged right, which may not have been a right in the first place. If these things were all clear-cut, there wouldn’t be any lawsuits. However, after you have made the al­legation that your client has a right, and that the defendant com­mitted a wrong in violating the right, the die is cast. After that there are only three things that can happen to that lawsuit. One, you can win it. The second thing is, you can lose it; you may be wrong about your right, and the defendant may be right about his wrong. Or third, you may com­promise it. And believe you me, you will compromise a great many of them, and be very happy to do it.

The compromising of a lawsuit is a very important part of legal practice, and sometimes the most profitable. If you win the suit and establish the right categori­cally, you make a precedent. That is one thing. If you lose it, and your defendant’s attorney estab­lishes the wrong of your allega­tion and the right of his client’s position, that is another thing. If you compromise the suit, then you merely temporize. In other words, you establish a middle-of-the-road for the time being, but you haven’t made any law in this compromise. You haven’t contributed anything to legal lore. You may have made a very profitable transaction, but that compromise will never go in­to a case book to guide future law students.

My point in underscoring this process is this: You, as lawyers, throughout your legal life are go­ing to be addicted to right and wrong, not right and left; and any compromise between right and wrong, whether it is in a lawsuit or in society and politics, is es­sentially a temporary stratagem, which serves nothing but expe­diency.

Why is it that we still adhere to right and wrong as the great division in law while in society, in politics, we have abandoned that division? When you say that a thing is right or wrong, you pre­suppose certain tests of objective morality. In order to determine the rectitude of a thing, or the wrong of an action, you must have certain inflexible moral standards of judgment. You say, “Well, these are legal standards that we apply in the courtroom. There is no morality about them. I can have objective legal concepts with­out having objective moral con­cepts.”

Let’s examine that for a mo­ment. What has that to do with our heritage of law? I won’t labor the point, but I will sketch it briefly.

Coke and Common Law

Our American jurisprudence is an English inheritance. Back in the years before 1689 in England, when Lord Coke, the great Lord Chief Justice, was writing deci­sions, you will find (in Calvin’s Case and Bonham’s Case) that Coke was thundering limitations upon government that were not written in constitutions because England didn’t have and doesn’t have today a written constitution. But Lord Coke was restraining the Crown by citations of the natural moral law.

The natural moral law was a legally enforceable limitation up­on the British government. That was changed in 1689 by what is called “The Glorious Revolution” in England. Before 1689, the American Colonies had been all but finally settled. I ask you to bear with me during this little piece of historical recollection. Re­member that our first American colony was established in 1607 at Jamestown. Thereafter we went through the establishment of the various other colonies. As a mat­ter of fact, the only colony that was established after 1689 was Georgia. But all of our colonies were in full flower in 1689, at the time of “The Glorious Revolution” in England.

In the years between the estab­lishment of these American colo­nies, including Connecticut and New Haven, the only law that was applied here was Coke’s natural or common law, along with the Mo­saic Law, and the moral law. That was all the law that the early American judges had to apply in this country. But in 1689 the su­premacy of Parliament was estab­lished in England by “The Glori­ous Revolution.” The King was no longer supreme. Parliament as­cended to the supremacy. After that, instead of the natural law—and follow this closely, please—England went in for what we call colloquially today “the democratic process.” In other words, the re­straint upon government now de­volved entirely upon the wisdom of the electorate, and there it stays in England today. Calvin’s Case could no longer be cited against any act of the present British gov­ernment, because the British Par­liament can do anything to or with the English people or their prop­erty that it desires to. That was begun in 1689.

A Delayed Reaction

Nearly a hundred years later, in 1776, we staged a revolution. It took us nearly 100 years to find out what had happened in Eng­land, because we didn’t have the informational devices we have now. Today, we know what the British Prime Minister said yes­terday, and all of its significance; but in those days, it took a long time for the truth to seep through. We began to argue with Great Britain in 1765 or thereabouts, when a difference of opinion de­veloped as to the rights of Eng­lishmen. When you look at pre­revolutionary literature, you will see that we were asserting the rights of Englishmen, and we were citing Coke to support them. George Mason, the author of the Bill of Rights in Virginia, was trying cases by citing Bonham’s Case and Calvin’s Case and the other decisions that were decided according to the natural law limi­tations upon government.

Finally Parliament made this fact known to us, that as British subjects, we had no rights that Parliament was bound to respect. That was finally made plain be­tween 1765 and 1776. We then wrote the Declaration of Inde­pendence, in which we abandoned all reference to “rights of Eng­lishmen” and talked about the rights of man, the rights of God’s creatures. If British subjects had no rights that Parliament was bound to respect, then creatures of God, by divorcing themselves from all connection with Great Britain, could establish their rights under God and the natural law. That assertion was the first breath of the new life of this re­public.

I dare say that there are people here, as there are people every­where, who will tell you that the Declaration of Independence was simply an emotional exercise, an escape valve for the revolutionary pressures of those times, which means nothing. To say that is to impugn the integrity of the men who wrote and signed the Declara­tion.

Self-Evident Truths

In composing the Declaration of Independence, Thomas Jefferson wrote very precisely what all of those present subscribed to with­out dissent; the four facts of American life, the four facts which constitute a collective predi­cate for everything an American lawyer properly does in his pro­fession. If you don’t challenge me on that, I will be very much dis­appointed.

Take a look at that Declaration of Independence. In the Declara­tion of Rights of 1774, these men had made their final plea for the rights of Englishmen. Between 1774 and 1776, they learned their lesson. The rights of Englishmen were nonexistent. And so in 1776 they declared the rights of man in these words. They said, “We hold these truths….” We are now told that objective truth does not exist; that all truth is rela­tive, like right and left. You can hold that position if you want to, but the authors of the Declaration of Independence took a different position. “We hold these truths…” they said, and they under­scored the expression by affirming these truths “to be self-evident.”

A self-evident truth carries its proof on its face. The Founding Fathers rested their case on four truths held to be self-evident. Number one. There is a God. All men are created. The position of an Almighty Creator in the uni­verse was thus stated in the Dec­laration of Independence, not as a matter of faith, but as a matter of fact. God exists. And then num­ber two. All men are created equal—created equal. All men are not born equal. All men are not physi­cally or materially equal. But ac­cording to this declaration, people are equal in the sight of God. And for that reason—and this to law­yers is important—for that rea­son they are equal before the law of the land. This is the basis of our “equal protection of the law.” It is because of what was said in the Declaration of Independence—equal before God, equal before the law, and unequal in every other way.

Well, you say, “That is purely hypothetical.” Let’s see if it is. If and when you get into the prac­tice of criminal law, you will have great respect for fingerprints. That little fingerprint of yours is not merely a means for the detec­tion of crime. It is used that way, but we ought to broaden its sig­nificance. Take a look at it. That fingerprint distinguishes you from everybody who now lives or who has ever lived on the face of the earth. That is the beginning of your individuation, and beyond that your differences sprout in every direction.

I don’t believe that everybody in this law school gets the same grade. I imagine that some get high marks, some low, some in between. The graduation system of law students is not peculiar. You are graduated all through life. Everybody has different ap­titudes, different drives, and therefore they are different in achievement. You see, the finger­print principle is extended throughout your personality. Some people want to be lawyers. Others want to be farmers, fabricators, plumbers, professors—until we have a whole complex of differ­ences throughout the world. That is what makes for civilization. And whenever you try to equalize or stereotype humanity, by whatever name you call it, you are destroy­ing the civilizing germ of differ­ence. That is providential. Free­dom will take this complex of dif­ferences and make a civilization out of it.

Endowed by Their Creator

But how to keep man free? Here is the next fact of life which lawyers must know. What about freedom? Where does it come from? It says in the Declaration that the source is a self-evident truth. This is our third truth, namely, that all men are endowed—not by the Bill of Rights, or the Constitution, or the statutes, or by common consent—but men are endowed, it says in the Dec­laration of Independence, by their Creator, by God himself, with cer­tain rights which are inalienable, that can’t be taken away from them. They spelled out two of them. One was life, and the other was liberty. That is significant. There are other inalienable rights, but the Founding Fathers postu­lated these two in plain terms, life and liberty. Life is still unassail­able in all civilized society, in­cluding ours. Murder is a heinous crime.

But what about liberty? In our Declaration liberty is made equally inalienable with life, a God-given, inalienable right, with­out which man loses his nature. It is freedom that sparks the dif­ferences of individual persons in­to action. How to preserve liberty? That is the hardest question of all. And that brings us to the fourth and final fact, and here is where lawyers come in. Mind you, right here is the point of a critical controversy. You say, “I will go along on God, and equality, and the creative source of rights. But what has the last fact, the last of the four cornerstones to do with it?” It appears in the same docu­ment. It is postulated as a self-evident truth. It says that “to se­cure these rights,” to protect these gifts of God, “governments are instituted among men.” Gov­ernment, as postulated by the Declaration of Independence, is a conservative agency. Its job is to preserve the gifts of God with which each man is endowed.

Servant Government, Subject to God

Now, how can government pre­serve these rights? Government is a servant. That is hackneyed, old hat in American terminology to­day, “Servant Government.” But how did government get to be a servant, and what keeps govern­ment from being a master? It is the fact of God, and of God’s crea­tion, that subordinates govern­ment to service. This fourth and final self-evident truth from your Declaration of Independence puts government down because it first puts God up. A master govern­ment cannot withstand competi­tion with God. And so when gov­ernment gets ready to become a tyranny, if it wants to maintain the logic of its tyrannical position, it must deny God. Most tyrants are sufficiently logical to do that, as is the one with which we are presently contending, Soviet Rus­sia.

The reason why Soviet Russia is godless is precisely because it pretends to be all-powerful. It can­not make a pretense of omnipo­tence and at the same time ac­knowledge an omnipotent God.

So the greatest guarantee the Founding Fathers accepted for the subordination of government to service rather than mastery was the acknowledgment of God, in the first place. That, as I see it, is why God is a very important political argument in the United States, an indispensable predicate of freedom. Without God, a serv­ant government doesn’t make sense. And unless your govern­ment is a servant, it is a master. Where government is master, no­body is free. It is just as simple as that.

But you can’t keep government in service merely by making a dec­laration that it is a servant. You have to have practical restraints, balls and chains. After they com­pleted the Declaration of Inde­pendence, the Founding Fathers immediately went into the fabrica­tion of our constitutional system. Now, let me tell you something, my friends. This constitutional system is a completely different and unique institution. The Dec­laration of Independence and the Constitution which followed it, both of which were designed to limit government to the service of men, were both unique, different, and revolutionary. What is the definition of a constitution? A limitation upon government. That is why constitutions are the sym­bols of liberty, precisely and only because liberty means limited gov­ernment.

Like Fire, a Dangerous Servant and Fearful Master

Liberty is limited government. I know that is not the philosophical definition but it is the practical definition. I go along with the theological experts who will say—and I agree—that liberty is mere­ly my right to do what I ought to do. I am not at liberty to kill the man next to me. I may have the power but not the liberty to de­stroy his right. But practically, liberty means limited government. What is the opponent of liberty throughout history? Is it the big corporation, the big union? No. The only institution that has de­stroyed human liberty irrevocably is big government. The Founding Fathers looked over 6,000 years of human history, and saw the God-given rights of man burned to a crisp at least once in every gener­ation by the fire of government.

George Washington once said, “Government, like fire, is a dan­gerous servant and a fearful master.” I will always remember that. “Government, like fire…” You may say, “You don’t mean it.” I do mean it. It is exactly like fire, useful, necessary, but at the same time the most dangerous instru­mentality on earth. We couldn’t get along without fire. Fire has been the cause of more disasters than any other one instrumental­ity in the history of the human race—and government is like that. We couldn’t get along with­out government, because we are a benighted race. But at the same time, unless you keep government as you keep fire, under control, checked and balanced, separated, divided, tied down, government will destroy you. That is the ra­tionale of our Constitution. It doesn’t make sense otherwise. Your government is not stream­lined for efficiency. On the con­trary, it is hobbled for inefficiency. The most efficient type of govern­ment is an absolute despotism.

There is no inefficiency in the government of Soviet Russia, be­cause not more than twenty men in the Politburo now control the destinies of 200 million slaves, for that is what the poor, benighted, tortured Russian people are. So if you want efficiency in government, don’t look for liberty. There is an association of opposites in the idea of governmental efficiency and hu­man freedom.

To Conserve These Rights

As lawyers, it will be your job to keep government at work at the preservation of rights. To se­cure these rights, you are going to be admitted to the bar. Can you think of any other service you are going to have as a lawyer? When you go into court, you represent a client to protect his rights. You are an officer of the court. The court is an implementation of gov­ernment. The law itself is an im­plementation of government. The law is a protective, a conservative device, if you please.

The law is a “department of conservation,” and you are one of its officers. Everything you do for a client, in your office or out, that is honorable and ethical, will be done to preserve his rights under God and the law. Your profession, therefore, is a conservative pro­fession, because you are trying to keep this client as you found him, trying to preserve him, his person and his property and his liberty. The lawyer who is on the other side, who represents the state, in a criminal case, is trying to pre­serve the liberty of the man who was defrauded, or the man who was maimed, or murdered per­haps. From the beginning to the end of every lawsuit you are in the process of conservation. Con­sequently, I think that the divi­sion of our population into right and left, and conservative and liberal, is a fragmentation of the proper meanings of words.

That, in brief, is why I am a conservative. As a lawyer I feel that I must be a conservative. I must uphold the traditions of this “department of conservation” to which I belong. I think, as a law­yer, I must conserve American moral and cultural resources against the exploitation of those who would use government to des­troy them. And so I think “lib­eral,” when it is used as the op­posite of “conservative,” is a most unfortunate contradiction in terms. For that reason, as I said at the outset, I am inclined to be anti-semantic.

  • Former Dean of the School of Law, University of Notre Dame, Dr. Manion now heads theManion Forum. From an address at the Yale Law School.