The Landscape of the Law, part two

• We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution.  Charles Evans Hughes, Speech before the Chamber of Commerce, Elmira, New York (3 May 1907); published in Addresses and Papers of Charles Evans Hughes, Governor of New York, 1906–1908 (1908), p. 139.

GP: This is a very Jewish idea.  The Rabbis say: “Do not turn to the left or the right from all that they teach you.”

עַל פִּי הַתּוֹרָה אֲשֶׁר יוֹרוּךָ וְעַל הַמִּשְׁפָּט אֲשֶׁר יאמְרוּ לְךָ תַּעֲשֶׂה לא תָסוּר מִן הַדָּבָר אֲשֶׁר יַגִּידוּ לְךָ יָמִין וּשְׂמאל
דברים פרק יז: יא

GP: This is one side  of a central issue  encountered in interpreting the United States Constitution. Contrast this with Justice Robert Bork, s one of the most eloquent defenders of the Strict Constructionists – or Original Intent camp of Constitutional theorists. Justice Bork wrote The Tempting of America,  after he was rejected by Senate in the confirmation hearings for a Chief Justice.  Here is his introduction:

The Tempting of America by Robert H. Bork

“In the past few decades American institutions have struggled with the temptations of politics. Professions and academic disciplines that once possessed a life and structure of their own have steadily succumbed, in some cases almost entirely, to the belief that nothing matters beyond politically desirable results, however achieved. In this quest, politics invariably tries to dominate another discipline, to capture and use it for politics’ own purposes, which the second subject, – law, religion, literature, economics, science, journalism, or whatever – struggles to maintain its independence. But retaining a separate identity and integrity becomes increasingly difficult as more and more areas of our culture, including the life of the intellect, perhaps especially the life of the intellect, become politicized. It is coming to be denied that anything counts, not logic, not objectivity, not even intellectual honesty, that stands in the way of the “correct” political outcome… (gp: politics = private interests)
“What does it mean to say that a judge is bound by law? It means that he is bound by the only thing that can be called law, the principles of the text, whether Constitution or statute, as generally understood at the enactment. “

The attempt to distinguish the Rule of Law from the Rule of Man is outlined very beautifully in Wikipedia:

The rule of law is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials. It primarily refers to the influence and authority of law within society, particularly as a constraint upon behaviour, including behaviour of government officials.[2] The phrase can be traced back to 16th century Britain, and in the following century the Scottish theologian Samuel Rutherford used the phrase in his argument against the divine right of kings.[3]

Rutherford, Samuel. Lex, rex: the law and the prince, a dispute for the just prerogative of king and people, containing the reasons and causes of the defensive wars of the kingdom of Scotland, and of their expedition for the ayd and help of their brethren of England, p. 237 (1644): “The prince remaineth, even being a prince, a social creature, a man, as well as a king; one who must buy, sell, promise, contract, dispose: ergo, he is not regula regulans, but under rule of law….”

The rule of law was further popularized in the 19th century by British jurist A. V. Dicey. The concept, if not the phrase, was familiar to ancient philosophers such as Aristotle, who wrote “Law should govern”.[4]

The rule of law is a legal maxim whereby governmental decisions are made by applying known legal principles.[2] Such a government can be called a nomocracy, from the Greek nomos (law) and kratos (power or rule). The phrase can be traced back to 17th century and was popularized in the 19th century by British jurist A. V. Dicey. The concept was familiar to ancient philosophers such as Aristotle, who wrote “Law should govern”.[3] Rule of law implies that every citizen is subject to the law. It stands in contrast to the idea that the ruler is above the law, for example by divine right.

Despite wide use by politicians, judges and academics, the rule of law has been described as “an exceedingly elusive notion”[4] giving rise to a “rampant divergence of understandings … everyone is for it but have contrasting convictions about what it is.”[5] Wormuth, Francis. The Origins of Modern Constitutionalism, page 28 (1949).

At least two principal conceptions of the rule of law can be identified: a formalist or “thin” and a substantive or “thick” definition of the rule of law. Formalist definitions of the rule of law do not make a judgment about the “justness” of law itself, but define specific procedural attributes that a legal framework must have in order to be in compliance with the rule of law. Substantive conceptions of the rule of law go beyond this and include certain substantive rights that are said to be based on, or derived from, the rule of law.[6]

History
Although credit for popularizing the expression “the rule of law” in modern times is usually given to A. V. Dicey,[7][8] development of the legal concept can be traced through history to many ancient civilizations, including ancient Greece, China, Mesopotamia, and Rome.[9]

Antiquity
In Western philosophy, the Ancient Greeks initially regarded the best form of government as rule by the best men. Plato advocated a benevolent monarchy ruled by an idealized philosopher king, who was above the law.[10] Plato nevertheless hoped that the best men would be good at respecting established laws, explaining that “Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state.”[11] More than Plato attempted to do, Aristotle flatly opposed letting the highest officials wield power beyond guarding and serving the laws.[10] In other words, Aristotle advocated the rule of law:

It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws.[3]

According to the Roman statesman Cicero, “We are all servants of the laws in order that we may be free.”[12] During the Roman Republic, controversial magistrates might be put on trial when their terms of office expired. Under the Roman Empire, the sovereign was personally immune (legibus solutus), but those with grievances could sue the treasury.[7]

Rule of man
Rule of man is absence of rule of law. It is a society in which one person, or a group of persons, rules arbitrarily. The Sovereign exercises absolute authority and is not bound by any law, he as a person stands outside law. The philosopher Thomas Hobbes advocated such a society, saying that a society would be better if it had one absolute monarch as he would be free to choose and do what he thinks is best for the society without taking into account the opinions of others.

Others dissent by historical evidence that points in the opposing direction claiming the impermanence of the systems brought on by dictators like Joseph Stalin, Adolf Hitler and Mao Zedong which are remembered in having fared more by despotism than government system and thereby typifying the exertion of “rule of man” within their reigns. The results of which comprised violations to internationally recognized basic human rights. Relating the common inference of warning against the utility of such regimes that many have cited within the adage that Power corrupts and absolute power corrupts absolutely.

GP Note: Compare the efforts of the Judges to discover “Original Intent” – and the feuds between Jurists as to whether Original Intent is even needed, with the Talmudic Concept of: הדן דין אמת לאמיתו – “To arrive at the Truth to its fullest extent.”  How does the judge separate his own inclinations and political leanings from the judicial process? Perhaps he cannot. Certainly in Jewish Law, he cannot.  In Jewish Law, we rely on the absolute piety and integrity of the judge. How do we do this in secular law?

A study of  Supreme Court Cases from the 19th and 20th century is required to see where the Law changed according to the Political Leanings of the Judges. One excellent book that does this is Fred Rodell, Nine Men – unfortunately,  the book has no footnotes and does not give the name of each case.  He probably wrote it in two weeks time away from his library, as a vindictive against everything that he knew was wrong with the American Supreme Court. Peter Irons has written: A People’s History of the Supreme Court which is excellent and replete with notes.

The great question in any case study of Supreme Court Decisions is how political leanings are kept separate from The Rule of Law?
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GP: Despite Robert Bork’s sharp attack on The Supreme Court and Fred Rodell’s scathing analysis,  there is nevertheless a moral sense that weaves its way, most often, via dissenting opinions, in the conclusions of Supreme Court Decisions. Here is an eloquent statement on the nature of Law and Judicial Decisions, by one of the all-time greats in Supreme Court history. It comes very close to much of the material which I quoted in the Torah Sources above.

First from Associate Chief Justice Oliver Wendell Holmes, Jr. :
The following was written 109 years before Justice Robert Bork wrote The Tempting of America.

The object of this book is to present a general view of the common law. To accomplish this task, other tools are needed beside logic. It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intentions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men shall be governed. The law embodies the story of a nation’s development through many centuries and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been and what it tends to become.
…in substance the growth of the law is legislative…in its grounds. The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient for the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy…But hitherto this process has been largely unconscious. It is important, on that account, to bring to mind what the actual course of events has been. If it were only to insist on a more conscious recognition of the legislative function of the courts, as just explained, it would be useful.
…judges as well as others…openly discuss the legislative principles upon which their decisions must rest in the end, and base their judgments upon broad considerations of policy to which the traditions of the bench would hardly have tolerated interference fifty years ago. (Oliver Wendell Holmes Jr., The Common Law, 1881).

When we are dealing with words that also are a constituent act, like the Constitution of the U.S., we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. (252 U.S. 416, 433).
…the case before us must be considered in the light of our who national experience and not merely in that of what was said a hundred years ago. The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what the Amendment has reserved. (252 U.S. 433, 434.)

GP: Here is an amalgam of statements and dissents by one the great Supreme Court Justices:

Charles Evans Hughes (April 11, 1862 – August 27, 1948) was a Republican politician and jurist who served as Governor of New York, United States Secretary of State, Associate Justice and Chief Justice of the United States.

The following is taken from Wikiquote:
When we lose the right to be different, we lose the privilege to be free.

No greater mistake can be made than to think that our institutions are fixed or may not be changed for the worse.

While democracy must have its organizations and controls, its vital breath is individual liberty.

Our institutions were not devised to bring about uniformity of opinion; if they had we might well abandon hope.

I think that it is a fallacy to suppose that helpful cooperation in the future will be assured by the attempted compulsion of an inflexible rule.

• We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution.
o Speech before the Chamber of Commerce, Elmira, New York (3 May 1907); published in Addresses and Papers of Charles Evans Hughes, Governor of New York, 1906–1908 (1908), p. 139.

• While democracy must have its organizations and controls, its vital breath is individual liberty.
o Statement of May 1908, quoted in “Re authorization of The Civil Rights Division of The United States Department of Justice” (15 May 2003) US House of Representatives.

• No greater mistake can be made than to think that our institutions are fixed or may not be changed for the worse. … Increasing prosperity tends to breed indifference and to corrupt moral soundness. Glaring inequalities in condition create discontent and strain the democratic relation. The vicious are the willing, and the ignorant are unconscious instruments of political artifice. Selfishness and demagoguery take advantage of liberty. The selfish hand constantly seeks to control government, and every increase of governmental power, even to meet just needs, furnishes opportunity for abuse and stimulates the effort to bend it to improper uses. .. The peril of this Nation is not in any foreign foe! We, the people, are its power, its peril, and its hope!
o Conditions of Progress in Democratic Government (1909).

• A man has to live with himself, and he should see to it that he always has good company.
o As quoted in Ethics and Citizenship (1924) by John Walter Wayland, p. 208.

• When we lose the right to be different, we lose the privilege to be free.
o Address at Faneuil Hall, Boston, Massachusetts, on the 150th anniversary of the Battle of Bunker Hill (17 June 1925).

• The most ominous spirit of our times, as it seems to me, is the indication of the growth of an intolerent spirit. It is the more dangerous when armed, as it usually is, with sincere conviction. It is a spirit whose wrath must be turned away by the soft answers of a sweet reasonableness. It can be exorcised only by invoking the Genius which watched over our infancy and has guided our development— a good Genius— still potent let us believe — the American spirit of civil and religious liberty. Our institutions were not devised to bring about uniformity of opinion; if they had we might well abandon hope. It is important to remember, as has well been said, “the essential characteristic of true liberty is that under its shelter many different types of life and character and opinion and belief can develop unmolested and unobstructed.”
o Speech to the American Bar Association (2 September 1925).

• …[I]n three notable instances the Court has suffered severely from self-inflicted wounds. The first of these was the Dred Scott case. … There the Supreme Court decided that Dred Scott, a negro, not being a citizen could not sue in the United States Courts and that Congress could not prohibit slavery in the territories. … [T]he grave injury that the Court sustained through its decision has been universally recognized. Its action was a public calamity. … [W]idespread and bitter attacks upon the judges who joined in the decision undermined confidence in the Court. … It was many years before the Court, even under new judges, was able to retrieve its reputation.…[The second instance was] the legal tender cases decided in 1870. … From the standpoint of the effect on public opinion there can be no doubt that the reopening of the case was a serious mistake and the overruling in such a short time, and by one vote, of the previous decision shook popular respect for the Court.… [The third instance happened] [t]wenty-five years later, when the Court had recovered its prestige, [and] its action in the income tax cases gave occasion for a bitter assault. … [After questions about the validity of the income tax] had been reserved owing to an equal division of the Court, a reargument was ordered and in the second decision the act was held to be unconstitutional by a majority of one. Justice Jackson was ill at the time of the first argument but took part in the final decision, voting in favor of the validity of the statute. It was evident that the result [holding the statute invalid] was brought about by a change in the vote of one of the judges who had participated in the first decision. … [T]he decision of such an important question by a majority of one after one judge had changed his vote aroused a criticism of the Court which has never been entirely stilled.”
o “The Supreme Court of the United States: Its Foundation, Methods and Achievements,” Columbia University Press, p. 50 (1928). ISBN 1-893122-85-9.

• The power of administrative bodies to make finding of fact which may be treated as conclusive, if there is evidence both ways, is a power of enormous consequence. An unscrupulous administrator might be tempted to say “Let me find the facts for the people of my country, and I care little who lays down the general principles.”
o “Important Work of Uncle Sam’s Lawyers”, American Bar Association Journal (April 1931), p. 238, reprinting an address to the Federal Bar Association, Washington, D.C. (February 11, 1931), where the chief justice spoke of the “extraordinary development of administrative agencies of the government and of the lawyer’s part in making them work satisfactorily and also in protecting the public against bureaucratic excesses”, according to the article’s subtitle.

• We still proclaim the old ideals of liberty but we cannot voice them without anxiety in our hearts. The question is no longer one of establishing democratic institutions but of preserving them. … The arch enemies of society are those who know better but by indirection, misstatement, understatement, and slander, seek to accomplish their concealed purposes or to gain profit of some sort by misleading the public. The antidote for these poisons must be found in the sincere and courageous efforts of those who would preserve their cherished freedom by a wise and responsible use of it. Freedom of expression gives the essential democratic oppurtunity, but self-restraint is the essential civic discipline.
o As quoted in Charles Evans Hughes (1951) by Merlo J. Pusey, Vol. II, p. 794.
• I think that it is a fallacy to suppose that helpful cooperation in the future will be assured by the attempted compulsion of an inflexible rule. Rather will such cooperation depend upon the fostering of firm friendships springing from an appreciation of community ideals, interests, and purposes, and such friendships are more likely to be promoted by freedom of conference than by the effort to create hard and fast engagements.
o Opposing Article X of the Covenant of the League of Nations which would obligate members of the League of Nations to collective response. As quoted in Autobiographical Notes of Charles Hughes (1973) edited by D. J. Danelski and J. S. Tulchin.

• At the constitutional level where we work, ninety percent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections.
o Reported in Justice William O. Douglas, The Court Years (1980), p. 8.
• [Dissents are] appeals to the brooding spirit of the law, to the intelligence of another day.
o Reported in “Keeping Politics out of the Court”, The New York Times (December 9, 1984); quoted in The HarperCollins Dictionary of American Government and Politics (1992) by Jay M. Shafritz, p. 407.
Judicial opinions
• It is no longer open to doubt that the liberty of the press, and of speech, is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action. It was found impossible to conclude that this essential personal liberty of the citizen was left unprotected by the general guaranty of fundamental rights of person and property.
o Near v. Minnesota, 283 U.S. 697 (1931).

• But it is recognized that punishment for the abuse of the liberty accorded to the press is essential to the protection of the public, and that the common law rules that subject the libeler to responsibility for the public offense, as well as for the private injury, are not abolished by the protection extended in our constitutions. The law of criminal libel rests upon that secure foundation. There is also the conceded authority of courts to punish for contempt when publications directly tend to prevent the proper discharge of judicial functions.
o Near v. Minnesota, 283 U.S. 697 (1931).

• The exceptional nature of its limitations places in a strong light the general conception that liberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally, although not exclusively, immunity from previous restraints or censorship.
o Near v. Minnesota, 283 U.S. 697 (1931).

• Public officers, whose character and conduct remain open to debate and free discussion in the press, find their remedies for false accusations in actions under libel laws providing for redress and punishment, and not in proceedings to restrain the publication of newspapers and periodicals. The general principle that the constitutional guaranty of the liberty of the press gives immunity from previous restraints has been approved in many decisions under the provisions of state constitutions. The importance of this immunity has not lessened. While reckless assaults upon public men, and efforts to bring obloquy upon those who are endeavoring faithfully to discharge official duties, exert a baleful influence and deserve the severest condemnation in public opinion, it cannot be said that this abuse is greater, and it is believed to be less, than that which characterized the period in which our institutions took shape. Meanwhile, the administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous press, especially in great cities. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy consistent with constitutional privilege.
o Near v. Minnesota, 283 U.S. 697 (1931).

• In attempted justification of the statute, it is said that it deals not with publication per se, but with the “business” of publishing defamation. If, however, the publisher has a constitutional right to publish, without previous restraint, an edition of his newspaper charging official derelictions, it cannot be denied that he may publish subsequent editions for the same purpose. He does not lose his right by exercising it. If his right exists, it may be exercised in publishing nine editions, as in this case, as well as in one edition. If previous restraint is permissible, it may be imposed at once; indeed, the wrong may be as serious in one publication as in several. Characterizing the publication as a business, and the business as a nuisance, does not permit an invasion of the constitutional immunity against restraint. Similarly, it does not matter that the newspaper or periodical is found to be “largely” or “chiefly” devoted to the publication of such derelictions. If the publisher has a right, without previous restraint, to publish them, his right cannot be deemed to be dependent upon his publishing something else, more or less, with the matter to which objection is made. Nor can it be said that the constitutional freedom from previous restraint is lost because charges are made of derelictions which constitute crimes. With the multiplying provisions of penal codes, and of municipal charters and ordinances carrying penal sanctions, the conduct of public officers is very largely within the purview of criminal statutes. The freedom of the press from previous restraint has never been regarded as limited to such animadversions as lay outside the range of penal enactments. Historically, there is no such limitation; it is inconsistent with the reason which underlies the privilege, as the privilege so limited would be of slight value for the purposes for which it came to be established.

Nial Ferguson:
Few truths are today more universally acknowledge than that the rule of law – particularly insofar as it restrains the “grabbing hand” of the rapacious state – is conducive to economic growth. According to Douglass North, the inability of societies to develop effective, low-cost enforcement of contracts is the most important source of both historical stagnation and contemporary underdevelopment…”

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