Can This Marriage Be Saved? W. Burt

WILLIAM D. BURT Can this Marriage Be Saved? THE AMERICAN EXPERIMENT in government has often and most accurately been described as a marriage of democratic and re publican ideals - one which many of us think is going on the rocks. More than any amount of Bicen tennial hokum, events themselves compel us to re-examine ,vhy Lib erty 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 tempo rary 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 Mr. Burt is a senior majoring in political science at the State University of New York at Ge neseo, after which he hopes to attend law school. 230 the conceptual disarray and dis content 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 pro liferation 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 ac tion. A well-reasoned antipathy to human rulers has extended itself, and become pathological. Burning still in our collective memory are 1975 CAN THIS MARRIAGE BE SAVED? 231 the days when "reason" was the rope that tied heretics to the stake. So it is that intelligent peo ple can be heard to deny the ex istence of hard-and-fast princi ples, 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 la,v, 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 ob jective 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 de termine what is law, but is him self 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 J us tice Oliver Wendell Holmes. In describing the law as a "predic tion of what the courts will do, t, Holmes succeeded in erecting the courts as a sovereign accountable, not to any eternally fixed princi ples, but simply to their own per ception of the popular win.

Th~ 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 phenom ena also govern the law, but the no tion that a given system, ours, for instance, can be worked out like math ematics 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 de cision 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, HarvaTd Law Review, pp. 457-468.) How different is Holmes' decla ration from a popular saying of Revolutionary days: "We hold these truths to be self-evident!"

232 THE FREEMAN April 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 es pecially persuasive aura; it sounds "realistic," "the way it really works." And one cannot blame an other 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" a.ccu rately depicts the nature of law. I think not. Ooherence 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 Con stitution intended to draw just such a distinction between brute rule and legitimate government by law. They recognized that all gov ernments 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 mean ing of their own, their creation having been authorized by original Framers, accomplished by sub sequent 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 af fronted its subjects' conception of natural right. The concern of the Constitutional Convention was, of course, to legitimate their own au thority to make and impose a sys tern; and in persuading the popu lace not to rise up against them they were admirably successful.

Now, if all successive adminis tra tions were to have held only that authority which was dele gated under the Constitution, then our entire body of law could in deed have been worked out "like mathematics," insofar as the Eng lish language could be made to communicate exact meaning. Few ordinary citizens, much less Jus tice Holmes, would be very seri ously troubled to see the logic of all things legal, and "strict con structionism" would by compari son 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 au thority of "We, the People," then presumably the government there after continued as the agent of 1975 CAN THIS MARRIAGE BE SAVED? 233 "the People." This is the assump tion with which constitutionalism could not contend, and which a system of democratic elections strengthened - though the as sumption itself is never put to a vote. The obvious fact is that suc cessive 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 ca veat against inconsistent amend ments, insisted that it be accom plished 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 adminis trations lost no time in exercising not only delegated powers, but al so their inherent imperium, sub verting the former's limitations with the latter. So one cannot ex pect to confine government, by ap peal to "the Constitution," to those strictures and checks which it finds onerous; the People's agent enjoys the right to ignore, blas pheme, amend, or rej ect altogether that which it has wrought before hand. What hope could possibly remain that government would long remain limited?

No recourse is left but an ap peal to logical consistency - tra ditionally 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 pre vail "A Decent Respect for the Opinions of Mankind." Though hardly sanguine about popular rule, these men undespairingly leaned upon an enlightened minor ity to henceforth remind the pub lic that the sanctions and powers of the Constitution could not sen sibly be divorced from its limita tions, that such a rude move would destroy a system designed to work as a unified whole. This was per haps a reasonable faith in an era when the evidence was everywhere fresh in mind that a "mutable pol icy," 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 vol uminous that they cannot be read, or so incoherent that they cannot be un derstood; if they be repealed or re vised before they are promulgated, or 234 THE FREEMAN April undergo such incessant changes that no man, who knows what the law is today, can guess what it will be to morrow. 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 consis tent interpretation found its back ground in a string of similar doc trines 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 dissemi nated before its offenses become punishable; and secondarily that its terms be put in operational (and not merely stipulative, in definite, 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 se curing 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 Consti tution by the vehemence with which the Framers defended it; Hamilton in particular declared that a Bill of Rights was super fluous, that the Constitution itself guaranteed all those popular free doms which had been so carefully enshrined in the Articles of Con federation. The public was pru dently 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 slav ery, before that staggering anom aly to freedom was eradicated?

No small amount of it lives on to day to excuse continuing inequal ity before the law according to occupation, class, or other arbi trary 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 hasJ ought to be exercised by established and pro mulgated 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 Prop erty, will be at the same uncertainty as it was in the state of Nature. (Sec ond Treatise on, Governwnt, ed. Pe ter Laslett [New York, Cambridge University Press, 1963J 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 1975 CAN THIS MARRIAGE BE SAVED? 235 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 it self; try as they might, the Fram ers could not design an adminis tration 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 constitu tional government would be com plete without touching upon the role of the Supreme Court in de fending the Framers' intent. Limitations of this kind can be pre served in practice no other way than .through the courts of justice, whose duty it must be to declare all acts con trary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights and privileges would amount to noth ing ... The courts of justice are to be considered as the bulwarks of a lim ited 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 Hamil ton, Federal'ist 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 exi gencies, and the impatient stamp ings of the better-organized in terest groups. Not surprisingly, all the checks and balances have become bulwarks of State power. Presumption often supplants vigi lance, 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 Fed eral 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 en joy the prerogative of "deciding each case on its merits." Can we not lament this trend all the more because use of these areas of au thority is growing, and because the police power, for example, is at best impUed, and not once men tioned in the Constitution, while the Framers demanded an "inflex ible and uniform adherence to the rights ... of individuals"?

One cannot fail to be impressed that the Constitution's authors 236 THE FREEMAN April were better cognizant of the crit ical historical tendencies of gov ernment than many are today. They knew of Power's clever usur pation 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 re markable 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 govServant Governments ernment. It remains true today that this Constitution ought to be a conclusive test of the proposi tion 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 tech nical 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 gov ernment is to work. ~ IDEAS ON LIBERTY SEEN IN PERSPECTIVE, this constitutional system, which is our Aluerican form of government, is a veritable latticework of barbed wire entanglements thrown around every governmental official in the land. It is a pattern of slow motion and inefficiency which no "expediter" would tolerate for five minutes in any private business organization. Is it any wonder therefore that the eager-beavers of modern jurisprudence chafe under these impediments to prompt and efficient public service? What possible answer can be made to the ever swelling chorus which demands that our antiquated form of government be streamlined toward centralized authority and sharpened responsibility? There is no answer - except one. That answer is drawn from the substance which this complicated for-m was built to hold safe and secure.

The men who fashioned this form of government were thinking of John Doe's life, liberty and pursuit of happiness. Their princi pal concern was not with the efficiency of government, but with the safety of the God-created human personality ... CLARENCE MANION, The Key to Peace I~I SEJ.\RCI-I OF FREEfJOJ'I\ BEN MOREELL THE THEME of this meeting is "Freedom." And I have been asked to study the problem of "preserv ing our freedom." My dictionary defines "free dom" as "liberation from restraint or from the power and control of another." In the course of my studies there arose in my mind certain doubts, which merged into fears. I began to wonder whether we Americans have lost our zest for freedom: whether we really be lieve in liberation from restraints as a desirable way of life. I found evidence that many of us believe tha t we cannot trust freedom because we are afraid it will not work! So we vote against freedom and for governmental restraints at almost every opportunity!