Stories, Learning & Place

Friday, July 10, 2009

Establishing the rule of law 16/24
   The way of the judge

The dominant story in English political history is of that nation’s gradual development from a feudal society into a society ordered according to law. A key moment occurred when parliament executed a king for ignoring the law.

Much was learned along the way in this, one of the great stories in history, of how political hierarchies could be formed that protected the dignity of individuals while meeting the community’s need for the order and stability. From Montesquieu, we took the idea of separation of powers, and from Hobbes the confidence to replace the authority of divine right with the authority of the governed to give their consent. Though it has been downplayed by moderns, the Bible was also powerfully influential on people trying to understand the central question of the Arthurian legend: how can force be subordinated to rightness?

The governments that resulted were far from perfect, of course, and coercion and force remained, just as oxygen and hydrogen remain in water, but a system of law grew out of them that made it increasingly possible for power to be transferred without assassination, for wrongs to be redressed taking into account developing ideas about justice instead of mere strength, and the stability that resulted made life less terrifying. This system developed slowly, and often at great cost, over centuries. Concepts such legal constraints against government search and seizure were not thought up by philosophers concerned with abstract notions of right so much as they were figured out in bloody struggle.

One of the clearest expositions of what is possible in the realm of law is the American Constitution. It is the oldest national constitution on the planet. Others have come and gone, but, so far, it has endured, though it has been corrupted in dramatic ways. It is durable because it is founded on basic insights into the ecology of human systems. Drawing on centuries of accumulated wisdom from Athens, London, Rome, and Jerusalem, the American revolutionaries invented far less often than they codified the learning their predecessors had won by hard experience.

Among the brightest of many bright stars in that generation was James Madison. Madison’s role as “father” of the Constitution is less dramatic than Washington’s military leadership or Jefferson’s vivid rhetoric in the Declaration of Independence. His ill health and weak voice didn’t make him a formidable soldier or a dynamic orator, but he had other gifts. His reason and intelligence prevailed over many flashier opponents. He was a tremendous systems thinker, more coherent than Jefferson and more serene than Adams.

At college he was ravenous for learning. He slept only five or so hours a night, giving himself to the study of human nature through Greek and Latin authors, and his letters are full of easy references to Fielding, Hume, Butler, Swift, Pope, and, most important, Locke. But he also had direct experience in the bare-knuckle politics of his time. He had grown up in a Virginia dominated by the Church of England, and he had seen how quick the pious were to persecute those who believed differently.

His first involvement with politics was triggered when a Baptist elder was imprisoned for praying in a private home, and Baptist ministers were arrested for preaching without a license. Such acts of state authority infuriated him. He was elected to the Virginia Convention in 1776, only twenty-five years old, and he committed his energies to overcoming a powerful central government that abused people’s rights.

Like most who helped with the Constitution, his wisdom was earned in the heat of real conflict. During 1780, as the British won victory after victory, quarrels, defeat, and treason provided daily challenges for Congress. When the British captured Charleston, making an invasion of the Carolinas likely, the colonies faced an emergency. The man Washington chose to command the southern army was accused of profiteering, so another man was appointed.

Politics overcame military judgment, but then the appointee was immediately defeated in battle and the southern army routed. Chaos and defeat closed in on the colonists, and many of them thought the only hope was help from the French. But even in this there was discord. Many distrusted France and thought that only trouble would come from an alliance.

Hostilities flared when an American delegate to France was accused of trying to get money for goods that had been a free gift from France. Powerful men such as John Adams supported the delegate and equally powerful men opposed him. Madison chaired the committee that met to decide his fate.

Eventually, the war was won and a new government was established under the Articles of Confederation. The revolutionaries’ fear of control by a new central government kept the federal government weak. In the heat of a Philadelphia summer, soldiers demonstrating to get back pay taunted the fledgling congress. When the men began drinking whiskey and making threats, the delegates asked state authorities to provide protection but received no guarantees. The U. S. Congress fled to Princeton in fear of the mob.

By 1783, Madison had learned that a strong central government wasn’t the only way to fail. He saw that the new national government had too little authority to survive. It couldn’t even defend itself from surly mobs.


Posted by Michael L Umphrey on 07/10 at 11:57 AM
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©2009 Michael L. Umphrey
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