People v. State

I occasionally wonder whether by asserting on this blog what I asserted in my last post — that the U.S. Constitution and the entire State resting on it is of No Authority — I put my license to practice law in jeopardy. After all, not that many years ago, before I knew better, and although I don’t remember doing so, I presumably was required as a condition for admission to the practice of law to solemnly swear or affirm that “I will support the Constitution of the United States.” I haven’t researched the question, and doubt there’s any case law on it. If it were to turn out, after a disciplinary proceeding, an adverse state supreme court decision and a petition for writ of certiorari to the U.S. Supreme Court, that I do not in fact have a First Amendment right to express this opinion while continuing to practice law, then so be it. The case would be a fitting end to my legal career, which began with something as important and as defeated. Although I am not aware of any case law on the issue, there is this argument made by Lysander Spooner in his 1835 letter To the Members of the Legislature of Massachusetts:

In the first place, I object to the oath to bear true allegiance to the Commonwealth, and to support the Constitution. The right of rebelling against what I may think a bad government, is as much my right as it is of the other citizens of the Commonwealth, and there is no reason why lawyers should be singled out and deprived of this right. My being a fried or an avowed enemy of the constitution has nothing to so with the argument of a cause for a client, or with any other of my professional labors, and therefore it is nothing but tyranny to require of me an oath to support the constitution, as a condition of my being allowed the ordinary privileges for getting my living in the way I choose. It will be soon enough, after I shall have been convicted of treason, to refuse me the common privileges, or take from me the common rights of a citizen to decry and expose the character of the constitution, and if possible to bring it into contempt and abhorrence in the minds of the people, without forfeiting any of the ordinary privileges of citizens – and the recognition of this right constitutes one of the greatest safe guards of the public liberty. And if any one class of men, the moment they attempt to prove that our constitution is not a good one, and ought to be abolished, are to be denied any of the ordinary rights and privileges of citizens, then has that class been singles out for the especial tyranny of the government. There would be just as much propriety in requiring a farmer to take an oath to support the constitution, as a condition of his being allowed the privilege of being allowed to enter his deed of record in a public recording office, as there is in requiring it of me, as a condition of my being allowed the privileges of an attorney. There would also be the same propriety in requiring this oath of the members of a manufacturing corporation, as a condition precedent to their receiving an act of incorporation, as there is in requiring it of me.

My last post was construed by Jeff Gamso as acknowledging, inconsistently, some authority in the common law but none in the Constitution. In fact, to clarify, my opinion is that “political authority,” whether purportedly derived from the Constitution or from the common law, is an oxymoron. See, e.g., John Hasnas’ The Depoliticization of Law.  The authority, or right to rule, of a person, act, judgment, procedure, or doctrine which does have genuine authority is not something extrinsic to it, but intrinsic, and speaks for itself, though much might be said on its behalf. (Only a just man has authority to judge, and only his just judgments have authority to bind.) The First Amendment to the Constitution has such authority. The Sixteenth Amendment does not. Is that just my subjective opinion? I don’t think so, though others might.

A list of legitimate grievances could be leveled against the present government of the United States that is longer than the list of grievances against the King of Great Britain that the American Revolutionaries believed justified their Declaration of Independence. Implicit in their justification of rebellion was the understanding that the State had no authority to commit any of the injustices enumerated therein, nor any injustices not enumerated, even though “all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.”

Forms of government could have been, and could be, instituted that are less destructive of the proper ends of government than the Constitution has proven itself to be.

Better forms of government would take seriously the principle that government derives its just powers from the consent of the governed:

One mind, indeed, came within reaching distance of the fundamentals of the matter, not by employing the historical method, but by a homespun kind of reasoning, aided by a sound and sensitive instinct. The common view of Mr. Jefferson as a doctrinaire believer in the stark principle of “states’ rights” is most incompetent and misleading. He believed in states’ rights, assuredly, but he went much farther; states’ rights were only an incident in his general system of political organization. He believed that the ultimate political unit, the repository and source of political authority and initiative, should be the smallest unit; not the federal unit, state unit or county unit, but the township, or, as he called it, the “ward.” The township, and the township only, should determine the delegation of power upwards to the county, the state, and the federal units. His system of extreme decentralization is interesting and perhaps worth a moment’s examination, because if the idea of the State is ever displaced by the idea of government, it seems probable that the practical expression of this idea would come out very nearly in that form.²³

There is probably no need to say that the consideration of such a displacement involves a long look ahead, and over a field of view that is cluttered with the debris of a most discouraging number, not of nations alone, but of whole civilizations. Nevertheless it is interesting to remind ourselves that more than a hundred and fifty years ago, one American succeeded in getting below the surface of things, and that he probably to some degree anticipated the judgment of an immeasurably distant future.

In February, 1816, Mr. Jefferson wrote a letter to Joseph C. Cabell, in which he expounded the philosophy behind his system of political organization. What is it, he asks, that has “destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all powers into one body, no matter whether of the autocrats of Russia or France, or of the aristocrats of a Venetian senate.” The secret of freedom will be found in the individual “making himself the depository of the powers respecting himself, so far as he is competent to them, and delegating only what is beyond his competence, by a synthetical process, to higher and higher orders of functionaries, so as to trust fewer and fewer powers in proportion as the trustees become more and more oligarchical.” This idea rests on accurate observation, for we are all aware that not only the wisdom of the ordinary man, but also his interest and sentiment, have a very short radius of operation; they can not be stretched over an area of much more than township-size; and it is the acme of absurdity to suppose that any man or any body of men can arbitrarily exercise their wisdom, interest and sentiment over a state-wide or nation-wide area with any kind of success. Therefore the principle must hold that the larger the area of exercise, the fewer and more clearly defined should be the functions exercised. Moreover, “by placing under everyone what his own eye may superintend,” there is erected the surest safeguard against usurpation of freedom. “Where every man is a sharer in the direction of his ward-republic, or of some of the higher ones, and feels that he is a participator in the government of affairs, not merely at an election one day in the year, but every day;… he will let the heart be torn out of his body sooner than his power wrested from him by a Caesar or a Bonaparte.”

Better forms of government would safeguard inviolate the right of juries to judge the justice of the laws they are asked to apply.

Better forms of government would place principled limits on taxation.

Better forms of government would limit our military forces to home defense purposes.

Etc.

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