The rule of law depends as much on citizen virtue as on constitutional structure. And our collective civic virtue is currently under strain
Editor’s note: In his April 4 address at the general conference of The Church of Jesus Christ of Latter-day Saints, President Dallin H. Oaks spoke of his belief that “the United States Constitution contains at least five divinely inspired principles”: popular sovereignty, the separation of powers, federalism, individual rights and the rule of law. This is the final essay in a five-part series that addresses each of these principles.
Americans often note proudly that ours is the oldest written constitution still in force anywhere in the world. We are right to be proud, but some might quibble with our chronology. The most venerable constitution, they might argue, applies only in Massachusetts.
Drafted in 1779 and ratified in 1780, the Massachusetts constitution was perhaps the most influential of the state charters adopted between the Declaration of Independence in 1776 and the activation of the U.S. Constitution in 1789. (As an example of experimental federalism in action, the national Constitution drew liberally on the best features of state constitutions.) Like the U.S. Constitution, the Massachusetts constitution provided for a bicameral legislature, a strong chief executive (the governor) with a veto power over legislation, and an independent judiciary. The Massachusetts constitution enshrined the core principles discussed earlier in this series: popular sovereignty, individual rights and the separation of government powers.
Remarkably, this far-sighted, influential and enduring document was largely the work of a single mind and pen. They were the mind and pen of a Braintree, Massachusetts, lawyer by the name of John Adams.
John Adams was a colorful character — proud, pugnacious, cranky, opinionated, stubborn, sturdy, loveable, generous, magnanimous, fearless, talkative, blunt and honest to a fault. He loved his country passionately and was loyal through and through. He was the funniest of the founding fathers, as well as the hardest-working and best-read. To my taste, he was also the best writer. (Jefferson might have been a more elegant stylist, but I would take Adams’s pungent, potent, pictorial prose over Jefferson’s controlled cadences any day of the week.)
Adams was a deep, broad and penetrating thinker, and he thought about political philosophy until the last day of his nine-decade life. Political science, Adams believed, was the science of human happiness. That made it, in his view, the most important science of all.
In the spring of 1776, Adams pushed a resolution through the Continental Congress that all the states should draft their own, independent constitutions — a resolution that, in Adams’s view, should be regarded as the real declaration of independence. That same year, to help the states in their efforts, Adams wrote “Thoughts on Government,” a concise and incisive handbook on constitutional drafting. Aside from Tom Paine’s “Common Sense,” Adams’s tract was the most influential political pamphlet of that historic year. When Adams drafted a constitution for Massachusetts, he largely followed his own advice.
One of the remarkable features of Adams’s draft was that it outlined the why as well as the what of constitutionalism. “In the government of this commonwealth,” Part One concluded, “the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men.”
The purpose of the separation of powers, then — as well as of other constitutional principles — was to establish the rule of law. It was to prevent arbitrary, unlimited, or tyrannical rule. It was to ensure that governors and governed alike obeyed the rules of the game.
The concept is beguilingly simple and tremendously powerful. America’s founders were familiar with Edward Gibbon’s assessment of history as “little more than the register of the crimes, follies and misfortunes of mankind.” Much of the criminality, folly and misfortune, they believed, was the work of unconstrained rulers — rulers who thought themselves above the law, acted on that belief, and got away with it.
The U.S. Constitution was designed to prevent this. Never, in an independent and unified America, would a tyrant rule with absolute sway — changing the laws whenever he pleased or flouting the laws at will. Nor would there be an American Caligula, the Roman tyrant who reportedly published the laws at the tops of tall pillars, where citizens could not read them. In the American Republic, the laws would be accessible and clear — within the reach of every citizen.
The rule of law requires that laws apply only prospectively (hence the Constitution’s ban on ex post facto laws, which retroactively criminalize behavior that was legal when performed) and that they apply generally to all citizens (hence the Constitution’s ban on bills of attainder, which single out named individuals or groups for special punishment or unfavorable treatment). The rule of law honors human freedom by creating the conditions under which all citizens can plan the course of their future lives. Where the rule of law prevails, citizens know what is legal and what is not. They know how to order their lives to comply with the laws. They know that the law applies impartially to everyone, that it has no favorites and no foes. They know that their lives are governed by the provisions of written laws, not by the whims of untamed rulers. Theirs, they know, is a government of laws and not of men.
The rule of law, to repeat, is a precondition for human freedom. But the rule of law also has preconditions of its own. John Adams knew this well, and he spent a lifetime worrying whether those preconditions were secure. He described some of them in the Massachusetts constitution itself. One was education. “Wisdom, and knowledge, ... diffused generally among the body of the people, being necessary for the preservation of their rights and liberties,” Adams wrote, “... it shall be the duty of legislatures and magistrates ... to cherish the interests of literature and the sciences, and all seminaries of them.” The government, Adams continued, had a duty “to encourage private societies and public institutions ... for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and a natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and frugality, honesty and punctuality in their dealings; sincerity, good humor, and all social affections, and generous sentiments among the people.”
This was an ambitious legislative agenda, if ever there was one. (I, for one, would appreciate more “good humor” among today’s politicians and the people at large.) But Adams knew that although the government might “cherish” education and “encourage” civic graces, it could never compel them. The same was true of what Adams regarded as the most essential precondition of republican government. “Our Constitution,” he observed of the federal one, “was made only for a moral and religious people. It is wholly inadequate to the government of any other.”
But a government committed to religious liberty can’t compel people to be moral and religious. Nor can a government committed to liberty more generally compel the other preconditions of the rule of law. Writing in 1967, a German thinker named Ernst-Wolfgang Bӧckenfӧrde described the dilemma this way: “The liberal, secular state depends on conditions that it cannot guarantee.”
Bӧckenfӧrde was not using “liberal” and “secular” in a partisan or polemical way. By “liberal,” he meant only a state committed to liberty; by “secular,” he meant a state without an official church. His point was that a free state cannot survive unless its citizens are committed to freedom. But the state can’t require such commitment without ceasing to be free.
In a similar way, the rule of law cannot survive without what has been called “obedience to the unenforceable.” Without unenforced obedience to law, you can never have enough police officers. But obedience to the unenforceable is, by definition, unenforceable. The rule of law requires moral commitments that the law alone cannot ensure. This is republican government’s greatest dilemma, its most enduring danger. As Bӧckenfӧrde put it, “This is the great gamble that” constitutional governments “have undertaken for the sake of freedom.”
It is a gamble whose outcome depends on us. The rule of law is the grand constitutional principle that encompasses all others. But the rule of law depends as much on citizen virtue as on constitutional structure. And our collective civic virtue is currently under strain.
For America’s founding generation, “virtue” had a concrete meaning: it meant placing the common, public good ahead of selfish, private interests. Virtue, for the Constitution’s framers, meant public-spirited sacrifice.
Such virtue now seems in short supply. Perhaps it always has been. John Adams spent at least 60 years lamenting the lack of virtue among the Americans of his day. But today we seem to lack even a common sense of the civic virtue toward which we aspire. We lack not only virtue but a shared definition of virtue.
Too many today think of virtue primarily in terms of how one votes and what one (re)tweets. Too many would rather signal virtue than cultivate it. Too many engage in showy self-assertion; too few practice quiet self-denial. Virtue, in our day, has largely become a question of joining the right team — of flagging, in approved ways, that one belongs to the right side.
But being on the right side, I contend, is less important than doing the right things. Virtue is less a matter of partisan allegiance than a question of personal character.
As this series closes, let me suggest that the best way to defend and sustain the Constitution is to start close to home. Indeed, you might best start at home. For the Constitution rests upon the foundation of a host of supporting institutions — local governments, volunteer organizations, churches, schools, neighborhoods and, above all, families.
If you want to uphold the Constitution, it wouldn’t hurt to learn a bit more about it. I hope that these essays have contributed modestly toward that end. But you will serve the Constitution and the country even more valiantly if you make some personal sacrifices to inculcate in the rising generation a love for those virtues that John Adams extolled: education, art, science, literature, humanity, benevolence, industry, frugality, punctuality, honesty, sincerity, generosity, good humor and charity.
Surely, as Saint Paul proclaimed, “the greatest of these is charity.” But while we’re at it, let’s not neglect good humor. Somewhere in civic heaven, John Adams will be smiling.
Justin Collings is a professor at Brigham Young University Law School and a fellow at the Wheatley Institution.
from Deseret News https://ift.tt/3uzCkq4
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