Friday, July 31, 2009
Saturday, July 25, 2009
Thursday, July 23, 2009
I will not willingly cede more power to anyone, not to the state, not to General Motors, not to the CIO. I will hoard my power like a miser, resisting every effort to drain it away from me. I will then use my power, as I see fit. I mean to live my life an obedient man, but obedient to God, subservient to the wisdom of my ancestors; never to the authority of political truths arrived at yestereday at the voting booth.—William F. Buckley Jr., Up from Liberalism.
Tuesday, July 21, 2009
The mischiefs that have arisen to the public from inconsiderate alterations in our laws, are too obvious to be called in question; and how far they have been owing to the defective education of our senators, is a point well worthy the public attention. The common law of England has fared like other venerable edifices of antiquity, which rash and unexperienced workmen have ventured to new-dress and refine, with all the rage of modern improvement. Hence frequently its symmetry has been destroyed, its proportions distorted, and its majestic simplicity exchanged for specious embellishments and fantastic novelties. For, to say the truth, almost all the perplexed questions, almost all the niceties, intricacies, and delays, (which have sometimes disgraced the English, as well as other courts of justice,) owe their original not to the common law itself, but to innovations that have been made in it by acts of parliament, “overladen (as Sir Edward Coke expresses it) with provisoes and additions, and many times on a sudden penned or corrected by men of none or very little judgment in law.” This great and well-experienced judge declares, that in all his time he never knew two questions made upon rights merely depending upon the common law; and warmly laments the confusion introduced by ill-judging and unlearned legislators. “But if,” he subjoins, “acts of parliament were after the old fashion penned, by such only as perfectly knew what the common law was before the making of any act of parliament concerning that matter, as also how far forth former statues had provided remedy for former mischiefs and defects discovered by experience; then should very few questions in law arise, and the learned should not so often and so much perplex their heads to make atonement and peace, by construction of law, between insensible and disagreeing words, sentences, and provisoes, as they now do.”—Sir William Blackstone, Commentaries on the Laws of England, volume 1 (1753).
Friday, July 10, 2009
- Idaho state constitution preamble: "We, the people of the state of Idaho, grateful to Almighty God for our freedom, to secure its blessings and promote our common welfare do establish this Constitution."
- Washington state constitution preamble: "We, the people of the State of Washington, grateful to the Supreme Ruler of the Universe for our liberties, do ordain this constitution."
Now, Washington and Idaho are two very different states, demographically, economically and politically. Yet, if one looks at these preambles, they display a remarkably consistent theory of the origin of the state and the basis of our rights. Both charters state that the foundation of the authority of the government is with the people. It is the "people" of each state who enact the constitution of each state. The language in the preambles to this effect are clear and unambiguous, "establish," and "ordain." It is the people of each state who create and are the basis of the authority that undergirds each state's constitution. In that sense, the constitutions are populist and democratic.But that doesn't mean that the people are unconstrained in their actions or that the people themselves are the source of the freedom that is secured by each constitution. The preambles make clear that the freedoms enjoyed by the people are not their own creation, but stem from a transcendent source. The Idaho constitution expressly identifies this transcendent source of rights as "Almighty God." The Washington constitution uses more deistic language, "the Supreme Ruler of the Universe." But in each case, it is clear that the Deity is being invoked, and that the Deity is the source of rights. The Idaho constitution proclaims gratitude to God for the freedom enjoyed by the people of that state. The Washington constitution likewise proclaims gratitude to the Deity for the "liberties" of the people. The message of these two state constitutions is plain. While government's authority comes from the people, neither the people nor the government are the source of our rights and freedoms. Rather our rights and freedoms come to us as a gift from the God who stands beyond our legal and political systems, who governs the universe by his almighty power.
This insight is not unique to the Washington and Idaho constitutions, or to the American political and legal tradition in general. It arises in several places outside our own system. For example, it is one of the foundational ideas discussed by the French thinker Frederic Bastiat in his wonderful book The Law. As Bastiat puts it quite forcefully:
Life, faculties, production — in other words, individuality, liberty, property — this is man. And in spite of the cunning of artful political leaders, these three gifts from God precede all human legislation, and are superior to it. Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.
Note that Bastiat makes essentially the same point as the one expressed in the preambles of the Washington and Idaho constitutions: our rights come not from the government and its largese to us, but rather come from God as a gift. Bastiat then states that far from our rights being the result of the government's laws, our rights are the source of the government's laws! This is a very similar point to that made in the Idaho and Washington constitutions.
"We ought to have a simple-speaking rule: one idea per sentence, with no unnecessary adjectives or adverbs. That’s something you don’t find in almost anything a lawyer writes."Sage advice. I know that it is advice that I need to hear! I tend to be too wordy when I write and when I speak. I guess it's a carry-over from my youth when that's how I thought lawyers should communicate. Not that this is a problem that is unique to me. Back in the bad-old-days lawyers got paid by the word, and editors were scarce!