July 4, 2009

A Nation Of Lawyers

Were I to suggest that the American War of Independence was fought for legal procedure, I would clearly overstate my case. But the precipitating causes of that war were, to a very significant degree, rooted in issues of legal procedure, and in particular criminal procedure. On a day-to-day basis, laypeople are familiar with this sort of thing only in the Miranda warning they see on cop shows and in the movies. I hope that my Readers come here looking for something a little deeper than that.

Last year at this time, I broke down the Declaration, sentence by sentence, to help Readers understand what it is* really about. Today, I ask you to consider these items from the "list of grievances" portion of the Declaration of Independence -- the reasons why the colonists felt justified in rebelling against King and country -- and what they say about the kind of people those colonists were:
  • [King George III] has refused his Assent to Laws, the most wholesome and necessary for the public good.
  • He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
  • He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
  • He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.
  • He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
  • He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
  • He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.
  • He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.
  • He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation.
  • For protecting [British soldiers], by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States.
  • For depriving us in many cases, of the benefit of Trial by Jury.
  • For transporting us beyond Seas to be tried for pretended offences.
  • For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies.
  • For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:
  • For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
  • He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
Of matters of import and to political sovereignty, which is to say self-government, Jefferson lists a smaller number:
  • [The King] has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
  • He has affected to render the Military independent of and superior to the Civil Power.
  • For quartering large bodies of armed troops among us.
  • For cutting off our Trade with all parts of the world.
  • For imposing Taxes on us without our Consent.
  • He has abdicated Government here, by declaring us out of his Protection and waging War against us.
  • He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.
  • He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
  • He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.
By noting a quantitative diminishment in the colonists' grievances against the King, I do not intend to imply a qualitative diminishment; the imposition of martial law was and remains obnoxious to notions of decency and basic civil rights under any system of government. Yet even these, in many ways, are related in a more than tangential way to the idea of the government itself being subject to law rather than the arbitrary application of the will of the sovereign.

We tend to think of the Declaration of Independence as a purely political act on the part of the Founders, and this is at best an incomplete vision of what happened. Not only a political act, the Declaration of Independence was a statement about the importance of the rule of law.

The Declaration of Independence is a powerful statement of the ideals deepest to Americans and a claim that they are so important that we Americans are willing to fight and die to preserve them. It is rightfully thought of as an inspiration to the rest of the world and to future generations of those ideals. It speaks, extensively, on what the rule of law is and how the King had violated its principles. It meditates on how laws are to be made, enforced, and executed. And it dwells on this subject more than it does any other -- more than it articulates a political theory.

When I was sworn in to the bar, the judge administering the oath distinguished between "attorneys" and "lawyers." An "attorney," he explained, is someone who acts on behalf of someone else. That day, my friends and I were becoming attorneys; we were becoming licensed by the state to act on behalf of other people in the judicial system. But it was more important, the judge said, that we understand that a "lawyer" is someone who is knowledgeable about the law, who acts as a guardian and protector of the law. He told us that he was confident we would all go forth and be good attorneys -- but our challenge was to also be good lawyers.

As I read the Declaration of Independence, it says that we are, ultimately, a nation of lawyers -- a people who have dedicated themselves to the rule of law.

Happy Independence Day.**

* Please note my deliberate use of the present tense.
** Global Readers, of course, are welcome to join America's celebration and on behalf of my fellow Americans, I hope that you too live in societies that cherish the rule of law.

1 comment:

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