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The Rule of Law, Part 2

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Note well that any contention that the United States of America was born out of a well-developed and unbridled libertarian philosophy does not square with historical fact. Ordinary candor and historical precision compel recognition that not all residents in the 13 colonies (or even a majority of those hardy men) would describe or agree with the principle of restrictive jurisdiction, let alone with a cohesive libertarian philosophy. While Jefferson and the ardent anti-Federalists and, to a lesser extent, Madison espoused the more libertarian ideology so elegantly expressed in the Declaration of Independence. Hamilton, Chief Justice John Marshall, and their compatriots, clung to the more established and conservative view of the state as the necessary repository of all unspecified power. Indeed, if one considers the Declaration draftsmen as embryonic libertarians in the mode of Samuel Adams and Roger Sherman, then one should also accept that most members of the Constitutional Convention 13 years later were early conservatives. In this regard, an observer might believe that the restrictive jurisdictional view survived but a short time and in an attenuated form and fashion at best. In fact, however, the tension between adherents to the competing doctrines continues to wax and wane, and it remains very much alive today. Moreover, one must certainly concede that the restrictive jurisdictional view prevailed at the Convention in the construction of the Federal system, and that it continued to preponderate in some respects until the Civil War threatened to tear the Union asunder.

However, different, and more established, juridical notions continued to dominate the state governments making up the newborn nation. For example, although virtually every state enacted bills of rights of some sort, recognizing and protecting certain elemental citizen activities from governmental intrusion, all such foundational governments subscribed to the tired old notion of the state as the possessor of all residual, unlimited power. Customarily their retained powers (sometimes referred to as the hallmarks of essential sovereignty) fell into three categories: police, exchequer (taxation), and eminent domain. The inherent drive to extend the states power to control residents and sojourners has resulted in ever more intensive and extensive intrusions into individual affairs, and each of these residual power categories historically played an ever-increasing role, a tendency that continues and abounds today.

The roots of power

Thus, the great 19th-century incursions customarily arose out of extensions of the police power, that amorphous supposed authority of the state to protect the health, safety, welfare, and morals of its citizens in matters affected with a public interest. If the power to tax individual productivity and the sibling power to confiscate individual property in the name of a public purpose and for a fair price related to a presupposed community good diminished during the 19th century, they most certainly have mounted a gigantic assault upon personal liberty during the past 100 years.

A coextensive presumed governmental authority coalesced with these standard residual powers and fueled the drive to ever-increasing control over individual human action during the 19th century. The federal government assumed ownership of all lands ceded to or conquered by the United States, and it used that authority to channel and command personal conduct, by doling out parcels for specified purposes to special people and groups, and by retaining rights to certain properties, attributes, and minerals.

Similarly, the individual states presumed ownership of all unoccupied land within their borders, again apportioning parcels to friends and supporters. Other than a few committed freedom philosophers, hardly any 19th-century Americans conceived of the more elegant concept that unused land, even within a sovereign state, should be left to the ownership of the first person to employ it in a nonforceful fashion.

One should never underestimate the tenacity of bad ideas. Modern times bear witness to common disregard of the foundational concept of restrictive jurisdiction and to the corresponding acceptance of the unlimited, theoretically benevolent, state as the sole and proper juridical form. Indeed, such state worship has taken on an almost religious fervor, coupled with a refusal to consider alternatives and a disdain for the hard lessons of history. In this cauldron of thought (or pre-reflection) competing statist ideas prevail.

During the Revolutionary times, even the British system of law relied on a disparate restrictive jurisdictional concept: for Sir Edmund Burke, for example, the rights of propertied Englishmen derived from a kind of testamentary devolution (he employed the landholding transfer term entailed) dating to the Magna Carta. (Lord Coke, in an earlier century, at least hinted at a more individual-human-rights view, later developed by John Locke.) In 1215 at Runnymede, lest we forget, King John did not cede his kingship nor did the feudal nobles secede from the realm; instead the competing parties agreed on a kind of procedural due process, far from any rule of jurisdictional limitation.

The current jurisdictional view parrots the past without recognition of the evils earlier systems produced, let alone an understanding of the present miasma enveloping Americans. Disregarding sundry disguises, modern thought generally accepts the nation-state as holding the ultimate reservoir of all power, generally for some silly notion of the common good or the national interest. The sibling ideas of fascism and socialism hold sway: the individual must bow to the state, the majority, the community, the national will or some similar high-sounding label for tyranny and slavery. Too few citizens see themselves as sovereign within their own sphere and as mere sojourners within the artificial territorial confines of a state. Too few of us comprehend that we have and deserve all rights as individuals as long as we do not aggress against another, and that the greatest aggressor of all is the state, whether it acts in the name of some person or group or presupposed majority, or acts on its own and for its own aggrandizement.

A government of laws?

Defenders of the existing system assure us that our nation is governed by a government of laws and that the government is subject to the rule of law in the same fashion all individual citizens and residents are. This announcement proves too much and intentionally clouds the basic issue. If the state possesses unlimited jurisdiction, it may make and enforce any law it deems appropriate; therefore, the government decides in the first instance the nature and content of the law to which it is subject, and it does so without any real restriction. For one example among many, the federal government and most American state governments today endorse and apply some notion of sovereign immunity derived from the ancient doctrine that the king can do no wrong. Simply put, this discarded idea shields the government from unwanted effects of its own rules and orders so much for restrictive jurisdiction and equality under the law!

In like manner, those who believe that the rule of law necessarily arises out of, and is satisfied by, some presumed democratic form of governance fool only themselves. As Herbert Spencer (and others before him, such as Alexander Fraser Tytler, Lord Woodhouselee) pointed out so plainly in the late 19th century, in a democracy (without restrictive jurisdiction) when the tax-eaters outnumber and outvote the taxpayers, personal liberty is in great peril. Victims of state-sponsored oppression gain scant solace from democratic robbery or state-sanctioned murder legally authorized by rules of law, when 51 percent of the voters can enact rules that rape and pillage the 49 percent minority, particularly where those who enact such laws and those who interpret them suffer no constriction of their jurisdiction to do so.

Persons who define the rule of law by recourse to such ideas as justice, or equality, or fairness, or due process likewise misunderstand the effect of the absence of boundaries on jurisdiction. Justice and fairness represent subjective values; we might agree on general precepts under the rubric of justice or fairness but we would be likely to disagree about the individual application in specific circumstances. (In a slightly different context, that individual-case failing constitutes one rationale for an effective jury system.)

For example, in the prevailing Anglo-American system of jurisprudence, we usually concede that certain notions should generally apply in every (or most) instances: like cases should be resolved in the same manner (stare decisis); once a case has been resolved, that decision should be final and the matter not relitigated (res judicata and double jeopardy); governing legal rules should be plain, open, and able to be understood by all inhabitants (no ex post facto or unwritten laws); persons charged with a crime should be subject to fair, standard, and open procedures, and the state should bear a high burden of proof (beyond a reasonable doubt, to a moral certainty); and every inhabitant should be treated identically in similar situations (no artificial classification of individuals, no special privileges for the favored few). As Leonard Read would say, all most of us want is a fair field and no favor.

Absent restrictive jurisdiction, individuals and claques tend to pervert the law while retaining the handsome rubric the rule of law. Thus, an unlimited legal system could simply mete out equally bad but consistent procedural treatment; it could adopt onerous rules and make oppressive orders that are applied equally to all residents or to all members of a class; it could create stupid classifications and rule identically within the artificial class definition; it could decide similar cases in the same unrighteous manner, depriving the affected parties of the most fundamental of human rights; and it could determine what process is due under specific circumstances and adhere to that process without constraint. In sum, the absence of restrictive jurisdiction virtually guarantees unfair, demeaning, and subjugating treatment trampling individual human rights.

Properly conceived and understood, the concept of restrictive jurisdiction forms an essential element in the endless quest for human freedom. The founding of the United States of America rested on six related basic principles: individual liberty and personal responsibility, private property and a market economy, limited government and subsidiarity (the notion that in instances where public action is necessary, the best form of governance is that closest to the affected people).

A limited government, then, is just what it says and implies: a limited public coercive force. In the most simple terms, a limited government constitutes a state that may exercise its power to command only within a specifically limited sphere of activity, and that state truly lives under the rule of law.

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    Ridgway K. (Dick) Foley Jr., an appellate litigator, practices law in Oregon and resides in Southern Arizona.