A government of Laws and Not of Men: The Ubiquitous Nature and Ambiguous Position of Law in American Culture Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question



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Chapter 3

A Government of Laws and Not of Men:

The Ubiquitous Nature and Ambiguous Position of Law in American Culture
Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings.

-Alexis de Tocqueville, 18351

Law is as American as apple pie. From John Adams’ famous adage commending government grounded in the firmness of law rather than the volatility of the people, through Alexis de Tocqueville’s observation on our civilization’s propensity toward the legalistic, through such familiar idioms as “I’m gonna take this case all the way to the Supreme Court!” and “There oughta be a law!,” American culture is – and always has been – saturated with legal rhetoric, legal consideration, and legal action. Law in American culture is ubiquitous – it is everywhere and it is everywhere all of the time. And so is our use of it. Indeed, the resort to formal law – to the courtroom – has even touched such “other” cultural icons as motherhood,2 the flag,3 baseball,4 and, yes, even apple pie.5

At the same time, not every red-blooded American loves apple pie and not everyone loves the law. Indeed, while America is no doubt the most legalized culture in history, it is a culture which simultaneously despises the very laws and lawmakers to which it so frequently resorts. There exists within our cultural selves not only John Adams, but Henry David Thoreau. Thus, alongside the American psyche that reveres “[a] government of laws, and not of men,”6 there is the American self that shouts:

I heartily accept the motto, 'That government is best which governs least;' and I should like to see it acted up to more rapidly and systematically. Carried out, it finally amounts to this, which also I believe, 'That government is best which governs not at all;' and when men are prepared for it, that will be the kind of government which they will have. (Thoreau 1849/1975: 789)


The two sides of the American self are occasionally played out and most easily seen publicly in the extremes. On the one hand, our most legalistic selves are represented by the juristic saga of 11 year-old Katie Rose Sawyer. “Only in America,” after all, could a fifth grade “marriage” end in court and a judicial restraining order. But when young Ms. Sawyer “divorced” 10 year-old Cody Finch after just four months, the estranged Mr. Finch punched her on the playground, and Katie’s parents, rather than contacting Cody’s folks “took ‘em to court.”7 On the other hand, “only in the America” (or, as they would put it, “Amerika”) could we find a Posse Comitatus, a group so hostile to law that it rejects even the Constitution and “accept[s] no higher authority above the level of the Sheriff in the county in which [members] reside.”8

But those are surely the extremes. Most of us are not hyper-litigious -- mostly we are able to settle childish or simple disputes without resort to judicial intervention.9 Nor are most of us so antagonistic toward law that we reject the foundations of law itself. We are neither Sawyers nor Posse Comitatus.10 And yet within us, as a culture, both are engaged in a continual struggle. Indeed, American culture is at once, the most highly individualistic and, thus, the most hostile to formal structures (LAW) and the most prone to resolve problems by resorting to formal structures (LAW). The struggle between the two American selves is as old – in fact, older – than America itself. In the end, it is a cultural struggle between INDIVIDUAL LIBERTY, on the one hand and SOCIAL ORDER, on the other – a struggle that has defined and shaped the whole of our legal history and structure.

This chapter presents a framework for considering the role of law specifically in American culture. It begins with a brief discussion of the ideological foundation of American society, a foundation which inevitably set the stage for both the ubiquity of law in America and for our cultural equivocation on matters legal. We then consider how this ideological framework reproduced itself in the formal structures of American law and politics. Finally, as a prelude to subsequent chapters, we briefly address this cultural/philosophical replication in the practice of American law and society today.

INDIVIDUAL LIBERTY VERSUS SOCIAL ORDER:

FOUNDATIONS OF THE AMERICAN LEGAL PARADOX
Over the course of most of the twentieth century, from the Bolshevik Revolution in 1917 until the fall of the Berlin Wall in 1989, America fought a relentless battle against the evils of ideology. To many Americans, the very term “ideology” produces the twin specters of Hitler in Munich and Stalin in Red Square -- tyrants spewing forth rigid dogma to mindless, impoverished masses. Whether fomenting fascism or communism, America suffered the unremitting threat of these two ideologues, their predecessors and successors, for over seven decades. The association made “ideology” a dirty word, something to which no “pragmatic,” “free-thinking” American would ever subscribe.

Yet, in many respects, the United States is the most ideologically-bound nation on earth. For all our economic, ethnic, racial, and religious diversity, we do (at least loosely) subscribe to a common system of thought that has had an amazing persistence and influence over us -- and, more importantly, for our purposes, over our approach to law. This system of thought – the American ideology – began over 300 years ago, in the English liberal revolution of the seventeenth century, its view of human nature, of legal authority, and of the place of legal authority in both liberating the best aspects, and restraining the worst aspects, of that nature.



Law and the Classical View of Human Nature: Political Culture.

To point to some, one, foundation of an American system of thinking about law and nature is risky business. Certainly, this nation’s great intellects, including, and especially, the Founders were among the most eclectic of legal/political scholars. American thinking prior to 1776 was heavily influenced by the ancients and the moderns – by Aristotle and Voltaire, by Cicero and Rousseau, by Tacitus and Montesquieu (see e.g., Bailyn 1992: 26-29). Thus, short of performing a successful seance and, even then, getting such political disparities as Jefferson, Adams, Madison, and Hamilton to agree on one intellectual wellspring, we can probably only guess (in the rigorous language of the highly skilled social scientist, this is called “going out on a very brittle limb”) at relative levels of influence. A good guess, however, would give the English Classical Liberals, particularly the seventeenth century philosopher John Locke, pride of place.

According to Locke, the natural state of human beings is one of perfect freedom, equality, and independence (Locke 1960: 287).

Each of us, in the “State of Nature” is a free agent, free to “order [our] actions, and dispose of [our] possessions and persons as [we] think fit,” subject only to the “Law of Nature”(Locke 1960: 287). So far so good, but whatever the “Law of Nature” is,11 it is not a very good executor of its own rules – indeed, at least in an earthly sense, the “Law of Nature” has no enforcement capability. So each of us free, equal, and independent beings is at the mercy of all the other free, equal, and independent beings. And although, according to Locke, “the Law of Nature be plain and intelligible to all rational Creatures; yet Men being biased by their Interest, as well as ignorant for want of study of it, are not apt to allow of it as a Law binding to them in the application of it to their particular Cases” (Locke 1960: 369). In other words, we’re all free, equal, independent, and pretty darned selfish. The State of Nature, then, is no paradise, but rather a potentially hellish condition, “full of fears and continual dangers” (Locke 1960: 368). The problem: how do we keep all the others from killing us, hurting us, and taking our stuff?

The punch line – one that perhaps seems obvious – is that we agree to enter into a political society, regulated by common positive law, and enforced by civil government. The wild and wooly State of Nature, in which individuals, constrained only by the “thou shalt nots” of Natural Law preyed on others and their property, has been transformed into an orderly community, governed by specific, common legislative prohibitions and commands, implemented by a common executive, and adjudged by a common magistrate. We now have organized, common enforcement:

And thus the commonwealth comes by a power to set down what punishment shall belong to the several transgressions they think worthy of it, committed amongst the members of that society (which is the power of making laws), as well as it has the power to punish any injury done unto any of its members by any one that is not of it (which is the power of war and peace); and all this for the preservation of the property of all the members of that society, as far as is possible. But though every man entered into society has quitted his power to punish offences against the law of Nature in prosecution of his own private judgment, yet with the judgment of offences which he has given up to the legislative, in all cases where he can appeal to the magistrate, he has given up a right to the commonwealth to employ his force for the execution of the judgments of the commonwealth whenever he shall be called to it, which, indeed, are his own judgements, they being made by himself or his representative. And herein we have the original of the legislative and executive power of civil society, which is to judge by standing laws how far offences are to be punished when committed within the commonwealth; and also by occasional judgments founded on the present circumstances of the fact, how far injuries from without are to be vindicated, and in both these to employ all the force of all the members when there shall be need. (Locke 1960: 342-343)


The natural state of men without law is recast into “[a] government of laws, and not of men.”

Ok, this is an obvious and desirable solution. But it begins to set up one of the great and enduring dilemmas of classical liberalism, and thus, of American culture. For in instituting this new orderly community we individuals pay a price in liberty, equality, and independence. We agree to cede some of our natural liberty, equality, and independence to the commonwealth. We give up some of that which is intrinsic and essential to us as human beings -- a serious business, indeed.

And so the problem becomes how do we keep the forces of government – of LAW – from “extend[ing] farther than the common good” (Locke 1960: 371)? How do we keep the power that is now vested in the Law from overwhelming what is left of our natural liberty, equality, and independence? Clearly, Locke believed that “Wherever Law ends, Tyranny begins” (Locke 1960: 418). But, as history has amply shown, Law itself, and the makers of Law, have a propensity toward tyranny as well. This is an issue that very much concerned our original lawmakers – the Framers of the U.S. Constitution.12

Balancing Individual Liberty and Social Order: The Madisonian Solution.

The lineage from Locke to the Founders is at its clearest in the Declaration of Independence. Indeed, Jefferson borrowed quite liberally from The Second Treatise by Locke, not only in thought, but in actual word.13 Rhetorical flourishes aside, however, the liberal framework established by the likes of Mr. Locke -- including all its problems and paradoxes -- figured very prominently in the conceptual structure of the Constitution itself -- of, in other words, our basic Law.

In fact, the Framers could easily fit their own experiences into the extreme possibilities. Whether one accepts a “civics course” view of the Founders as selfless political saints, concerned only for the welfare of future everymen and -women, or the far more cynical image of them as rapacious, self-serving landholders and wealthy merchants concerned only with locking into permanent place their own material advantages, or, more likely, as something in-between, to their minds, they had seen just about the worst both of worlds – both the tyranny of law and the tyranny of lawlessness. After all, from their point of view, they had long suffered under the “absolute Tyranny” (Declaration of Independence) of a system of British law, so onerous and unfair that it threatened to destroy their “unalienable Rights”(Ibid.). On the other hand, their initial attempt at self-government under the Articles of Confederation posed the opposite problems – problems posed by the lack or impotency of law. Likening the Confederation to the ancient Grecian republics, the Federalist Papers characterized the situation under the Articles as one of “weakness,” “disorder,” and, potentially, “destruction.” Under such circumstances, a kind of real “State of Nature” plays itself out with “[t]he more powerful members, instead of being kept in awe and subordination, tyranniz[ing] successively over all the rest” (Federalist #18, paragraph 4 (Madison, )). Thus, these men, empiricists in the Age of Empiricism,14 could point to real experience – their own and historical others – as proof of the liberal thesis -- as proof that somewhere between complete liberty and complete order there lay a balance and the key to that balance was law.

And, so we come to our own preeminent liberal philosopher, empirical thinker, and legal artisan, James Madison. In many ways, it is Madison’s particular spin on human nature, and Madison’s particular legal approach to alleviating the problems and enhancing the possibilities of that nature that forms the basis of American legal culture – at least that side of the legal cultural American self that sees Law as the great counterbalance to the excesses of liberty and order.

Like Locke, Madison was convinced that man was naturally free and independent. At the same time, like Locke, he was convinced of man’s natural propensity to savage other “men.” “If men were angels,” Madison asserted, “no government would be necessary” (Federalist #51, paragraph 4). Obviously, we very unangelic mortals need laws to control us — to impose order on our non-beatific selves. Having made that observation, however, Madison had to confront the flip-side of the problem, for if men are not angels, neither do angels govern men.15 Clearly, history had (and has since) shown that those who make and enforce laws are fully as fallible and corruptible as the rest of us. Sounds a lot like John Locke, right? The big difference is that unlike John Locke who spent his life largely as a theoretician,16 Madison had the rare and exhilarating opportunity to take his insights on human nature and his opinions on how to exploit and control human nature and fashion out of those views the fundamental law of a nation -- a law which revolves around the Madisonian theory of factions.

That we, as individuals, are fallible – that we are likely to act in the most unangelic of ways if left completely to our own devices – is bad enough. But we human beings are terribly complex animals, for though born independent, we are also social creatures which means that we inevitably are led to band together. Were we naturally to affiliate as various components of the heavenly choir, the world would be paradise with or without the maze of rules and regulations that permeate our existence. However, given the very imperfect nature of individual humans, it is highly likely that our tendency toward socialization will also be imperfect. So, harken back to that State of Nature with all us avaricious individuals preying on each other’s ideas, properties, and beings, only this time, imagine whole groups of individuals victimizing weaker groups and individuals. A pretty scary picture, wouldn’t you say? This is the State of Nature as Madison sees it!

According to Madison, humans are, by nature, “factious” creatures. “The latent causes of faction,” he tells us, “are . . . sown in the nature of man. . . .” (Federalist #10, paragraph 6). Consequently, humans will always seek out those who share their interests. This is fine in the context of an angelic chorus, but, of course, Madison doesn’t see the situation in such celestial terms. Rather, he defines a faction as “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community” (Federalist #10, paragraph 2; emphasis added). Thus, factions, while inevitable, can be – indeed, unchecked, will be – pretty dangerous entities:

A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for preeminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to cooperate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts (Federalist #10, paragraph 6).


Factions, according to Madison, have thus been the downfall of humankind from the beginning of time. The question is, “What do you do about them?”

For Madison, the answer to that question starts in the very structure of law. If factions are so destructive, clearly one solution to their catastrophic impacts would be cutting them off at the knees, so to speak, or, as Madison put it, “removing the causes of faction.” This would seem to be the most direct resolution and could be accomplished simply “by destroying the liberty which is essential to [the] existence [of factions, or] . . . by giving to every citizen the same opinions, the same passions, and the same interests” (Federalist #10, paragraph 3). Except (and we’re sure, you’re way ahead of us here), this resolution is neither simple nor very desirable, is it? For in effect, Madison is saying that to eliminate the causes of faction, liberty itself would have to be extinguished and the entire human race turned into a bunch of unfeeling, unthinking robotrons. Thus, of “removing the causes of faction,” Madison himself says:

It could never be more truly said than of the first remedy [destroying liberty], that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.

The second expedient [giving everybody the same opinions] is as impracticable as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his selflove, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. (Federalist #10, paragraphs 4, 5, 6).


So, under the classical understanding of human nature, the causes of faction cannot be removed. Now what?

Well, “now what,” according to Mr. Madison, means taking a very different path. Rather than creating regulations that would seek to eliminate the causes of faction, the law itself, he says, should be organized in such a way that it controls the deleterious effects of factions (Federalist #10, paragraph 8). Enter the constitutional framework.

Madison reasoned that the best way to control the effects of factions within the basic legal structure was to work with human nature rather than against it, for “what is government itself,” he asks, “but the greatest of all reflections on human nature”(Federalist #51, paragraph 4)? Thus, if human nature is inevitably free, if it is inevitably competitive, and if it inevitably is prone to sectarianism, the law should be structured in such a way that those inevitable forces are marshaled or controlled to the greater good. In essence, you want to use the ability -- the natural tendency -- of human beings to freely and competitively associate toward the goal of self-interest as the very means by which that ability – that tendency – is kept in check so that it neither destroys individual liberty nor tears the fabric of a well-ordered social system. In a nutshell, “Ambition must be made to counteract ambition” (Federalist #51, paragraph 4) and all this must be accomplished within the framework of law. Thus, Madison says, “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions”(Federalist #51, paragraph 4).

What all this means is spelled out for us constitutionally in a system designed to control the effects of faction both within the population at large and within government itself. Let us begin, then, where Madison begins, with the people themselves. Note above that he says that the government must be both dependent on the people and able to control the people. In effect, he is saying that the law used to police the citizenry should ultimately come from the citizenry itself. And this, as we all learn in first grade, is called democracy, a form of citizen-based lawmaking for which we have the ancient Greeks to thank. But, Madison, a student of those same democracy-loving ancient Greeks, believed strongly that their undoing was none other than faction: “[S]uch democracies,” he warned, “have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths” (Federalist #10, at paragraph 11). Under a pure democracy, a permanent majority faction might form, dictating thought, religion, property distribution for all – in other words, undermining liberty. Or, under a pure democracy, multiple, uncontrolled factions might arise, each seeking to establish political and economic dominance as we humans traditionally have, through war – in other words, undermining order. Pure democracy, then, cannot control the effects of faction.

Rather, our basic law is structured in the form of a republic, “a government in which the scheme of representation takes place”(Federalist #10, at paragraph 12)17 We govern ourselves, but only indirectly through the selection of specified lawmakers: our members of Congress, our President, and, even more indirectly, our federal judges. This indirect form of lawmaking – this republic – works to control the ruinous effects of factions in two ways. In the first place, by dividing us up into electoral districts -- by actually fostering more competition -- the plan supposedly ensures that no single, permanent crushing majority can ever snuff out a single, permanent weakened minority. Thus, the 3rd congressional district of Maryland has interests different from those of the 2d congressional district in Georgia, which differ from those of 5th district in Massachusetts, which deviate from those of New York’s 8th, and so on. Factional ambition within the electorate – the people – itself is theoretically countered by hundreds (today, 435) of other geographically-defined factions, making it “less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other”(Federalist #10, paragraph 18). A republic, then, preserves liberty by making it hard for enduring majorities to take root.

A republic, in addition, is ostensibly less likely to devolve into the sort of factional warfare that can plunge a society into chaos. Madison thus imagines a representative lawmaking establishment capable of “refin[ing] and enlarg[ing] the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations”(Federalist #10, paragraph 14). Presumably, we citizens, armed with the ability to choose our leaders, will select from among us the “best and brightest.” They, in turn, will perfect and temper our legal demands through the art of debate and compromise.

If all this sounds oddly idealistic – if the notion that we will choose from among us the few who are better than the whole rings somewhat naive – Madison, student of human nature, is ahead of us, for he admits that “the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people”(Federalist #10, paragraph 14). In other words, human nature being what it is (fallible, avaricious, and all that other not-so-good stuff), the best and the brightest may turn out to be a bunch of charlatans! The possibility calls for “auxiliary precautions.”

Thus, under the complete Madisonian legal design, the republican strategy of dispersing and dividing power among the electorate is applied as well to the governing framework itself, through such familiar devices as separation of powers, checks and balances, and federalism.



Ambition is made to counteract ambition not only among the electorate, but among their elected officials, so that government is obliged “to control itself”(Federalist #51, paragraph 4). Madison explains:

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. . . . It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. [The best] . . . method . . . of providing against this evil . . . [is] by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. . . . [This] method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. . . . Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. . . . In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of selfgovernment. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE.(Federalist #51, paragraphs 9, 10).
Viewed in this way – through the eyes of the Father of the Constitution – America’s legal foundation – its basic constitutional framework – is nothing less than an holistic attempt to manipulate human nature itself as a means of balancing the two conflicting human needs for individual liberty, on the one hand, and social control, on the other. The stage was thus set long ago (indeed, at the beginning) for the American self that celebrates and indulges in a “government of laws . . . .”
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