Tennessee Law Review
University of Tennessee
Ask the American Civil Liberties Union for information about itself and you will receive several briefing papers. (1) Briefing Paper Number 10 contains a drawing on the front page depicting the 1735 seditious libel trial of John Peter Zenger, publisher of the New York Weekly Journal. (1) Zenger had printed a series of articles alleging that New York's Royal Governor William Cosby was corrupt-which was the truth. (2)
Even so, English law did not recognize truth as a defense against libel and slander prosecution until 1843. (3) In the 1700s, English law defined "seditious libel" as false, scandalous and malicious writing with the intent to defame or to bring into disrepute either private individuals or the government. (4) Complete liability was the rule for any affront taken, or alleged damage done, to reputation. Statutorily speaking, Zenger's conviction should have been routine. He had clearly broken the law, and as Inspector Javert famously told Jean Valjean , "the law is the law. Good, bad or indifferent, the law is the law." It's a common standard around the world. (5)
But that standard does not necessarily apply to English law, as eighteenth century jurist Sir William Blackstone pointed out in his Commentaries on the Laws of England. British jurisprudence requires that "All presumptive evidence of a felony should be admitted cautiously; for the law holds, that it is better ten guilty, persons escape, than that one innocent suffer."(6) While other legal systems are essentially designed to protect the state by protecting it from the individual and his community, such as in France where an accused is considered guilty until proven innocent, (7) the English system vicariously protects the state by protecting the individual from the state through his community. (8) This difference is based upon each system's view of state longevity. The authoritarianism of the French system carries with it the potential of repressing social pressures until they explode. The English system normally relieves social pressures along the way and stands a better chance of enduring.
Those opposing concepts of state, community, and the individual are all the more perplexing considering the observation of Harvard law professor Harold J. Berman: "All Western legal systems-the English, the French, the German, the Italian, the Polish, the Hungarian, and others (including, since the nineteenth century, the Russian)-have common historical roots, from which they derive not only a common terminology and common techniques but also common concepts, common principles, and common values." (9)
The reason for the differences will become evident. For now, assume that the English system's apparently contradictory task of shielding the individual from rogue state actions through his community is accomplished via a panoply of traditions and due process protections," (10) 'in which the individual's community plays a pivotal role against the timeless axiom Sir John Emerich Edward Dalberg-Acton (Lord Acton) familiarized in phrase: "Power tends to corrupt and absolute power corrupts absolutely." (11)
Because English law assumed that power corrupts, the Crown was not vested with the legal authority to indict Zenger and put him on trial by itself. It had to convince the community, represented by the grand jury, that prosecution was justified. But after three grand juries disproved common wisdom's "ham sandwich rule" and refused to return indictments, (12) Crown officials then gave credence to the fundamental presumption behind English due process. (13) They abused their authority by arresting Zenger and putting him on trial anyway.' (14)
However, even though Royalist political sympathies existed on the bench, the "illegal" trial was possible because the English judiciary was and is-subordinate to Parliament and had no authority to throw the Crown's charges out of court. (15) So jury nullification, the community's final due process protection against unjust law and overzealous prosecution, went into play. (16) And according to the ACLU Briefing Paper: "Although the law was against Zenger, a jury found him not guilty-in effect, nullifying the law and expressing both the jurors' contempt for British rule and their support for a free and unfettered press." (17)
Zenger's story is an illustration of English law's core principle opposing abusive power. The law is not the law regardless if it be good, bad, or indifferent. There is a higher moral law, originating within ancient Jewish law, which requires individual responsibility for opposing evil and promoting goodness. (18) It is from this basic tenant that English law and Anglo-American law embody the following principle: The individual has rights against the state. (19)
What is a right against the state? It is a natural right as "Professor" Ice-T explained to Stanford Law School students about speech: "I have the right under God to say anything I want to say. I do not need a law to tell me what I can and cannot say." (20) This concept was further refined into the principle that actually saved Zenger, the sublime contradiction of English law's intrinsic tyrannicide. (21)'
Similar to subjects of a repressive king, bound to obey unpopular laws, Zenger's jury members had a moral duty to obey a law they may not have liked. They may have even liked the law and voted to convict Zenger if he had been printing epistles favoring satanism or any of the collectivist theories (22) being espoused then, such as socialism. But just as subject obedience becomes the right and duty to kill the king when his laws transgress those of God or conscience, members of Zenger's jury had the right, the power, and the obligation to kill the judicial tyranny of an illegal and unjust prosecution with a "not guilty" verdict. (23)
I have always considered Zenger's story to be a prime example of the reason that the English system is endangered and may not survive. (24) The danger posed by the usual suspects in government for the sake of power is obvious. However, not as obvious is the more insidious danger posed by a list of unusual suspects claiming to be its defenders awaiting introduction.
Their attacks on God, (25) traditional Judeo/Christian morals, (26) the Calvinist concept of conscience, (27) republican virtu, (28)" and Aristotelian reason or logos (29) --- the five essential elements that make our system work --- as obstructions to social progress have been devastating. Considering their alternatives, Zenger's story exemplifies to me that our Anglo-American system is superior to all others and is worth fighting to preserve as a constitutional reason of state.
Raison d'Etat is most familiar in the context of the sort of tyrannical absolutism which Anglo-American law thwarts and which empowers the oppressed to overthrow. (30) Yet, within that tradition, the term basically means being "in bondage to the law so that we may be free". (31) This apparent contradiction means having the freedom and protection found within time-tested principles and moral boundaries guaranteed in a constitution. It also means that those protected by the constitution have the willingness and ability to participate and protect it from foreign and domestic enemies. (32) That is the republican form of government that America's Founding Fathers thought they guaranteed. (33)
However, we continue to ignore the Founding Father's wisdom in pursuit of collectivist theories of "equality". (34) "Once loosed, the idea of Equality is not easily cabined. (35) The equality before the law-as in "a government of laws, and not of men" (36) -- has been convoluted by collectivist ideology to mean equality of money, possessions and preferential justice. The danger is that the quest for equality exploits and exacerbates a major factor that has killed prior civilizations. As Arnold J. Toynbee succinctly theorized:
Of the twenty or so civilizations known to modem Western historians, all
except our own appear to be dead or moribund, and when we diagnose
each case, in extremis or post mortem, we invariably find that the cause of
death has been either War or Class [warfare] or some combination of the
Idealists pleading to "Bring in the Army to End the Fear" (38) of crime, or calling for legislative and judicial fiats that skirt the Constitution's amendment process in order to achieve "social equality, ' (39) should listen carefully to the "hot rivet syndrome" revelations of apostate radical Sixties reformers like Peter Collier and David Horowitz. (40) Collier and Horowitz didn't really understand their collectivist ideology until learning how the South Vietnamese and others got burned by communism:
There was no "new morning" as radicals had predicted, no peasant utopia.
Instead, there was a bloodbath greater than the one we set out to oppose
and a government worse than the one we had wanted to replace.
Coming out of Southeast Asia in bits and pieces (the flow of
information impeded by the Left itself), these facts slowed our forward
political motion rather than throwing it immediately into reverse. That was
accomplished a few years later when the Soviet Union invaded Afghanistan
and the reformed Left reacted not by denouncing the genocide but by
denouncing tenuous U.S. efforts to impose sanctions on the U.S.S.R. and
help the mujahideen as the beginning of a "new cold war".
By the early Eighties, we felt it was time to try for an honest
inventory of our generation's impact. Some of the accomplishments were
undeniably positive. There was an expansion of consciousness, of social
space, of tolerance, of prospects for individual fulfillment. But there was
a dark side too. In the inchoate attack against authority, we had weakened
our culture's immune system, making it vulnerable to opportunistic
diseases. The origins of metaphorical epidemics of crime and drugs could
be traced to the Sixties, as could literal ones such as AIDS. (41) .... The
surprising thing for us was to discover the paradox Irving Kristol
described, that in contemporary America, political labels are out of joint the
liberals have more or less assimilated the ideas of the socialist Left,
while the conservatives are really yesterday's liberals: ... the
institutions which conservatives wish to preserve are, and for two centuries
were called, liberal institutions, i.e., institutions which maximize personal
liberty vis-A-vis a state, a church, or an official ideology. On the other
hand, the severest critics of these institutions-those who wish to enlarge the
scope of governmental authority indefinitely, so as to achieve even greater
equality at the expense of liberty-are today commonly called "liberals.' (42)
Collier and Horowitz had learned that "the socialist states are closed societies and military despotisms precisely because they are unable to fulfill their promises even at the admittedly nonutopian levels of the despised capitalist nations."(43) It is the lethal collectivist equation Fyodor Dostoyevsky's Grand Inquisitor told us about long before:
Dost Thou know that the ages will pass, and humanity will proclaim by the
lips of their sages that there is no crime, and therefore no sin; there is only
hunger? ... In the end they will lay their freedom [socialist equality] at
our feet, and say to us, "Make us your slaves, but feed us." They will
understand themselves at last, that freedom [socialist equality] and bread
enough for all are inconceivable together." (44)
The symbolism of Christ kissing the Inquisitor after that statement always unsettled me. Totalitarian schemes either combine church and state or become a secular state religion by being the arbiter of moral authority. Collectivist states have to eliminate religion's separate moral opposition for their own survival. Once secular humanism (45) and other temporal ideologies burrow further into America's corpus juris, illogical dead-end thinking (46) will result and that will, and is, beginning to produce increasing numbers of dead bodies in places like Waco, Texas, (47) Ventura County, California (48) and Ruby Ridge, Idaho. (49)
At each of those locations, government agents murdered the very sorts of individuals that most threaten collectivist ideology - those who insist they be left alone to live, worship, and raise families according to their own principles. Randy Weaver's son and wife were government victims at Ruby Ridge. (50) But as an alleged survivalist and racist, Weaver gets no empathy from those whose pursuit of "equality" created the alternate moral environment in which his wife and son's deaths are a sanctioned secondary concern. As Phillip Weiss observed:
What liberals there are in Idaho also talk about the Weaver children.
That was the real abuse in the case, they say: the Weavers oppressed their
kids, made them hostage to a feverish and paranoid ideology. Took them
to an isolated mountain, made them walk around a cold knob holstered and
belted with ammo. The liberals are wary of the powers of the family. To
them, home schooling instills sexism-girls do traditional homemaking
activities, baking bread, making dolls from corn husks, taking care of the
children. Failure to regulate home schooling has made Idaho a haven for
kooks and bigots says one big panhandle paper, The Lewiston Tribune.
The Government must step in; the Government can protect children from
But what happens when the terrors of a paranoid, racist, anti-Semitic father
are outdone by the violent abuses of a Government? What happens when the
state shoots and kills a mother before her children? The liberal imagination
fails, the liberal simply cannot conceive it. (51)
Even if Randy Weaver is a racist, does he not have the right to be one? Do others not have an equal right to not associate with him? Does he not have a right to live in isolation and not have the Bureau of Alcohol, Tobacco, and Firearms seek him out and devote years to setting him up on a bogus criminal charge? (52) Weaver's jurors thought so and acquitted him of all charges except that of failure to appear in court on a previous weapons charge. (53) Jurors indicated that he would have been acquitted of those charges as well, had they known that Weaver was given an incorrect trial date and that the U.S. Attorney knew of this fact. (54)
Zenger parallels? Plenty. A moral verdict? Not according to collectivist mores. And because those have gained pressure point currency within government, headlines such as FBI Admits Photos of Idaho Shootout Scene Were Staged (55) and Officials Decline to Charge FBI Sharpshooter (56) qualify as Vicki Weaver epitaphs that could equally apply to many others-even for their speech.
Doubters need only read University of Michigan law professor Catherine McKinnon's Words: "Equality is a 'compelling state interest' that can already outweigh First Amendment rights in certain settings. In other words, expressive means of practicing inequality can be prohibited." (57) Then listen to Roberta Achtenberg, former Undersecretary for Fair Housing and Equal Opportunity at HUD: "The First Amendment is not absolute. The Federal Fair Housing Act constrains, to some extent, your First Amendment rights, if your speech and or conduct has the effect of harassment, intimidation, coercion or interference with the exercise of Fair Housing rights. (58)
Collectivism's historical record portends more of the same. As Richard Goldstein noted:
The new sobriety is more than a trend. It is a political program that
expands the limits of law enforcement, the authority of employers, and
ultimately its own parameters. Yes, smoking does cause lung cancer,
drinking causes death on the highway, cocaine kills. Promiscuity does
promote the spread of disease, and children have been abused in day-care
centers. But when government deals with drunk driving by banning happy
hours, and with lung disease by forbidding public servants to smoke
cigarettes, or with child abuse by fingerprinting all day-care workers (as
well as all members of their families over the age of 16), something "else"
is going on. In each of these situations, a problem provides the pretext to
regulate "undesirable behavior." (59)
It is a tyranny sold by highly educated, articulate, organized, zealous minorities, (60) as has happened in other collectivist societies, in which legal objectivity is replaced by political subjectivity. Murder aside, (61) this gives collective state power what I consider its most chilling aspect. Human interactions become a minefield as legal boundaries shift according to political whim-something completely at odds with the Anglo-American reason of state. This does not mean that religious zealots have not taken a damaging hold. Carrie Nation's Women's Christian Temperance Union set the moral tone, prompting a report by the National Commission on Law Observance and Enforcement. (62) But there was a major difference. The Volstead Act did not regulate property or contracts, expand business liabilities, hold society responsible for criminal behavior, or make theorized social interests jailable offenses.
But securing Anglo-American law's time-proven safeties from erosion and outright destruction by those state horrors requires far more than vigilance, as Yale history professor Donald Kagan observed: "The institutions and ideas that provide for freedom and improvement in material conditions cannot flourish without an understanding of how they came about." (63) Their survival also requires a widespread, informed conviction that they are worthy of protection because the premises forming their foundations are true and timeless.
Against a tide of collective legal and social theory which claim that the Constitution and the presumptions on which it is built are obsolete, (64) racist, (65) or deficient, (66) and deserving of being trashed, I offer a brief remedial review of the individual, his rights, and the voracity of the suppositions protecting both as embodied in Anglo-American law, culture, and especially religion-the forgotten critical element.
David Fischer, in his book Albion's Seed, stated that "Of all the determinants which shaped the cultural character of British America, the most powerful was religion. (67) Furthermore, German scholar Leopold von Ranke wrote that of all the religious theologians, "John Calvin was the virtual founder of America. (68) Calvin's five points (69) were not only the source of the social control that we lack today but they also provided common ground among the many different denominations which formed the American community that collectivist theory has been so effective in destroying during this century. (70)
I write this review not as an eminent law professor, attorney, or even as someone with legal training, but rather as a country boy with some smarts from "t'other side of the Smokies." As a child in North Carolina, I not only saw Ku Klux Klan intimidations and corruptions of official power, (71) but I also saw the attendant waste of resources needed to suppress a portion of the population, and the stupidity of making so many enemies eager for retaliation. After moving to Baltimore, I found myself on the defensive against the proponents of ideas that have gutted education and culture: Facts aren't worth knowing, academic diplomas should be a right, academic standards are racist, and Western culture is trash. (72)
As a reporter, I have observed the judicial system "progress" from the 1960s where judges told jurors of their authority "to bring in a verdict in the teeth of both law and facts" (73) to the present situation where the mention of jury nullification will likely gain a contempt of court citation. (74) Later, I witnessed the Nixon administration use the Secret Service to intimidate its critics and investigators, (75) while many in the military began to choose sides in case their Commander-in-Chief decided to quash impeachment proceedings. (76) As a network reporter for ABC News, MacNeil/Lehrer, and CNN, I witnessed the corruption media researchers have confirmed with statements such as: "[T]he facts don't matter. Once the elite press has decided their agenda, they ignore everything contrary"; (77) "Symbolism becomes the substance"; (78) "It's a construction of reality based on ideology." (79) Such intentional distortions of fact have robbed the public of the accurate information it needs to make informed decisions." (80)
Comprehensive as that perspective is to the origins of problems we now face, the fortune of heredity is equally important to understanding the system we are losing. As a descendant of the original English" (81) who brought their traditions and systems of law and government to North America, I have an intimate cultural and familial knowledge and feel for their purpose, reasoning and validity. George Orwell said: "To write or even speak English is not a science but an art." (82) It is an art because, "[v]iew[e]d freely, the English language "is the accretion and growth of every dialect, race and range of time, and is both the free and compacted composition of all." (83) The same may be said of English-based law, culture, and government since all are inextricably intertwined.
Being an American is not about common race or ethnicity but is about common subscription "to a faith in the common man, in the capacity of human beings to work together effectively by granting to each member of the community a substantial amount of freedom, freedom to search out the truth for himself, to argue, and to be wrong." (84) Fascinations with truths like collectivism, multiculturalism, and secular humanism are muting the common denominators in faith that the system requires to work." (85) For "we are a religious people whose institutions presuppose a Supreme Being. (86) "Among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others." (87) In other words, our system cannot work if based on an ideology like "God is dead!" (88)
All belief systems and morality codes are not considered equal in any sense of the word. It should be equally obvious that the specific English based belief system required to make Anglo-American law and government work is the one we are losing. How else can the English have and maintain the logical absurdity of a constitutional monarchy without a written, or even logical, constitution? "We shall never make the constitution of England a strictly logical one, and I do not think it is desirable that we should try. " (89) Illogical or not, other cultures have found a constitutional system almost impossible to maintain, even when written. But, "England is the country in which social discipline has most succeeded, not so much in conquering, as in suppressing whatever is most liable to conflict with it." (90) The English, more than any other people, not only act but also feel according to this rule. This maligned, religion-induced guilt, shame, and WASP reserve, which the enlightened of the Sixties said needed a Nietzscheian angst-purging to reveal one's irrational self, does have a purpose: It controls destructive behavior. Not all of it, but enough to allow a free society to function. (91) Freedom is messy, but if people want freedom, and not a police state, they must police themselves. They have to know the difference between laissez-faire and license, when to loosen the reigns on each other, and when to hold tight to every letter and punctuation of a rule. That is the art of making the illogical system that we inherited from England work.
Legal boundaries are often fuzzy, and Parliament, as sovereign, is always a potential tyrant. Churchill stated: "Indeed, it has been said that democracy is the worst form of Government except all those other forms that have been tried from time to time. " (92) The key to Anglo American law and Republican government is the sense of limits which live within the culture of the English speaking peoples. As Emerson eloquently stated: "The American is only the continuation of the English genius into new conditions (93) .... Oliver Wendell Holmes believed that understanding cultural heredity is vital to comprehending the common law on which our legal system is built:
The life of the law has not been logic: it has been experience. The felt
necessities of the time, the prevalent moral and political theories, intuitions
of public policy, avowed or unconscious, even the prejudices which judges
share with their fellow men, have had a good deal more to do than the
syllogism in determining the rules by which men should be governed. The
law embodies the story of a nation's development through many centuries,
and cannot be dealt with as if it contained only the axioms and corollaries
of a book of mathematics. In order to know what it is, we must know
what it has been, and what it tends to become. (94)
The same principle applies to any culture's legal or governing system to varying degrees, but our Anglo-American system stands apart from its Western cousins. Instead of France's Academe deigning cultural purity, there is an inherent system of social Darwinism: English language, law and system of government "assimilate other races to themselves, and are not
The trait of adapting through adoption is a cultural testing laboratory which rejects what does not work and incorporates strengthening change. The results to date are that freedom, limits on authority, and protection of the individual work in the long run, while collectivism and authoritarianism do not. This gives the Anglo-American system an illogical and threatening spin to a world largely accustomed to tight authority. It is a small wonder that this system is so roundly misunderstood and derided as nothing more than an enabler of criminal disorder. German political journalist Franz Loerher, who typifies those with a solution rooted in the logic of his own culture, stated: "The Germans [in America] could create a civil order which would liberate America from the chains and confusion of the near-dying English law which is a mockery of the young Republic, and striking testimony to American inefficiency. (96) Newton N. Minow, former Federal Communications Commission Chairman, addressed the order craved by Loerher's German genes with slight tongue-in-cheek:
In Germany, under the law everything is prohibited except that which is
permitted. In France, tinder the law everything is permitted except that
which is prohibited. In the Soviet Union, everything is prohibited includin that which is permitted. And in Italy, under the law everything is permitted, especially that which is prohibited. (97)
This may be a flip remark, but Minow's stereotypes contain a great deal of truth. A society's laws reflect its underlying belief systems and characteristics. German law reflects a strong authoritarian tone in terms of being positive, literal, and logical. Soviet law was a feared political trap which the more equal animals could use to ensnare lesser animals for anything. (98) Italian society is noted for its hypocrisy concerning vices frowned upon by the Catholic church. In the same way, French law exhibits a characteristic flavor: It is rooted in the ancient regime of monarchial repression. The Code Napoleon continues the French procedural tradition of being highly written, systematic, sweeping, learned, Roman and codified. (99) It relies on professional judges and harsh judicial inquisition.' (100) In contrast, England's system relies heavily on oral procedure, a mix of professional and lay justices, accusation and denial by opposing parties resolved by lay jurors, and a tradition of legal precedence and prerogative. (101)
Just as Herr Loeher rolled his eyes at the English system's disorder," (102) the English were aghast at Julius Reuter's accounts of the French system that he began supplying to London's Morning Advertiser in 1858. (103) Professor F.C. Green eloquently stated that the reasons that the mid- Victorians were so aghast included:
Violability of domicile; restriction of the right of assembly and association;
curtailed freedom of movement; intervention of the central authority in
purely local or private matters; lack of a free press and-worst of all in the
eyes of true-born Britons-an iniquitous legal procedure. It shocked them
to learn that a Frenchman accused of a crime was subjected, in secret and
without a counsel, to an indefinitely prolonged interrogation by an
examining magistrate and that, in open court, he had to endure a repetition
of this ordeal. To quote Pr~vost-Paradol: You would be surprised to see the President of a French Assizes Court fencing with the prisoner, trying to wrench a confession of guilt by every means or to entangle him in self-contradictions.... (104)
This had also offended Frenchmen like Voltaire and Rousseau. But the fact that some of their liberal ideas took root among English speakers, instead of their own countrymen, indicates that English law, like many finer wines, doesn't travel or transplant well. Ghandi disbanded the jury system shortly after the British left India. Singapore also did away with juries and became more authoritarian after British rule ended. India, Singapore, and other former British Colonies have altered their legal systems to comport with the more authoritarian concepts of government and law which dominate most of the world which the English left behind.
The English who populated North America brought with them a fundamental belief in God, the common man, and rulers and laws which must have limits to enjoy legitimacy. This seemingly contradictory logic of English law is inextricable to the English concept of government's very reason of state. The resulting ideology is one of practical survival.
From the shores of Massachusetts, through the Carolinas, Georgia, Tennessee, and onto the Western frontier of what would become the Republic of Texas, the credos of persistence, providence, adaptation, thrift, self-reliance, and covenant served the English well. After the Civil War, these principles moved into the New Mexico and Arizona Territories.
The reason these principles worked is that their fundamental protections are the recognition, adaption, and accommodation of essential truths trumping man's temporal fictions about himself and the nature of power.
Classically speaking, these principles continue the advice written at Delphi to "know thyself' and "nothing in excess." (105) But no central committee planned it that way. It was a unique evolutionary path of providence other societies have not duplicated. True to that wisdom, the principles of English law embodied within America's judicial and governmental systems recognize and reconcile the most elemental' of societal axioms understood before Rousseau's Du Contrat Social.
Humans stand the best chance of survival by joining and working together. But while an individual's survival against outside forces may depend upon the integrity afforded the group, through his contributions and adherence to its rules of conduct, the group's survival ultimately depends upon the integrity it affords the individuals comprising it. Corruptions of power and tyrannies of majority and minority are all natural human proclivities that corrode an individual's commitment to the group and eventually kill it. Remedy and reconciliation for that condition is found within the heart of Anglo-American law and tradition: the sovereignty of the individual and his conscience.
For that reason, English-based law, if it is to be understood and if it is to work, cannot be separated from the particular cultural and religious underpinnings from which it grew. This is particularly true of the perfected "Glorious Revolution" ideals that have become the American system. That fact runs afoul of two of the most damaging notions to have gained notoriety: That all belief and morality systems are equal and must be given equal consideration and respect0 (106) and the Marxist doctrine that all political cultures evolve through the same stages to achieve perfection in socialism. (107)
Perhaps it is a small detail, but history does not verify either idea. However, history does verify the collectivist cultural consistency Collier and Horowitz were amazed to find: "The 'syndrome,' or pattern of interrelated traits, of the totalitarian dictatorship consists of an ideology, a single party typically led by one man, a terroristic police, a communications monopoly, a weapons monopoly, and a centrally directed economy." (108)
While one might say with some accuracy that most major religious and philosophical beliefs share some common concepts, they are certainly not fungible. Neither are they the same, nor equal, in their concept of morality, any more than all cultures evolve through the same stages. Even among Jews, or followers of Islam or Karl Marx, not all subscribe to the same beliefs. Neither do all Christians. One avenue is secular obedience, passivity, and martyrdom. Examples abound in the Bible and the works of theologian's about enduring hardship and "rendering unto Caesar without a fight."' (109) Discretion may be valor when outnumbered, but I am referring to the other theological trail articulated by St. Augustine, St. Thomas Aquinas, and John Calvin. This is essentially the doctrine of survival." (110)
I comment not out of political ideology, religious conviction or a belief in freedom for freedom's sake, but because I believe that the fundamental Judeo/Christian principles on which the Anglo-American system is built have stood the test of time and shown that they work. The same cannot be said of collectivist social theories. Regardless of whether the Ten Commandments were written by Moses on Mount Sinai or written by the literal hand of Yahweh does not matter. (111) What does matter is that they are timeless, realistic, workable principles which, if followed, allow humans to live in safety, harmony, and freedom. In that same way, English-based law weakened or destroyed.
To some degree, "equality" promoting collectivists are fostering these same principles, but by removing accountability to a supreme being, the state has been substituted as the punisher of trespasses which used to be considered bad manners or boorish behavior. Such behavior was controlled by peer pressure, shame, and social ostracism. Secular humanists and others are undoing 900 years of social development begun by St. Augustine. Recognizing the state as the societal "robber baron," St. Augustine's ideas relegated the state to its proper role of punishing crimes against public order. Religious principles such as those of the Catholic Church became the higher eternal law against which lex temporalis was measured for legitimacy.
Collectivist concepts like those being advanced today were very familiar to the Founding Fathers. For instance, Levelers wanted to "level" society into classless equality by creating a "community of goods," among other things.' (112) On examination, these types of ideas had the same problems. Samuel Adams noted that "[t]he utopian schemes of levelling, and a community of goods, are as visionary and impracticable as those which vest all the property in the Crown are arbitrary, despotic, and, in our government, unconstitutional." (113) Furthermore, John Adams stated that "our constitution was made only for a moral and religious people. It is wholly inadequate for the government of any other. (114) What Adams and the Founders knew, and we are discovering, is that as religious-based moral conscience and shame wear away and people become less able or willing to control their own behavior, more police control is needed to fill the vacuum. Those beliefs have been corroded and challenged for more than 100 years by followers of Friedrich Wilhelm Nietzsche," (115) Horace Mann, (116) John John Dewey, (117) John Paul Sartre," (118) and Karl Marx. The progression of change due to their influence is illustrated by the following three quotations.
Sam Ervin, the late United States Senator from North Carolina and my boyhood mentor in things constitutional, believed "the most precious value of civilization is the freedom of the individual." (119) Senator Ervin expressed the traditional Ulster Scot, Presbyterian American view about the belief in the common man. (120) Contrast Senator Ervin's thoughts with the message President Bill Clinton has been spreading to young people. In his April, 1994 MTV appearance he said: "When we got organized as a country and we wrote a fairly radical Constitution with a radical Bill of Rights, giving a radical amount of individual freedom to Americans ... And so a lot of people say there's too much personal freedom. When personal freedom's being abused, you have to move to limit it." That same year, the Fabian Society etched Clinton when it wrote the following letter, which appeared in the November 29, 1994 San Francisco Chronicle:
"[M]ythological revisionism aside, the so-called colonists of the 17th and
18th centuries were largely European outcasts including criminals,
indentured servants, radical religious cults and other misfits. It is strongly
arguable that the first ten amendments reflect, in significant part, their antisocial
values and not philosophical enlightenment. The fruits of that
colonial criminal constituency must be eradicated from the Constitution.
Those who continue to support those values, particularly the NRA and the
ACLU, are only the successors of that constituency and must be dealt with
as such." (122)
Dealt with how? Secret police? Gulags? Summary killings? This is the brutal reality behind the "higher self' phrase collectivists use to beguile the public and deceive naive idealists into becoming accomplices-a role creative people are particularly susceptible to playing unwittingly.' (123) That tactic presents a major constitutional problem for a system like ours, which guarantees individual rights. While the total power Frank Fabian and his friends want is the very power our system denies, the system is virtually defenseless against the tactic of using the very rights Fabians would destroy to protect their pollution of popular and political culture. Once poisoned, what is the next defense in a system designed for the free advocacy of ideas? Enforcing constitutional principles might be a partial answer, but thanks in large part to the ACLU, the protection of these principles have been sacrificed for equality.' (124)
The ACLU should not use Zenger's story to posture a claimed defense of the Bill of Rights against what they correctly say is "the tendency of government to perpetuate itself by enacting repressive measures to silence those opposed to its conduct."' (125) Does the ACLU defend jury nullification? Except for Indiana and Maryland, whose state constitutions require it, does the ACLU care that judges no longer allow jurors to be told that they may vote their conscience despite the law or the facts? (126)
Lauding the Zenger jury's common law authority to nullify unjust law and prosecution 260 years ago differs from backing that principle or the right of jurors to be told about it in contemporary society. "The ACLU is caught in a tug-of-war between civil liberties and the politics of the left [socialist equality], and the politics of the left is winning" (127) noted Alan Dershowitz. Jury nullification puts collectivist "social progress" laws at risk, and neither our Constitution, the rules of due process, or the sound principles on which both are based will be allowed to endanger them. (128)
Originating among academic and activist elites, collectivist legal and political theories have been forced on the public via judicial activism as these concepts become more totalitarian and their legislative populism withers. Adding to the damage of these ideas, these laws are based on a reasoning process which is completely incompatible with Western law and the Anglo-American system. However, that raises a rather basic question the ACLU has not been willing to touch. If a jury does not know about its nullification authority, has the defendant really received the jury trial guaranteed by the Constitution and the Sixth.and Seventh Amendments of the Bill of Rights?" (129) Rulings such as United States v. Dougherty so far indicate that he has. (130)
The court in Dougherty reasoned that jurors already know about their nullification authority from "the informal communication from the total culture" (131) even if judges tell jurors that "you must follow the law whether you agree with it or not". (132) This may be true if a strong cultural awareness of the concepts of Anglo-American law and government has been maintained. But such awareness has not been maintained. Additionally, several generations have been indoctrinated to believe that many essential principles supporting our system such as jury nullification do not exist and that others like jury trials are wrong. Even among highly educated people, few have heard of jury nullification, believe it exists when told, or believe it is a right jurors should have. In addition, there is a growing opinion that commoners aren't competent for the role of a juror." (133)
This directly results from the cultural poisoning previously mentioned.' (134) But aside from culture, this situation presents some legal logic problems. If jurors are supposed to know about nullification by cultural osmosis, does that not contradict the reasoning behind the famous Miranda decision-essentially that the failure of officials to inform an accused of his rights is a denial of his rights? (135) It seems that the release of a convicted kidnapper and rapist like Ernesto Miranda endangers public safety every bit as much as a jury that might acquit because it conscientiously feels the law or the prosecution is out of line.
However, apparently the ACLU does not share this viewpoint. It has not advocated nullification as an essential element of trial by jury anymore than it has advocated an individual's right to keep and bear arms-a right the National ACLU and its giant Southern California Foundation chapter actually attack. (136) Phone calls and letters to ACLU Media Relations Director Phil Gutis in New York have yet to elicit a response to this challenge. Given the number of times I interviewed him while a reporter in New York on matters of privacy and speech, his unavailability is curious. However, Phil Gutis would have to defend ACLU reasoning which fails the straight face test. This does not happen in the dominant media because it is dominated by individuals who either agree with the collectivist political ends or simply do not know the time-wom logic of dictatorship and murder when they see it.' (137) Harvard Law Professor Alan Dershowitz has stated:
"Foolish liberals who are trying to read the Second Amendment out of the
Constitution by claiming it's not an individual right or that it's too much
of a public safety hazard don't see the danger in the big picture. They're
courting disaster by encouraging others to use the same means to eliminate
portions of the Constitution they don't like." (138)
It is significant that the liberal Dershowitz would take fellow liberals to task on this point, but it is even more significant that he would do so on this issue. Since Alan Dershowitz hates guns and would like to see the Second Amendment repealed, (139) he could easily follow the unprincipled hypothesis others have adopt He could be calling for the Second Amendment's nullification through the judicial activism that has altered other parts of the Constitution beyond anything the Founding Fathers would recognize. He could be a shill for the Handgun Control, Inc. (HCI) and falsely claim the Second Amendment is not an individual right. (140) Dershowitz could even join the prudentialism argument that the right to keep and bear arms is a public safety hazard. He has not, because that position is dangerous beyond belief.
"If the Second Amendment is not worth the paper it is written on, what price the First?" (141) The Supreme Court stated: "[a]s no constitutional guarantee enjoys preference, so none should suffer subordination or deletion." (142) "Laws, like houses, lean on one another."' (143) When one falls, they all weaken. Fabians are aware of this fact, which is why the attacks on jury nullification and the First, Second, and Fourth Amendments are almost entirely from the left side of the political spectrum. Collectivist theories, in whatever form, cannot brook meaningful dissent in either speech or action. Juries, speech, guns, and arbitrary police search barriers empower both. Destroying those rights not only rids real opposition to state power, but it also creates a legal and social precedent for legitimizing state authority over other rights.
Since an actual war is being waged, the objectives, strategies, and tactics used to accomplish that are worthy of examination in military terms. The objective is to establish a collectivist state backed by positive law. The strategy: Gradual de facto alteration of the Constitution to reflect collectivist values by using its protections to steadily undermine and change the belief systems supporting it. The tactic: A three-prong cultural, political, and judicial attack. The first prong is to dominate the media and education systems to inculcate collectivist doctrine about the evils of capitalism, religion, and Western culture in present and successive generations. The second prong is the attempt to gain political dominance by exploiting class envy and government dependence. (144) Finally, the third prong of attack is to judicially support collectivist legislation and inject collectivist interpretations into existing laws. (145)
With the exception of leftist-armed revolutionary talk during the 1930s and again during 1969, the Fabian plan has been working for more than 100 years. (146) President Theodore Roosevelt bought into collectivist thought regarding property as have most of his White House successors to some degree. (147) Horace Mann, unwittingly, and John Dewey, intentionally, steered modem education away from republican ideals and toward collectivist thought. (148) Mountains of articles have been written about the damage done by the dominant media and judicial rulings. (149) Although none of that is new, observing highlights of the three-pronged attack in action reveals their workings and collateral damage.
In order to kill an individual right such as the right to vote one's conscience on a jury (150) or the right to keep and bear arms without going through the inconvenience of the Constitutional amendment process, a rationalization must be made against all fact, logic, and history that it is not a right and that it should not be a right based on public safety considerations or collectivist morality. For firearms, an argument must be made that it is morally wrong for a civilian to kill another human being whether to defend the community from dangerous individuals (151) or to defend one's own life. But, "What if a bad guy gets into your house? Comes after your son? Comes after you?" Hollywood writer Robert Dillon asked a friend. The friend responded: "If I had a gun, I wouldn't use it. I guess I'd just have to die."' (152) High-minded as that reasoning may sound to some, it has perverted the most fundamental of individual rights in a very dangerous way.
Man Kills Robber; Murder Is Charged was The New York Times headline of a story I investigated. (153) Behind the headline is this opening paragraph: "A Bronx man who told police he wrested a gun away from an armed robber and then fatally shot his assailant was arrested yesterday on murder charges, although a police spokesman said investigators thought the man had acted in self defense." (154) I spoke with the assistant district attorney who decided to arrest the man and was told that self-defense is immoral and only the state has the right of force. (155) This very message was subtly sold via propaganda of omission last year in Schindler's List.
The film version predictably omitted the following passage from the book: "During the winter, Oskar [Schindler] built up an independent arsenal .... The small cache included carbines and automatic weapons, some pistols, some hand grenades .... Three commando squads of five men each had been formed" (156) That scene was not filmed because it contradicts the collectivist politics that control Hollywood. It serves as yet another example of how effectively the Fabian three-pronged attack has gigged the Second Amendment.
Educationally, the Prussian public school system, which Horace Mann sold educators here on adopting, was designed to produce commoners who obeyed state authority. (157) To that inherent quality of obedience, John Dewey added his vision of indoctrinating children with socialist values geared toward "social control." (158) Yale literature professor Harold Bloom and Harvard government professor Harvey Mansfield recently recounted how collectivism put a stranglehold on academia. (159) Eventually, collectivist sentiments took over the mainstream newsrooms.
Los Angeles Times contributing editor, Robert Sheer stated that fellow editors at his paper "know what they're printing about guns causing violence and gun ownership not being an individual right isn't true. They do it to push leftist political ideology and to sell papers." (160) Furthermore, USA Today reporter Dennis Cauchon has commented: "[r]eporters are very sympathetic to gun control and skew facts. (161) Washington Post reporter Henry Allen added that reporters are "far removed from rural and frontier values and are alarmed and contemptuous of gun owners as dangerous lower classes."' (162) The result: Media manufactured gun panics (163) created opportunities for political demagoguery,"(164) scaring voters into supporting restrictive legislation and lending popular support for judicial decisions defying all constitutional and historical fact. It's a classic Fabian strategy.
However, it is the legal sequence of the wording in the Second Amendment that concerns Professor Dershowitz.(165) Historical evidence and judicial rulings aside, stating that the Second Amendment does not necessarily guarantee an individual right requires some illogical reasoning.
Grammatically speaking, the first portion of the Second Amendment is a preamble statement while the second is a corollary, not a condition for the second part. (166) A clearer writing would be: "Because a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." The words "militia," "free state," and "the right of the people" are pivotal. "Militia" in this context cannot mean a government monopoly on armed force via a formal military organization like the National Guard or even a State Defense Force since the "militia" is necessary to the security of a FREE state, not THE state. (167) Finally "the right of the people" does not just mean an individual right in every other part of the Bill of Rights in which it appears, it means a fundamental right. Any other meaning is nonsensical and would undermine every other "right of the people.' ' (168)
Furthermore, "the right of the people" means individuals every other place it is used in a list of individual rights meant to check abusive state power. How then can the object of the restraint have the authority to limit a right intended to check its own abuses? Many see that connection with, say, free speech. But guns? Theodore Schroeder, "one of the most important developers of the theory of freedom of speech early in this century" understood "the obvious import [of the constitutional guarantee to carry arms] ... is to promote a state of preparedness for self-defense even against the invasions of government, because only governments have ever disarmed any considerable class of people as a means toward their enslavement." (169)
Harvard Law Professor Duncan Kennedy believes that speech itself may be part of the difficulty in seeing such connections. (170) The more collective liberal political theory has become the more its proponents have manipulated language to facilitate a reasoning process operating from the opposite side of the universe from Western law (171) That is something I had always noticed, but it was not until coming across Professor Kennedy's work that I saw an articulation of the problem. He refers to a postulate of Western law that the way a law's form serves a law's purpose cannot be answered in the abstract, but only in the context of objective rules and historical purpose and precedent. (172) However, collectivist theory views rules as being isolated from the larger system of law of which they are a part. So, values are not seen as being related to the rules that are supposed to be followed to achieve them. The result is destructive "free positive legal radicals" attacking the corpus juris. (173)
This strikes me as a corruption of the old Charles Evans Hughes logic that "the Constitution is what the judges say it is". (174) If that comment were pulled loose from the limits of Judeo/Christian mores (which is what collectivist thought does in its advocacy of judicial activism), does that mean that any ruling can claim legitimacy simply because a judge rules it? If the Supreme Court were to uphold a law making it illegal to be Jewish, does that have legitimacy? This bit of hyperbole does not diminish the serious implications of the principle if extended whenever logic strays from grounded rules and principles into the "it oughta be" concepts of John Rawls' fairness for all. (175)
Some have described this problem as being nothing more than a collision between the traditional "male" legal thought processes and the new "female" logic on which collectivism is based. An example of the problem can be seen in the abortion controversy. To kill a human embryo (176) without a state having the right to prosecute for murder or citizens having legal justification to kill abortion workers in order to save a helpless human life, (177) an objective, scientific standard must be established defining when the embryo becomes a human life. That has led to this logical beauty: If an embryo is not a human life, how can a criminal who incidentally kills the embryo while attacking the mother during a robbery be charged with the murder of a human being? (178) Back on a more logical track, if an embryo is not a human being, what is wrong with intentional conception and abortion for profit to medical researchers who will kill the embryo? (179) Human Embryo Research Poses Ethics Dilemma (180) is another of those headline warning signs asking how we keep from drifting into rationalizing experiments during the fetal stage. If it cannot survive outside the womb, is that enough to lose its human status?
Do not be sidetracked by the political passions on this issue. It is that "[t]he preservation unimpaired of our basic rules of procedure is an end far more desirable than that of hurrying a single sinner [or law] to what may be his merited doom." (181) Corrupt logic and reasoning can and have lead to corrupt ends. The logical disconnection between an unborn's death by abortion not being murder, while its death by attack on the mother is a murder, needs reconciling. Either both are murder or neither is murder. It is this very disconnected reasoning process that has side-stepped constitutional protections before and justified some of the most repugnant events in history. For instance, in order to enslave an African-American or murder six million Jews and an assortment of several million additional Gypsies, Catholics, and others, a rationalization had to be made that the victims weren't human. Likewise, in order for the murder of men, women and children by the FBI and the ATF in Waco, Texas not to outrage the America conscience, those victims had to be dehumanized as armed criminal religious radicals and child molesters.
The ACLU is not the only hypocrite among those paying "lip service" to the individual while paving the way for his subordination to government by fiat. But as the self-proclaimed premier defender of individual rights thwarting tyranny, the ACLU must accept more responsibility than most for the cumulative damage and danger that its selective advocacy has created by the forces it set in motion. By favoring selected rights, it has subordinated the inviolable status and protections of other rights-the First Amendment included-to its tactics of disinformation and political pressure which amend the Constitution without using the amendment process. By promoting the exercise of politically-favored rights, the ACLU has provoked an easily exploited "public safety" backlash to legislatively limit or abolish key rights and due processes which guard our free society by protecting the individuals who compose it. This must stop if we are to avoid legitimizing the view that the law can enjoy legitimacy without sound traditional moral underpinnings.
Of course, exactly whose code of moral underpinnings we are talking about is one key problem. Under the various collectivist doctrines of moral relevancy, anything can be ethical. Socrates said that "[a] system of morality which is based on relative emotional values is a mere illusion, a thoroughly vulgar conception which has nothing sound in it and nothing true."' (182) Considering historical experience, Socrates was definitely onto something. In the words of a young lawyer I know at a major national firm in New York who has aspirations of eventually being a federal judge, "I'm an amoral person but I consider myself to be a very ethical person." This is enough to cause even Gomer Pyle to go, Huh?
My attorney friend is ethical. But ethics depend on having a moral code. This poorguy has a Judeo/Christian moral code governing his behavior whether he likes it or not. So even though he did not go to Temple and did not want a bar mitzvah because he "didn't want to sign onto anything I didn't agree with," he has got 'em anyway, absorbed by societal osmosis. He is far from being alone as most can probably attest. But as traditional values and knowledge of their origins dim, more will likely have the reverse situation. They will truly be amoral and their ethics will reflect that fact.
Given the advances in electronic monitoring, data compilation, cross referencing, and instant retrieval at the disposal of those in power, we are now at a resolution point we have not been before as a people. The individual and his relationship to the state as reflected in the founding American tradition of constitutionally guaranteed inherent rights, popular sovereignty, self determination, and the right to resist unjust authority may be terminal. This condition is all the more dire considering our system's innate potential for suicide by Constitution. As we've seen, rights can be lethal to the system that guards them by protecting those wanting to destroy it. It's the ultimate rock and hard place of constitutional government.
How does the system which protects guaranteed, fundamental individual rights against abused official power, protect itself from individuals who use the very rights the system protects to destroy it? An article entitled Civil Liberties of Civil Security asks how the system protects itself from the irresponsible exercise of rights.(183) Furthermore, a more recent critique Death Emerges as a Civil Liberty inquires what corrosive effect new rights contrary to the moral suppositions on which the system is based will have. (184) How does the system protect itself from a constitutionally protected news and entertainment media which is subverting the system's basic values and assumptions through misinformation and license?(185) How does the system stop such subversion and still claim legitimacy as a free society? How does it protect the right of armed resistance to tyranny without sanctioning armed violence to resist just law?
This is a plate full. But the second helping is no less laden. If there is a right of revolution, how does that reconcile with the constitution's definition of treason as "levying war against [the United States]?' (186) And how could members of the Fries rebellion, for instance, be legitimately convicted of treason and sentenced to hang? If there is no such right, what moral legitimacy does the United States government itself claim as one established by the armed force of revolution? Was Arthur Schlesinger correct when he wrote: "The military struggle may frankly be regarded for what it actually was, namely a war for independence, an armed attempt to impose the views of the revolutionists upon the British government and a large section of the colonial population at whatever cost to freedom of opinion or the sanctity of life and property." (187) Does that mean might makes right?
These are all questions to ponder for some time. Brighter, more learned minds than mine have certainly contemplated these issues without satisfactory resolution. Each solution leads back to the most disturbing question demanding an answer: How can our system survive once its basic founding assumptions have been subverted to the point they're no longer widely known or believed? At that point "we can endure neither our evils nor their cures."' (188) Do we opt for the Praetorian, Teutonic, or Presidential Directive "extra legal justice" (189) to get matters back on track before the body politic's immune system is triggered? (190) The indigestion of all that draws its strength from reality.
As Collier and Horowitz warned, proponents of collectivist political theories claiming to be a panacea for poverty, crime, and injustice have used America's freedoms as weapons to destroy, replace, or gain control of the private and public institutions which manipulate public opinion and law. (191) Nowhere is that more evident than in Hollywood. This most influential of limousine liberal communities overwhelming endorsement of collectivist causes is legendary. So is its hypocrisy.
Hollywood luminaries routinely denigrate the Second Amendment and stump for strict gun control laws. (192) Meanwhile, the New York Times noticed gun ownership to be the "dirty little secret in Hollywood's liberal closet." (193) All the while, Hollywood's claimed First Amendment right of free speech to deluge the public with profanity and violence knows no bounds' (194) - at least until a more strident Senator Paul Simon or Attorney General Janet Reno dusts off their Aristotle:
[T]he legislator ought to banish from the state, as he would any other evil, all unseemly talk; the indecent remarks lightly dropped results in conduct of a like kind. Especially therefore, it must be kept away from youth; let them not hear or see anything of that kind .... And since we exclude all unseemly talk, we must also forbid looking at pictures or literature of the same kind. (195)
Laws lean on one another. And the consequences of tearing laws down in hopes of getting at society's bedeviling afflictions is a boomerang Hollywood has thrown a number of times. Unfortunately, when the boomerang inevitably returned, Hollywood failed to learn anything from it. Perhaps the most powerful and certainly the most literate example of this affliction is seen in the character of Sir Thomas More in A Man for All Seasons. (196)
During Henry VIII's time, the bedeviling problems of society were thought to be caused by the devil wreaking havoc in human disguise. (197) But discovering which human was actually the devil was impossible since the efficiency of the inquisitors and their torture devices were thwarted by English laws requiring due process. (198) Will Roper, a young lawyer wanting to marry More's daughter, tells him he would cut down every law in England to get after the devil. (199) More's response is telling for our season:
"And when the last law was down and the Devil turned round on you,
where would you hide, Roper, the laws all being flat?-This country's
planted thick with laws from coast to coast-Man's laws, not God's, and
if you cut them down-and you're just the man to do it-Do you really
think you could stand upright in the winds that would blow then?" (200)
This More-as opposed to the real Utopia More- is not talking about the literal devil, but he is saying that without limitations and the restraint of law, the world's real evil is done through the corruptive influence power has on humans-a corruption exponentially increased through government in the absence of restraints. By corrupting the system which protects us all, we are all at risk of becoming its slaves. George Washington, the man who would not be king and thereby set the tone for presidents to follow, understood that principle: "Government is not reason, it is not eloquence, it is force; like fire, a troublesome servant and a fearful master. Never for a moment should it be left to irresponsible action." (201)
Yet, it has been and, we met the devil and found that he was us. But what recourse is there if the fire of government begins to consume the Constitution? It is a nasty subject, but armed tyrannicide is implicit within English law and stated outright as a fundamental tenet of its American progeny.
For instance, the Declaration of Independence states that "Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new government .... (202)
Abraham Lincoln stated that "[a]ny people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government, and form a new one that suits them better. (203) Lincoln made that statement before Congress in 1848, and he said it again 13 years later during his March 4, 1861 inaugural address: "This country with its institutions belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it, or their revolutionary right to dismember or overthrow it. (204) The ensuing Civil War certainly gave President Lincoln more than he, or anybody else, bargained for. There were 623,500 dead Americans; 1.6% of the population is stunning carnage by any measure."(205) Even so, that tragic episode provides ample anecdotal evidence of the victors recognizing the right to arms to resolve political differences even when the right of revolution isn't invoked. The South, perhaps fearing the justification of slave revolts, claimed a constitutional right to secede from the Union. Even so, the treatment of Confederate General Robert E. Lee and his men during Lee's surrender to Union General Ulysses S. Grant was of the highest respect. (206)
Grant thought accepting Lee's sword or the sidearms of Confederate officers was an unnecessary humiliation. Grant exempted Confederate men from surrender. (207) Artists depictions of Lee during the surrender and after are equally telling. Lee is always shown as a dignified equal of Grant. He has never been depicted as a subordinate or villain. (208)
Was that because Robert E. Lee commanded a formal army? Would not the same principle apply to mob violence designed to redress a wrong? No. "Mobs, a sort of them at least, are constitutional," wrote Lieutenant Governor Hutchinson of Massachusetts." (209) The "sort" of them he meant was "public mobs" of justly outraged good citizens as opposed to "private
mobs" of opportunists or trouble makers. "Seldom, if ever, have [people of his province] assembled in a tumultuous manner unless they have been oppress" (210)
An isolated opinion? No, it was typical Whig philosophy. First, average people of that time just weren't as frightened of violence as seems to be the case now. Second, law-abiding citizens didn't take mob action without a legitimate complaint that those in government felt should be addressed immediately.
Alexander Hamilton's report to President George Washington concerning the Western Pennsylvania "Whiskey Insurrection" of 1794 illustrates this fact further. In his report, largely overlooked by historians until recently, Hamilton first looked to see what "sort" of rebellion was going on. (211) Was it public outrage at an onerous tax, or was a tax revolt being used as a smokescreen for opportunists who saw a chance to defy government authority for their own ambitions? Even after determining it was the latter, Hamilton stressed to President Washington the need for measured government response, rather than using massive force to suppress the insurrectionists. (212)
History books, like Hollywood's Schindler, have leaned toward propaganda by omission on this incident, making it sound as if Washington's first reflex was to call out the militia and crush rebels. He only called out the militia as a last resort, and then only as a show of force. Whether endorsed by the Declaration of Independence, Abraham Lincoln, or anyone else, Judge Learned Hand was probably right about how far the right of revolution would get in court:
"The advocacy of violence may, or may not, fail; but in neither case can there be any "right" to use it. Revolutions are often "right," but a "right of revolution" is a contradiction in terms, for a society which acknowledged it, could not stop at tolerating conspiracies to overthrow it, but must include their execution." (213)
I won't explore the revolution any further, since Colonel Charles Dunlap, Jr. will be doing that in an accompanying piece. Instead, I'll turn now for a look at the individual the right of revolution empowers.
Who is this individual, what rights does he have, and why is he so important in Anglo-American scheme of things? (214) As seen earlier, the basis of this scheme is the Calvinist concept of personality and the importance of each individual's soul to God as the ultimate purpose of human existence. (215) This scheme is also the source our society's quarrel with absolutism. These questioning, principled underpinnings had their origins in Judeo-Christian monotheism and Greek reason. The resulting credo of freedom, economic opportunity, and opposition to tyranny, are abnormal in the human historical experience. Repression, vulnerability, and social stagnation have been the historical norms for the majority of humans, usually under absolute monarchs.
This historical pattern was disrupted by the ancient Greek city state of Athens. (216) Instead of an absolute monarch and royal hierarchy protected by a professional army, citizen-soldiers protected their city and shared in the decision making process." (217) This was the first time power was shared significantly by the common man. Dodging the schoinion became a national pastime. (218) But Greek logos, the method of rationally examining everything around them, was even more significant. Faith, intuition, poetry and music (relied upon by earlier societies for wisdom) were part of Greek culture too. So was myth. But it was reason that provided the Greeks with insights into the best and worst of human nature, teaching the importance that the former be accentuated and the latter be controlled by instilling virtue. (219)
Socrates wrote of virtue:
"As man is the best of all animals when he has reached his full development,
so he is worst of all when divorced from law and morals. Wickedness
armed is hardest to deal with; and though man while keeping his
weapons can remain disposed to understanding and virtue, it is all too easy
for him to use them for the opposite purposes." (220)
Virtue is the quality which made the early republican Romans so formidable, and which formed the basis for the qualities of knighthood and those of the classical gentleman. It is also the core characteristic of our fictional "good guys": Roy Rogers, Gene Autry, John Wayne, Mike Hammer, and Tom Clancy's Jack Ryan character are but a few examples. All are gentle, kind (Rogers and Autry even sang), and respectful of women, children, elders, just authority, and even dimwit sidekicks. But none of these good guys hesitated to use violence, when necessary and just, and to prevent evil from hurting the helpless or from polluting the body politic.
The Greeks weren't the only ones influencing our law to sanction just violence. Judaism is rife with it. Moses killed an Egyptian slavemaster whose beating of a Hebrew was sanctioned by the legal system. (221) Those same Hebrews later slaughtered many of the existing residents of Palestine. At Jerico, the Hebrews were ordered to commit genocide, and were punished by God for sparing a woman and her family. (222) The Macabees revolted against their Syrian-Greek rulers and later the Jews against the Romans, after which some Jews committed suicide at Masada. (223) All of this was done on orders from the higher law of Yawaweh, the Hebrews monotheistic deity. Like Greek democracy, reason and virtu, the idea of a single all powerful deity was new and dangerous to existing orders. And not just because of the obvious competition for loyalty.
Yahweh is the creator. His law is supreme and infallible. He is jealous, demanding, testing, even judging rulers. To disobey His will is not just to be punished in this life as the Greek gods did, (224) it was to risk losing one's eternal soul. (225) The existence of a chosen people posed a great threat to the Romans, and created societal friction and persecution. But Judaism did not spread through conversion. Christianity did. While Jews remained a separate and exclusive ethnic entity of God's chosen people, Christian converts siphoned converts from other established religions, including Jews, and became God's chosen people by accepting Jesus Christ as the Son of God. This subversive, insurgent quality, combined defiance and hostility to the state rooted in allegiance to God's higher authority, led to centuries of Roman persecution before Christianity became the Roman Empire's state religion.
Nonetheless Christianity's individual-oriented, questioning, challenging, evangelical character remained. That characteristic compelled Christians to question their own order, subverting official theological doctrine and principles. In the years of conflict after barbarians destroyed the Roman Christian order, towns played one side against the other, promising loyalty to monarchs. The goal was to decrease their battlefronts in exchange for charters guaranteeing self government.
Self-government meant freedom. Building on the premise that individuals are endowed by God with a free will, people began to see man as a free spirit which was capable of growth and greatness limited only by talent, effort, and opportunity. Machiavelli was probably the best known of this period's political thinkers. Revival or not, the Roman Catholic Church maintained its position as the true religion through which God's will was revealed by official church doctrine. The dogma maintained that salvation was only possible through the Roman Catholic Church and that the price for challenging the dogma was excommunication from the church. Martin Luther broke this stronghold with a reasoned theory of an individual who was able to effect his own salvation.
The impact of Martin Luther's concept of the individual and his power achieved by allowing God's grace to work through his own conscience, cannot be overemphasized. That concept denied the rationale of the Roman Catholic Church for monopolizing the legal power structure and tying secular law to theological doctrine. Think of this bit of Teutonic efficiency in contemporary terms: Why pay the Vatican cable company to view God's will when each individual can receive it direct from God Himself by tuning in his own conscience?
Religion aside, monarchs liked Luther's concept because it gave them a reason to dispute the power of the Church and freed them to create positivist laws. Common wisdom appears to be that rulers and their laws suddenly had no moral restraints; however, this is not the case. (226) Law did become secular and positive. However, the laws presupposed a respect for the individual conscience, contracts, and property rights. This presupposition incorporated four centuries of Roman Catholic teachings, which served as the moral compass guiding both individual and ruler as they sanctified and spiritualized agreements under amoral positive law. To break one's word wasn't just to break it with one's fellow human, it was to break it with God and risk eternal damnation.
The forces that Luther's reform set in motion continued under John Calvin and through groups like the English Puritans. These groups wanted to purify the Church of England from "popish" practices. They not only believed in Luther's sanctity of individual conscience and of contract and property rights, but they added their own doctrine. Puritans believed it was their Christian duty to reform the world and that the seat of truth was the congregation run by its elders and elected ministers. (226)
Those two facts alone put Calvinist groups at odds with Church and state establishments. But Puritans also believed it was their Christian duty, based on individual conscience, divine law, Old Testament Mosaic law, and natural law, to openly defy any established laws-with armed force to accomplish what they believed was right. (227)
With this Puritan heritage came legal acceptance of the concepts of the social contract, government by consent, individual rights against the government, all of which are reflected in the English Bill of Rights and America's Declaration of Independence, Constitution, and Bill of Rights. Ironically, belief in man's conscience as a conduit for God's will paved the way for secular religions that substituted individual hubris for God. "There is no salvation outside the party" was a common comment made by devout communists during Joseph Stalin's purges following WWII. (228) As Christianity had been defined by the Roman Catholic Church centuries before, so communism was defined by the Kremlin and had become the true Marxist-Leninist religion. Communist converts bore their own period of persecution, martyrs, and its own high Kremlin clergy. Religious parallels didn't stop there.
Just as Christianity had split into competing camps centered in Rome and Constantinople, a communist schism created competing power centers in Moscow and Peking. Much of the communist manifesto and language of the Soviet constitution is immediately recognizable to anyone who has read the Ten Commandments, The Puritan Compact, the Declaration of
Independence, or the Bill of Rights. (229)
Deism formed a philosophical bridge from the former to the latter. Deists believed in a supreme being that was the source of all reality. But unlike the Judeo-Christian God that took an interest in man, the Deists' did not. They believed God created an existence which ran on certain laws which were discoverable by reason and common sense. The individual was left to discover his own truth within the universe of truths, rather than being presented with one universal and eternal truth revealed through an ever present God. This relative truth was heavily tied to notions of nationalism. (230)
Individualism, rationalism, nationalism-the Triune Deity of Democracy- found legal expression in exaltation of the role of the legislature and consequent reduction (except in the United States) of the law-creating role of the judiciary; in the freeing of individual actions from public controls, especially in the economic sphere; in the demand for codification of criminal and civil law; in the effort to make predictable the legal consequences of individual actions, again especially in the economic sphere.
These "jural postulates" ... were considered to be not only useful but also just, and not only just but also part of the natural order of the universe. Life itself was thought to derive its meaning and purpose from these and related principles of legal rationality, whose historical sources in theological doctrines and law and of human reason are evident." (231)
Indeed they are. The Ten Commandments, The Last Judgment, (232) Purgatory, (233) Sacrament of Penance and Eucharist (234) and St. Anselm's - Doctrine of Atonement (235) are but several of the religious bases of Western legal principles. However, few secularists even recognize these foundations anymore, let alone know what they are and what concepts they embrace. In this vacuum, the politicalization and criminalization of areas that used to be matters of private morals is understandable. Professor Ronald M. Dworkin is an influential proponent of this theory.
Dworkin maintains that there are only two fundamental individual rights: the right of equality and the right of dignity. (236) These rights are moral rights that may not be abridged. No other rights are absolute. Other rights are simply grants by the state which can be altered or rescinded at any time. Liberty is no exception: "The idea of a right to liberty is a misconceived concept that does disservice to political thought." (237) So liberty is conditional in Dworkin's empire: "Individual rights to distinct liberties must be recognized only when the fundamental right to treatment as an equal can be shown to require these rights". (238) Dworkin continues: citizens "have distinct rights to certain liberties like the liberty of free expression and of free choice in personal and sexual relations" because those rights are required of equality and dignity. (239)
Under Dworkin's theory, one might argue that other rights exist in the Bill of Rights, but property isn't among them. What our Founders took as a given, Dworkin and his followers reject; there is no right of property. But for all his consideration of self and others, acquiescence to state or community being necessary, he holds individualism inviolable, almost to the point of harming the dignity and equality of those same principles.
Dworkin's logic on individualism and equality is flawed. H.L.A Hart makes the point that equality rights would protect minority views or practices from discrimination. (240) Query how equality rights could protect against laws proscribing all forms of sexual conduct or religious observance, or the public display of these activities. All would be treated equally, even those practiced by a minority population. Surely such a law could not trump free speech.
Laws against incitement to violence or general riot are immoral, Dworkin maintains. (241) Protection of public safety and property are not valid reasons to restrict the speakers or demonstrators since they are subordinate speculative rights to those of expression. (242) But if people are incited to harm others, aren't the rioters violating the right to dignity and
equality of those they're harming? Reconciliation may lie in whether those being attacked were denied their dignity equally. Dworkin's logic is equally flawed regarding affirmative action and legal discrimination.
Dworkin argues there is no reverse discrimination that might violate the fundamental right to equality of a Caucasian, when an African-American is hired or promoted simply because of his race. (243) Since the Caucasian isn't being treated equally, how can that be? As I read Dworkin, the answer is: because. There exists no argument that society's interest is served by favoring African-Americans over Caucasians to redress past discriminations, or to purge inherent racism. While I consider such arguments lethal tripe to constitutional government, at least they have been articulated points of view that can be examined and discussed.
I concede that my inability to understand rights theorists like Ronald Dworkin, Launie Guennier, Catherine McKinnon, and others having such a powerful impact on our system may be the result of my own personal lack of legal education. However, Professor Berman also sees the incongruities of their logic.
Professor Berman's vision is largely the result of the collectivist reasoning process professor Kennedy noted earlier. (244) Rule, precedent, policy, and equity are being weakened by a mindset which sees public policy as being nothing more than the brute force of those holding power often allied with government. (245) Berman lists the effect of those changes in a number of areas:
Traditional: Murder, Rape, Burglary, Robbery.
Collectivist: Political criminalization of formerly non-criminal acts. Elder abuse, Bias crime, Sexual harassment.
Traditional: Rules for effecting legal agreements voluntarily made between private parties.
Collectivist: Contract terms are required by law; boilerplate take or leave contracts.
Traditional: Owner has free use for legal activities.
Collectivist: Government enforced legal obligations placed on owner.
Traditional: Compensate losses from intentional or negligent misconduct.
Collectivist: Absolute liability-softened by insurance-for any injury, even those caused by intentional misconduct of injured party.
Traditional: Public-Civil, Criminal, Administrative; Private: Contract, Tort.
Collectivist: Public and Private overlap.
As I look at that list and see how an organized legal system is devolving into social swampwater, I am reminded of the reason the emperor Justinian spent so much time systemizing laws. He believed organization necessary for humanization. Prior Byzantine emperors had felt it their Christian duty to reform laws "in the direction of a new humanity." (246) Without logical systematization, the law remained a shell game, as in later communist societies. Only the parts that served the purpose of arbitrary power could be revealed; the rest were hidden. I cannot help but feel our humanization is backsliding.
The evidence is everywhere. Laws and regulations are becoming unenforceable as people refuse to obey them out of elitism, self- defense, or lack of moral motivation to obey. Contempt, protection, and passive-aggressive defiance like tax evasion, insurance fraud, drug use, and regulatory agency evasion, all represent the disintegration of the cultural and traditional moral assumptions that have allowed Anglo-American law to work without becoming a police state. As with many quandaries, this one has several facets.
In one sense, this predicament represents a systemic mutation caused by collectivist political theory. In another, it represents a revolt against the uniform application of rules known as formalism and a general rebellion against authority inculcated by popular culture during the past thirty years. And finally, continuing the mutation metaphor, what is happening is at least partly a rebellious Anglo reaction to an unjust state of affairs. If true, that may cause a retracement of some sort. How far, I'm pessimistic.
Despite the Anglo-American system's amazing adaptive qualities and tensile strength, I tend to agree with Yale professor Harold Bloom. Collectivism is too deeply rooted in academia to hope for a revival of classic Western cultural foundations soon. (247) The writings of Martin Heidegger, Jacques Derrida, and of course Herr Nietzsche will continue to fill many minds far beyond their capacity to see the value of the system being destroyed. The only consistency I have ever found between the real world and Nietzsche's theories was his eleven year insanity before dying. (248) If God is dead, and there's nothing to which we aspire beyond the temporal world, what's left?
On the premise that we better find something more to grasp onto than our id, I close with the words of Pastor Rosier Pile lecturing Alvin York: "[T]ake a look at that old Oak yonder.. . . 'Pears mighty strong .... Looks like hit could go on standin' all by hits-self, don't hit? .... Well, hit cain't, no siree. Hit cain't stand thar without thar's a lot o' deep roots a-holdin' hit up. Ye cain't see 'em but the roots air thar all the same. 'Pears to me hit's bin planned fer a feller ter
have his roots in somethin' outside his own self." (249)
NOTES ET CITATIONS
* Television and print reporter including reporting for CNN, MacNeil/Lehrer News
Hour, The Nightly Business Report, Good Morning America, ABC World News This
Morning, and print reporting for Village Voice, Cleveland Plain Dealer, Baltimore Sun,
Honolulu Star, Pittsburgh Post-Gazette, Jewish Journal. Licensed broker, New York Stock
Exchange, National Association of Securities Dealers, and member, Screen Actors Guild
1. ACLU Briefing Paper No. 10, Freedom of Expression (1991) (on file with the Tennessee Law Review). Virtually all accounts of the trial suggest Zenger owned the New York Weekly Journal and wrote the articles that he was charged with printing. See, e.g., FRANK THAYER, LEGAL CONTROL OF THE PRESS 19 (4th ed. 1962). However, he was simply the hired printer of the Journal. JAMES ALEXANDER, A BRIEF NARRATIVE OF THE CASE AND TRAIL OF JOHN PETER ZENGER 8 (Stanley N. Katz ed., 2d ed. 1972); see LEONARD W. LEVY, CONSTITUTIONAL OPINIONS (1986)[hereinafter LEVY, OPINIONS]; LIVINGSTON RUTHERFORD, PETER ZENGER, His PRESS, HIS TRIAL AND A BIBLIOGRAPHY OF ZENGER (1904). The articles were actually written by former Chief Justice Lewis Morris, Rip Van Dam, and Van Dam's two lawyers, James Alexander and William Smith, under pseudonyms. See ALEXANDER, supra, at 9. They started the paper to wage a political battle against Royal Governor William Cosby and his cronies who controlled the only other paper in New York, The New York Gazette. Id. at 7. Even so, the Journal printed many important articles that would lay the foundation for the 1776 revolution, including the political writings of Whig theorists, such as John Trenchard and Thomas Gordon. Id. at 9. Those and other writings, printed in what was undeniably America's first truly free press, served to protect the paper by educating public and Crown officials alike toward seeing the necessity of press freedom to thwart tyranny. Id. at 11-17.
2. See Alexander, supra note 1, at 9. Just after Royal Governor William Cosby arrived in New York during the summer of 1732, he demanded half the pay that senior New York Council member Rip Van Dam had received as acting governor before his arrival. Id. at 3. When Van Dam refused to pay, Cosby illegally authorized the provincial supreme court to sit as a court of equity where the governor's charges would be heard without a jury. Id. at 3-4. To say Cosby and his crowd were corrupt, arrogant and audacious would be an understatement.
3. LEONARD W. LEVY, ORIGINAL INTENT AND THE FRAMERS' CONSTITUTION 214 (1988)[hereinafter LEVY, ORIGINAL INTENT]. The idea that truth is not a defense against libel seems ridiculous beyond belief to most today. However, the common law concept has deep roots that predate its Anglo-Saxon and Germanic origins as the Roman Senator Marcus
Tillius Cicero explained:
"Our Twelve Tables of law only carried the death penalty for a few crimes. Among these crimes was singing or composing a song that was derogatory or insulting to someone. This was a good law. Our way of life should be open to judgment by the magistrates and law courts and not left to the commentary of clever playwrights. We should not be
subjected to public disgrace unless we can answer and defend ourselves in a court of law."
The early Romans did not want any living man to be the object of praise or blame on the stage. GREAT TREASURY OF WESTERN THOUGHT (Mortimer J. Adler & Charles Van Doren eds., 1977) (quoting Cicero).
Similar to the concept Cicero expressed, the idea behind the law is that even true statements can endanger public safety by causing people to lose confidence in their government--especially if made during a crisis such as a war.
4. See 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 149 (Legal Classics Libr. ed. 1983) [hereinafter BLACKSTONE, COMMENTARIES]; 3 BLACKSTONE, COMMENTARIES, supra, at 124-26; LEVY, OPINIONS, supra note 1, at 5; THEODORE F. T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 498-502 (5th ed. 1956). What made seditious libel so insidious was that it was not a clearly defined law. It "has always been an accordionlike concept" in the common law as Leonard W. Levy noted. LEVY, OPINIONS, supra, note 1, at 5. However, the charges against Zenger were completely consistent with definitions listed by Sir William Blackstone. These ranged from making false claims to anything which would tend to incite and disturb the peace. "Spreading false news, to make discord between the king and nobility, or concerning any great man of the realm, is punished by common law with fine and imprisonment; which is confirmed by statutes."
4 BLACKSTONE, COMMENTARIES, supra, at 149. Another way of affecting a man's reputation was "by printed or written libels, pictures, signs, and the like; which set him in an odious or ridiculous light, and thereby diminish his reputation. With regard to libels in general, there are, as in many other cases, two remedies; one by indictment and another by action. The former for the public offence; for every libel has a tendency to break the peace, or provoke others to break it: which offence is the same whether the matter contained be true or false; and therefore the defendant, on an indictment for publishing a libel, is not allowed to allege the truth of it by way of justification." 3 BLACKSTONE, COMMENTARIES, supra, at 125-26.
5. This was Inspector Javert's justification to Jean Valjean for hounding Valjean over the years. Javert put all of his faith in the letter of the law, without regard to its spirit. After an attack of conscience, he committed suicide, having realized the harm he had done over the years by being an unquestioning tool of authority. See VICTOR HUGO, LES MISERABLES (Signet Classics 1987).
6. 4 BLACKSTONE, COMMENTARIES, supra note 4, at 352. Though Blackstone's famous quote was first printed in 1680, others after him made the same point. The number of guilty people Voltaire thought it better to save rather than convict an innocent depends upon the translation. In Zadig, it's "that generous Maxim, that 'tis much more Prudence to acquit two Persons, tho' actually guilty, than to pass Sentence of Condemnation on one that is virtuous and innocent." RESPECTFULLY QUOTED 183 (Suzy Platt ed., 1992) (quotation from a 1974 translation of the 1749 version). Compare this with "it is better to try to save a guilty man than to condemn an innocent." Quotation from a 1931 translation of the 1749 version, in ZADIG AND OTHER ROMANCES BY VOLTAIRE 21 (H.I. Woolf& Wilfrid S. Jackson trans., 1931). Benjamin Franklin, however, raised the ante on both of them with a version that is normally attributed to Blackstone: "That it is better 100 guilty Persons should escape than that one innocent Person should suffer, is a Maxim that has been long and generally approved." Letter from Benjamin Franklin to Benjamin Vaughan (March 14, 1785) in 9 THE WRITINGS OF BENJAMIN FRANKLIN, 1783-1788, at 293 (Albert H. Smyth ed., 1906).
7. Most anyone reading this review knows the difference between the Roman-based inquisitorial procedure system and the Anglo-Saxon-based advirsarial system that descended from trial by battle. See RICHARD A. POSNER, LAW AND LITERATURE 78 n.17 (1983). What amazes me is the quantity of academic literature I've come across arguing that the
inquisitorial system is better and that the United States should change to it. See, e.g., GORDON TULLOCK, TRIALS ON TRIAL (1980). Arguments usually zero in on cost and efficiency of both trials and the numbers of layers and judges. See id. But what does that do to our basic protections against tyranny? So far as I can see, the two systems serve entirely different purposes.
The factors that make the adversarial system a superior brake on tyranny are the same factors that tend to defuse social unrest stemming from resentment of the law. Legal rationalization is often at odds with real life; laws can be immoral; there can be legitimate reasons for breaking a just law. These factors are the reason behind our long sequence of due process protections. The courtroom slugfest between opposing parties settled by jury decision is supposed to compensate where previous due process has failed. Interestingly, our adversarial system is very much like the one used by the Ancient Greeks. POSNER, supra, at 78 n. 17. Greek trials were more like private dramas than the official state inquiries preferred by Roman jurists. Id.
8. One of the hallmarks among those subscribing to liberal or collectivist political views is that they almost always think of the state and the community as the same thing; a reflection of the fact that collectivist theory sees government as being inherently good and benign. This view is not reflected in either the English system of grand juries and petit juries or the United States system of limiting jurisdictional boundaries.
9. HAROLD J. BERMAN, LAW AND REVOLUTION: THE FORMATION OF THE WESTERN LEGAL TRADITION 539 (1983).
10. See, e.g., Henry Weinstein, Prosecutor Won 't Budge, Judge Won 't Budge, L.A. TIMES, Jan. 15, 1994, at B 1. Weinstein details the story of a man on legitimate business in a federal court who forgot to take a revolver out of his briefcase before going through the metal detector. Id. He was arrested, and a federal judge demanded he be prosecuted even though the law requires the government to prove that the man knowingly entered the courthouse with the gun. Id. However, the U.S. Attorney refused. Id. This is important as an example of the system's due process brakes. Looking at the following list of hurdles intended to thwart arbitrary power, I am amazed that anyone gets convicted. State and local officials do not have to enforce federal laws. Furthermore, police departments generally have a degree of prerogative regarding law enforcement. If they enforce the laws, an arrest cannot be made without probable cause; what an accused says cannot be used against him unless he is informed of his rights; and he has a right to have his attorney present during police questioning. During questioning, he does not have to say anything, his silence cannot be construed as consent, and he cannot be required to incriminate himself. Arraignment must occur within 48 hours to determine whether there is enough evidence to warrant referring his case to the district attorney. The district attorney has discretion on prosecuting cases, and is only answerable to the voters. If the DA does decide to prosecute the case, a grand jury must agree. At trial, the accused has a right to confront his accusers, have his case heard by a jury selected from the jurisdiction in which he allegedly committed the crime, and he cannot be required to testify or incriminate himself. Furthermore, the prosecution has to prove its case beyond a reasonable doubt. At the conclusion of the trial, the jury can acquit for any reason, and if the jury convicts against slim evidence, the judge can overrule its verdict. Finally, if convicted, the verdict can be appealed.
11. RESPECTFULLY QUOTED, sitpra note 6, at 270 (letter from Lord Acton to Bishop Mandell Creighton dated April 5, 1887).
12. LEVY, OPINIONS, supra note 1, at 75. "A good prosecutor can get a grand jury to indict a ham sandwich if he wants it to" is a common wisdom that did not work for Governor Cosby. He had ordered Chief Justice James DeLancey-whom he had elevated to that position for his support against Rip Van Dam-to get indictments beginning in early 1734, but he couldn't. Id. at 74-75. Cosby then got the Council to approve having the sheriff bum certain issues of Zenger's paper. Id. Finally, the Council issued a warrant for Zenger for publishing "several seditious libels ... tending to raise factions ... among the people ... inflaming their minds with contempt of His Majesty's government, and greatly disturbing the peace thereof." Id. at 75.
13. See id. at 74-75.
15. This is a point Americans tend to forget. Parliament, not the unwritten British Constitution, nor the King or Queen, is the sovereign in Great Britain. As such, its legislation is not subject to. what we would recognize as judicial review. In fact, this is the point which divided the North American colonies from Britain and which still divides and defines our two systems of law and government. In fact, it also defines today's battle lines between the liberal concept of socialist democracy and the conservative concept of Republican, constitutional government.
16. Jury nullification means that a jury may acquit a defendant contrary to evidentiary fact and or law. See JEFFREY ABRAMSON, WE, THE JURY 62 (1994). Whether that is a desirable thing depends on whose ox is being gored. The London jury that acquitted Sir Nicholas Throckmorton of high treason for participating in Wyatt's rebellion was called into the Star Chamber in 1544, fined at least 500 pounds each, and thrown in jail. 26 ENCYCLOPAEDIA BRITANNICA 891 (11 th ed. 1911); PLUCKNETT, supra note , at 133. Today, it is interesting that liberal civil rights advocates and Vietnamese War protestors, who both strongly supported jury nullification as a way to void what they considered unjust laws, now want it abolished since it may thwart the enforcement of abusive laws that they like.
Indiana and Maryland remain the only two states in which judges are required to inform jurors of their right to vote their consciences. ABRAMSON, supra, at 62.
17. ACLU Briefing Paper No. 10, Freedom of Expression 1 (1991) (on file with the Tennessee Law Review).
18. CHARLES H. KINNANE, A FIRST BOOK ON ANGLO-AMERICAN LAW 180 (2d ed. 1952).
19. See id. at 180 n.23 (citing Amos J. Peasle, The Trend of Law in England 1947 Wis. L. REV. 7, 14). Having inherent rights against the state is an idea that has been in and out of favor. The Stoic Greeks thought that slavery was contrary to natural law. ANTHONY H. BIRCH, THE CONCEPTS AND THEORIES OF MODERN DEMOCRACY 118 (1993). Medieval Catholics equated natural law with God's will as revealed by the Roman Catholic Church's divine law. Id. This was the higher law limiting a king's secular powers. Protestant theorists used human reason as the source of law having authority over governments. Grotius summarized that idea by saying "the law of nature is a dictate of right reason, which points out that an act, according as it is or is not in conformity with rational nature, has in it a quality of moral baseness or moral necessity." Id. (quoting G.H. SABINE, A HISTORY OF POLITICAL THEORY 424 (1937).
Hobbes and Locke deduced an opposing hypothetical state of nature predating formal political authority. Id. Hobbes saw that pre-political existence resulted in the survival of the fittest in which no rights, except the right of self-defense existed. Id. For protection, Hobbes saw humans giving up their freedoms-except for their right to life-to governmental authority. Id. On the other hand, Locke had a higher opinion of humans and believed that they did not forfeit their natural rights of life, liberty, and property within civil society. Id. at 119. This difference marks the point where British and American views on individual rights part company.
The 1688 Glorious Revolution established natural rights in Britain as the "Rights of Englishmen" while the American Revolution did the same in America. However, the threat posed to established order by the American Revolution and particularly the French Revolution caused leaders in Britain to begin talking out of both sides of their mouths. Conservative Edmund Burke supported the American Revolution and several others as "'the rising of practically a whole community ... in defence of what were claimed to be ancient liberties."' Id. at 117 (quoting ALFRED COBBAN, EDMUND BURKE AND THE REVOLT AGAINST THE EIGHTEENTH CENTURY 100 (1960)). However, Burke also claimed government was a practical science that didn't include priori principles. Id. at 119. Parliament liberal Jeremy Bentham called the idea of rights against the state "rhetorical nonsense-nonsense upon stilts." Id. at 120 (quoting J. WALDRON, NONSENSE UPON STILTS 53 (1987)). From there, variations of John S. Mill's idea that the maximization of human happiness was the test of a right's validity. Id. Natural rights in America appear to be supported or rebuked depending on which political agenda is at stake.
20. Richard C. Paddock, Ice T Tells It Like He Is to Stanford Law Students, L.A. TIMES, Feb. 22, 1993, at F2.
21. See BERMAN, supra note 9, at 276-88. See generally THE STATESMAN'S BOOK OF JOHN OF SALISBURY (John Dickinson trans., 1963) (1159) (analyzing governments, rulers, and their respective characters, responsibility and limits).
22. Friedrich Hayak holds that socialism, communism, fascism, Fabianism, humanism are all collectivist theories sharing a common nasty characteristic: They are all propagated by idealists whose ideals require government control and that power either corrupts the idealists or attracts evil people who want to use that power for their own ends. See FRIEDRICH HAYAK, THE ROAD TO SERFDOM 135-52 (1944). Furthermore, from my observations, collectivist ideologies in practice become secular theologies.
23. Lest we forget the reason for our Constitution's prohibition on double jeopardy, the Crown can try a person twice for the same crime. It is not done often, but. it can be done based on a claim that a decision was wrong in law or was in excess of jurisdiction. Magistrate's Court Act, 1980 §11 (Eng.).
24. To quote New York University law professor John Phillip Reid: "Americans did not rebel from Great Britain because they wanted a different government. They rebelled because they believed that Parliament was violating constitutional precepts. Colonial Whigs did not fight for American rights. They fought for English rights." JOHN P. REID, THE CONCEPT OF REPRESENTATION IN THE AGE OF THE AMERICAN REVOLUTION 4 (1989).
25. See Ralph Georgy, The Three-Letter Word that We Dare Not Speak, L.A. TIMES, Sept. 1, 1994, at B7. This fact ought to be self evident to any American. Religion and the religious are regularly derided and attacked by the dominant media-given its powerful influence on opinion and culture, I include Hollywood in that term as opposed to just the news media-and those favoring collectivist (whether called liberal, socialist, communist or whatever, they are all collectivist theories) political ideas. That treatment is an excellent validation of just how far divorced the elite that control what the public sees, hears and reads is from the typical American. 96% of Americans believe in God with 82% being Christians (25% Roman Catholic, 56% Protestant), and 2% Jewish (no other faith accounted for as much as 1%). STEPHEN L. CARTER, THE CULTURE OF DISBELIEF 279 (1993) (citing Ari L. Goldman, Religion Notes, N.Y. TIMES, Feb. 27, 1993, at 9). The stunning item to notice from those figures is that in a nation founded on Calvinist Protestant principles, the media is controlled by that portion considering itself Jewish, Asian religion followers, agnostic, or atheist. See CARTER, supra.
26. Christianity's roots are firmly embedded within Judaic principles found in the Ten Commandments and other parts of the Old Testament. Those principles have been under attack by philosophies from Nihilism to socialism to humanism and beyond. See PETER COLLIER & DAVID HOROWITZ, DESTRUCTIVE GENERATION (1989).
27. Sir William Blackstone may have familiarized America's Founding Fathers with the Rights of Englishmen including the presumption of innocence, due process and taxation by consent, etc. Baron Charles Montesquieu may have familiarized them with separation of powers and coordinated government branches, and John Locke must have done the same with the right of contract, legislative supremacy and self government, but it was the Calvinist concept of conscience that formed the foundation of our most basic principles. Calvin took matters beyond Martin Luther's sanctity of individual conscience in temporal matters. All Christians-not just rulers-had a moral duty to reform the world according to the five points of Calvinism in which the local congregation was the source of truth, the place where God's will was revealed, and the ultimate authority. See BERMAN, supra note 9, at 30-31. This authority demanded defiance of both church and state. See id. This credo was the force behind the civil rights and civil liberties expressed in the constitutions of both England and the United States.
28. Virtt was a human quality composed of selflessness, honor, as seen by the Greeks, Romans, Machiavelli, and others as a duty to be involved in the decisions of community, and a willingness to fight against evil and enemy attack. C.J. FRIEDRICH, CONSTITUTIONAL REASON OF STATE 17-33 (1957). Essentially, virti was the will and ability to do what was necessary-even if personally repugnant-to preserve, as a reason of state, a system which rational reason indicated was worth preserving for one's own protection.
29. In this context, logos means the discovery of the principles of the universe by a rational thought process. This is the process by which the concept of natural law and our other constitutional principles were deduced. It is the logic process used by Aristotle and reflects what made the ancient Greek's thought so different from everybody else at the time. See JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS (H.L.A. Hart ed., 1980).
30. Raison d'Etat as used here simply means the protection and perpetuation of the constitutional order. Doing this under a system like ours means that the very freedoms protecting individuals from government can be used to destroy the system guaranteeing those freedoms. See FRIEDRICH, supra note 28, at 11-14.
31. LEWIS D. EIGEN & JOHNATHAN P. SIEGEL, THE MACMILLAN DICTIONARY OF POLITICAL QUOTATIONS 326 (1993) (quoting Cicero).
32. The difficulty arises in determining who is a legitimate "domestic" enemy. Is that someone with unpopular politics? A president who usurps his constitutional authority? A revisionist U.S. Supreme Court?
33. "The United States shall guarantee to every State in this Union a Republican Form of Government .... U.S. CONST. art. IV, § 4. The Founding Fathers insisted that the term "republic" encompass a representative government in which the federal government had specific powers enumerated in the Constitution and reserved all other authority to the states or the people.
One of the great propaganda successes has been the molding of public perception to the idea that the United States is a democracy. Furthermore, the 1928 U.S. Army Training Manual defined democracy as A government of the masses. Authority derived through mass meeting or any form of 'direct' expression. Results in mobocracy. Attitude toward property is communisticnegating property rights. Attitude toward law is that the will of the majority shall regulate, whether it be based upon deliberation or governed by passion, prejudice, and impulse, without restraint or consequences. Results in demagoguery, license, agitation, discontent, anarchy. Robert Welch, Republics and Democracies, THE NEW AM., June 30, 1986, at 1, 6. Contrast the previous definition with its 1952 replacement in the Department of the Army Field Manual Soldier's Guide: Meaning of democracy. Because the United States is a democracy, the majority of the people decide how our government will be organized and run-and that includes the Army, Navy, and Air Force. The people do this by electing representatives, and these men and women then carry out the wishes of the people. Id. at 6-7. Even Thomas Jefferson altered his definition of republic; in his later years, he began to talk about it as a democracy, a view not shared by the other Founders. STEPHEN B. PRESSER, RECAPTURING THE CONSTITUTION 37 (1994).
34. See Harvey C. Mansfield, Why Equality is Ridiculous, WALL ST. J., Sept. 6, 1994, at A13. Collectivist theories are trying to expand the concept of "equality" beyond what the term means in our system. Equality runs a gamut of degree, but collectivism essentially means that everyone has a right to equal possessions, dignity and social station. That is not what equality means within our judicial and governmental system. Equality is Judeo/Christian in origin and means equality before God and the law. "God is no respecter of persons." Acts 10:34 (King James). A judge should not "wrest the judgment of thy poor in his cause" meaning rich and poor alike should get equal justice. Exodus 23:6 (King James). Equality, as defined under Anglo-American concepts, simply means having equal protection of the laws and being equal under the law. See PRESSER, supra note 33, at 38.
35. Archibald Cox, Foreword: Constitutional Adjudication and the Promotion of Human Rights, 80 HARV. L. REV. 91, 91 (1966).
36. John Adams, Novanglus Papers, No. VII (1774), in THE WORKS OF JOHN ADAMS
99, 106 (1851).
37. ARNOLD J. TOYNBEE, CIVILIZATION ON TRIAL 23 (1948).
38. See, e.g., Catherine O'Neill, Bring in the Army to End the Fear, L.A. TIMES, Mar. 29, 1994, at B7. Even if it seems like a good idea to naive civilians, this idea about bringing in the military to straighten out civilian problems sends chills down the backs of professional soldiers. See Lt. Col. Charles J. Dunlap, Jr., The Origins of the American Military Coup of 2012, 22 PARAMETERS US ARMY WAR COLLEGE QUARTERLY 2 (Winter 1992).
39. This is a practice that is dangerous beyond belief for seemingly intelligent people to be doing. The Founders understood this and incorporated the following wisdom into our Constitution: "In republics, the very nature of the constitution requires the judges to follow the letter of the law; otherwise the law might be explained to the prejudice of every citizen, in cases where their honor, property, or life is concerned." BARON DE MONTESQUIEU, THE SPIRIT OF THE LAWS 153 (Thomas Nugent trans., 1949) (1748).
40. Peter Collier and David Horowitz were two of the major players causing trouble during the Sixties. Together, they edited RAMPARTS, the former liberal Catholic magazine that became the voice of Sixties radical protest. Robert Sheer, the editor who transformed RAMPARTS into radicalism was deposed in a "coup" by Horowitz and friends after Sheer wasn't pushing the envelope far enough. Collier, Horowitz, Tom Hayden, Angela Davis, Bobby Scale's Black Panthers and others were all trying to instigate a proletariat revolution that would create a socialist society in the United States.
41. COLLIER & HOROWITZ, supra note 26, at 16.
42. Id. at 322-23 (quoting IRVING KRISTOL, Two CHEERS FOR CAPITALISM 137 (1978)).
43. Id. at 263.
44. FYODOR DOSTOYEVSKY, THE BROTHERS KARAMAZOV 236 (Constance Gamett trans., 1950) (1880).
45. See PAUL KURTZ, IN DEFENSE OF SECULAR HUMANISM 5 (1983).
46. See ROBERTO M. UNGER, KNOWLEDGE AND POLITICS 88-100 (1975).
47. Seventy-seven men, women and children were killed on April 19, 1993, in Waco, Texas. William Booth, Final Death Toll of Waco Cult Appears to be 77, Officials Say, WASH. POST, April 30, 1993, at A19.
48. Donald P. Scott, a reclusive 61 year-old multimillionaire, was murdered on October 2, 1993, in the living room of his Malibu ranch home by a Los Angeles County Sheriff's Deputy during an early-morning drug raid. Daryl Kelley, Ventura D.A. Says Fatal Raid Was Unjustified, L.A. TIMES, March 30, 1993, at A3, A19. Member's of the Sheriffs Department, Los Angeles Police Department, U.S. Drug Enforcement Administrator, National Guardsmen, and National Park Service took part in the raid. Id. A DEA agent claimed he had seen marijuana growing on Scott's ranch but drugs were not found during the raid. Id. However, the raid was an attempt to find narcotics which would justify seizing Scott's 200 acre, $5 million ranch under federal forfeiture laws. See id.
49. Randy Weaver's wife was shot through the head by FBI sniper Lon Horiuchi while holding her baby. Louis Sahagun & Doug Conner, Two White Separatists Acquitted of Murder, L.A. TIMES, July 9, 1993, at Al, A18; see GERRY SPENCE, FROM FREEDOM TO SLAVERY: THE REBIRTH OF TYRANNY IN AMERICA (1993).
50. Sahagun & Conner, supra note 49, at Al, A19.
51. Philip Weiss, Off the Grid, N.Y. TIMES, Jan. 8, 1995, § 6 (Magazine), at 24, 50. The liberal incredulity Weiss notes is the collectivist ideology's fatal naivete: "The socialist state justifies itself on the ground that the concentration of power is necessary to do good; but it has never solved the problem of how you ensure that power bestowed to do good will not be employed to do harm, especially when you remove all obstacles to its exercise." EIGEN & SIEGEL, supra note 31, at 547 (quoting Arthur M. Schlesinger, Jr.).
52. The BATF has established a long record for this sort of entrapment. See Carol Vinzant, ATF-Troop, Spy, March 1994, at 44.
53. Sahagun & Conner, supra note 49, at Al.
54. Telephone interview with Tod Foster, Reporter, Spokesman Review (July 13, 1995). Spokane, Washington's Spokesman Review was a Pulitzer Prize runner-up for its coverage of the Randy Weaver story. Foster confirmed that Weaver was initially given an incorrect trial.
55. FBI Admits Photos of Idaho Shootout Scene Were Staged, Associated Press, L.A. TIMES, May 28, 1993 at A20.
56. Officials Decline to Charge FBI Sharpshooter, L.A. TIMES, Dec. 9, 1994, at A42.
57. CATHERINE A. MACKINNON, ONLY WORDS 107 (1993).
58. The Crusaders. Speak Out, (Buena Vista Productions, Dec. 31, 1994). This Crusaders show segment involved intimidation by HUD criminal investigations into keeping quiet about objections to housing for drug addicts and criminals in their neighborhoods. Considering the principle of government muzzling free speech, surprisingly little coverage was given to this issue by the liberal media. I take this as a prima facie agreement with HUD's policy among those who. decide what we read, see, and hear. See Heather MacDonald, Free Housing Yes, Free Speech No, WALL ST. J., Aug. 8, 1994, at A16; Andrea Peyser, HUDs Bully Boys, N.Y. POST, Aug. 31, 1994, at 4.
59. Richard Goldstein, The New Sobriety, THE VILLAGE VOICE, Dec. 30, 1986, at 23, 24.
60. While a TV reporter, I always noticed that those on the left-side of the political spectrum were by far the better interviewees. They were almost always more photogenic, articulate and passionate than those on right. Because of that, their message got heard and had more credibility than that of their opposition.
61. Joseph Stalin, before authorizing 40,000 death warrants, stated: "To choose one's victims, to prepare one's plan minutely, to slake an implacable vengeance, and then to go to bed . . . there is nothing sweeter in the world." Robert Conquest, Lenin's Guffaw, NEW REPUBLIC, Sept. 15, 1986, at 18, 19.
62. NAT'L COMM'N ON LAW OBSERVANCE AND ENFORCEMENT, LAWLESSNESS IN
LAW ENFORCEMENT (1933).
63. Donald Kagan, Why Western History Matters, WALL ST. J., Dec. 28, 1994, at A12.
64. COLLIER & HOROWITZ, supra note 26; MACKINNON supra note 57.
65. See, e.g., Paddock, supra note 20, at F2.
66. A. Frank Fabian, Repeal the Arms Clause, S.F. CHRON., Nov. 29, 1994, at A20. A. Frank Fabian says the Bill of Rights is a reflection of "criminal class" values. Id. However, most theories fall short of his idea and opt for pushing judicial and legislative activism. See id.
67. DAVID H. FISCHER, ALBION'S SEED 795 (1989).
68. E. WAYNE HOUSE, RESTORING THE CONSTITUTION 94 (1987) (citing E. SMITH,
CREED OF PRESBYTERIANS 142 (1942)).
69. Calvinism's 5 points are:
1. Depravity: Total corruption of man from Adam's original sin. Humans are capable
of committing any horror and need to control their emotions.
2. Covenant: The relationship of man to God and man to man is a series of divine
3. Election: Christ died only for the chosen, and his covenant is not open to everyone.
Choose those you associate with carefully.
4. Grace: The "motion of the heart"; God's gift of soaring spirit to the chosen or
5. Love: Involves God's love, and also the idea that each member of the community
is to love and be responsible for each other (bundle of love).
FISCHER, supra note 67, at 23-24.
70. Collectivist theory has a hidden effect on Professor Harold J. Berman's ten basic
characteristics of Western law. These characteristics are listed below:
2. Professional legal specialists;
3. Academic legal training;
4. Legal institutions and rules which are evaluated and explained;
5. Law treated as a whole body, a corpus juris;
6. Growth of law within the framework of a consistent character;
7. Change through internal growth;
8. Law transcending politics;
9. Supremacy of law within multiple jurisdictions and legal systems within the corpus
10. Transcendence of revolutions because of times principles. BERMAN, supra note 9, at 37-39 (1983). See generally Richard A. Posner, The Decline of Law as an Autonomous Discipline: 1962-1987, 100 HARV. L. REV. 761 (1987). Professor Berman believes that only the first four are still relatively intact, and the remaining six are either lost or sliding toward extinction. BERMAN, supra note 9, at 37-38.
71. It is very easy to forget just how much of a hold the Ku Klux Klan had until the mid-Sixties. My hometown of Chapel Hill, North Carolina, being a university town, was always a fairly liberal place for the South. But all facilities were marked "white" or "colored," and the difference was enforced. Among my memories as a child in the 1950s is seeing a police officer display his Klan robe while my second grade class toured the police station. I also remember hearing Klan members talking and planning at a gas station where I used to stop at the end of my paper route. Furthermore, I recall seeing several cross bumings while on camping trips.
72. During my senior year, 1965-1966, a new school superintendent named Laurence G. Paquin was hired from New Jersey. He immediately began inciting a race war within the school system. His favorite method was to bait the white student government leaders about their racism and enjoy the fun as black students took over. I always thought some of the black students were shills since they were more articulate and skilled at the slogan-bashing that was in vogue at the time.
73. Homing v. District of Columbia, 254 U.S. 135, 138 (1920). Maryland and Indiana are the only states in which judges have no choice. Their respective state constitutions require that jurors be informed about their nullification authority. MD. CONST. art. XXIII; IND. CONST. art. 1, § 19.
74. See Peter J. Riga, The Jury: Judges of Law and Fact (stating that judges will not allow jurors to be informed of their nullification authority) (on file with the Tennessee Law Review).
75. While trying to retrieve evidence from the White House, confrontations between the Secret Service and Special Prosecutors became almost a daily event. I recall one incident in which William Ruckelshause had a shoving match over some documents. Two years ago, after hearing Secret Service Director John Magaw (now BATF Director) on a San Francisco radio station, talking about contingency plans, I wrote and inquired as to the Service's plan and obligation if it ever found itself protecting an outlaw president. I have never received a response.
76. A worse version of Richard Nixon could easily have declared a constitutional crisis or some other emergency under his presidential directive authority to block impeachment. This was a very real possibility as the military was angry at Congress about Vietnam, and Nixon had won 49 of the 50 states. I interviewed many military personnel who, surprisingly, said that they would do whatever their Commander-in-Chief ordered.
77. Telephone interview with Doris A. Graber, Professor of Political Science, University of Illinois, Chicago (June 8, 1994); see DORIS A. GRABER, MASS MEDIA AND AMERICAN POLITICS (1980): MEDIA POWER IN POLITICS (Doris A. Graber ed., 1984).
78. Telephone interview with David L. Altheide, Professor of Justice Studies, Arizona State University (June 9, 1994); see DAVID L. ALTHEIDE, CREATING REALITY (1976); DAVID L. ALTHEIDE & ROBERT P. SNOW, MEDIA WORLDS IN THE POSTJOURNALIsM ERA (1991).
79. Telephone interview with Richard V. Ericson, Professor of Law and Sociology, Green College, University of British Columbia (June 8, 1994).
80. This is one of the major reasons for the destructive political agendas that have taken such firm hold on society. I continue to have constant battles on the issue of the news media's job. The dominant media newsrooms nurture the prevalent idea that reporters should be reporting agenda instead of fact. See David Brooks, Journalists and Others for Saving the Planet. WALL ST. J., Oct. 5, 1989, at A26 ("As the science editor at TIME [Charles Alexander] would freely admit that on this issue we have crossed the boundary from news reporting to advocacy."); William Power, CNN Business Editor Did Video Work for Brokers, WALL ST. J., July 24, 1992, at CI, C15. The public perception about firearms not being an individual right was, and continues to be, a complete media fabrication.
81. All American Colonists from England did not come from the same place but from four distinct areas of England. FISCHER, supra note 67, at 793. They brought four rather distinct cultures which can be seen today in the regional stereotypes. Hard core religious protestors from England's eastern section, East Anglia, settled in Massachusetts. Id. at 793-
94. Aristocratic types from South England came to Virginia. Id. at 794. The Delaware Valley was colonized by Quakers from England's North Midlands. Id. The South and back country was settled by evangelical Presbyterian border fighters from England's Borderlands. Id. at 794-95. All of these areas also contained a 30% mix of peoples from other countries such as Ireland, Germany and the Netherlands. Id. at 816-19.
82. George Orwell, The English People, in 3 THE COLLECTED ESSAYS, JOURNALISM AND LETTERS OF GEORGE ORWELL 1, 26 (Sonia Orwell & Ian Angus eds., 1968). The entire quote reads: "To write or even speak English is not a science but an art. There are no reliable rules .... Whoever writes English is involved in a struggle that never lets up even for a sentence. He is struggling against vagueness, against obscurity, against the lure of the decorative adjective, against the encroachment of Latin and Greek, and, above all, against the worn-out phrases and dead metaphors with which the language is cluttered up." Id.
83. A NEW DICTIONARY OF QUOTATIONS ON HISTORICAL PRINCIPLES FROM ANCIENT AND MODERN SOURCES 349 (H.L. Mencken ed., 1991) (quoting Walt Whitman).
84. CARL J. FRIEDRICH, LIMITED GOVERNMENT: A COMPARISON 93 (1974).
85. See RICHARD BERNSTEIN, DICTATORSHIP OF VIRTUE: MULTICULTURALISM AND THE BATTLE FOR AMERICA'S FUTURE 3-11 (1994); Islam and Dialogue in America, RIGA REPORTS NEWSLETTER (Peter J. Riga, Houston, Tex.), June 7, 1995, at 1.
86. Zorach v. Clauson, 343 U.S 306, 313 (1952).
87. Torcaso v. Watkins, 367 U.S. 488, 495 n.1 I (1961).
88. FRIEDRICH W. NIETZSCHE, THUS SPAKE ZARATHUSTRA 5 (1967).
89. A NEW DICTIONARY OF QUOTATIONS ON HISTORICAL PRINCIPLES FROM ANCIENT & MODERN SOURCES 215 (H.L. Mencken ed., 1991) (quoting Benjamin D'Israeli, 1867 speech in the House of Commons).
90. JOHN S. MILL, THE SUBJECTION OF WOMEN 67 (1869).
91. See Gertrude Himmelfarb, Re-Moralizing America, WALL ST. J., Feb. 7, 1995, at A26. in 7 WINSTON S. CHURCHILL: His COMPLETE SPEECHES, 1897-1963, at 7566 (Robert Rhodes ed., 1974).
92. Winston S. Churchill, Speech before the House of Commons (November 17, 1947) in 7 WINSTON S. CHURCHILL: His COMPLETE SPEECHES, 1897-1963, at 7566 (Robert Rhodes ed., 1974).
93. R.W. EMERSON, ENGLISH TRAITS 42 (1856).
94. OLIVER W. HOLMES, JR., THE COMMON LAW 1 (1991). This book is not just about the common law, as I read it. It has an edge that cuts at the notion of law being simply logic. Holmes argues that law evolves according to a combination of need, common sense and logic. See HOLMES, supra.
95. EMERSON, supra note 93, at 139-40. [Vol. 62:759
96. LEWIS D. EIGEN & JOHNATHAN P. SIEGEL, THE MACMILLIAN DICTIONARY OF POLITICAL QUOTATIONS 331 (1993) (quoting Franz Loerher).
97. ON THE RECORD, TIME, March 18, 1985, at 73.
98. See BERMAN, supra note 9, at 32-33. Professor Berman ironically notes the similarities between the Puritan Code of the Massachusetts Bay Colony, the Body of Liberties of 1641, and the Soviet Moral Code of the Builder of Communism. Id. The Soviet code contained such phrases as "conscientious labor for the good of society-he who does not work, neither shall he cat"; "collectivism and comradely mutual assistance-one for all and all for one"; "honesty and truthfulness, moral purity, modesty, and unpretentiousness in social and personal life": and "an uncompromising attitude toward injustice, parasitism, dishonesty, careerism, and money-grubbing". Id.
99. See id. at 478.
102. Id. at 19.
103. See F.C. GREEN, A COMPARATIVE VIEW OF FRENCH AND BRITISH CIVILIZATION (1850-1870) 106-07 (1963). 104. Id.
105. See Kagan, supra note 63, at A12.
106. George F. Will, A Kind of Compulsory Chapel, NEWSWEEK, November 14, 1994, at 84.
107. See, e.g., MAX WEBER, MAX WEBER ON LAW IN ECONOMY AND SOCIETY 297 (Max Rheinstein ed. & Edward Shils & Max Rheinstein trans., 1954). Marxist evolutionary dogma holds that all societies pass through the economic stages of slavery, feudalism, and capitalism to final perfection as a socialist society.
108. CARL J. FRIEDRICH & ZBIGNIEW K. BRZEZINSKI, TOTALITARIAN DICTATORSHIP AND AUTOCRACY 9 (1956).
109. Matthew 22:21. "Render therefore unto Caesar the things which are Caesar's, and unto God the things that are God's." Id. See Job.
110. St. Augustine of Hippo recognized the state as "a robber band" and subordinated its power to God's higher law. He made a clear distinction between law and morals. He thought that the church, instead of the state, was the center of community justice, and defined what constituted a "just war." As a result of these beliefs, St. Augustine felt that the state and its positive law no longer punished sin, but violations of public order. The premise of this major step was based on replacing Cicero's concept of a community which was based solely on positive law with the idea of a community based on charity and love-both of fundamental importance to a republic. St. Thomas Aquinas has always been a paradox for
me. He too subjected secular positive law to God's higher law. He developed a four-point test of legitimate law which asks: First, is the law reasonable and rational?; Second, is it directed toward the common good?; Third, is everyone's reason suited to become law?; Finally, has everyone who has to follow the law been made aware of it? However, Aquinas
also endorsed the notion that "necessity knows no law." THOMAS AQUINAS, THE SUMMA THEOLOGICA, Part I-1, Q. 96, art. 6, at 75 (Fathers of the Eng. Dom. Province trans., 1917).
111. Much to my amazement, a high percentage of those I have asked in Hollywood can name only two of the Ten Commandments. Therefore, perhaps a listing is warranted:
I. Thou shalt not have any other gods before me.
2. Thou shalt not make unto me any graven image.
3. Thou shalt not take the name of the Lord thy God in vain ....
4. Remember the sabbath day, to keep it holy.
5. Honor thy father and thy mother.
6. Thou shalt not kill [actually, murder].
7. Thou shalt not commit adultery.
8. Thou shalt not steal.
9. Thou shalt not bear false witness against thy neighbor.
10. Thou shalt not covet thy neighbor's [possessions].
Exodus 20: 3-17 (King lames).
112. See WILLIAM V. WELLS, I THE LIFE AND PUBLIC SERVICE OF SAMUEL ADAMS 154 (1865).
114. J. HOWE, THE CHANGING POLITICAL THOUGHT OF JOHN ADAMS 189 (1966).
115. Nietzsche is the philosophical guru of some of the theorists whose ideas have gained such damaging notoriety. Nietzsche's basic idea was that Christianity's focus on life after death kept it from dealing with the temporal world. He also thought that people needed to get in touch with their irrational self through angst. Hitler's Nazis liked Nietzsche's idea of the Ubermensch (Superman) so much they used it for their propaganda. LAROUSSE DICTIONARY OF BELIEFS AND RELIGIONS 371-72 (Rosemary Goring ed., 1994).
116. Horace Mann is not usually thought of as a contributor to our problems today. But because of his infatuation with the Prussian public school system for the lower classes, he advocated the American adoption of a system designed to produce people who would obey authority. These persons were not taught the higher level reasoning skills that Prussian upper class and aristocratic students received in an entirely separate system. Teachers for the two systems were trained differently and never mixed. JONATHAN MESSERLI, HORACE MANN (1972).
117. John Dewey was a self-proclaimed socialist who espoused using the educational system to instill social control and socialist values in children as they attended school. This long range plan has worked very well. Given his prolific writing and academic platform at the University of Chicago and Columbia University, Dewey gained many followers. He
claimed to dislike communism but also wanted to end the private ownership and means of production. In his writing, Dewey described the elitist philosophy which he wanted the Democratic party to represent. Under President Woodrow Wilson, Dewey saw the possibility of the Democratic party becoming "[a] party which in effect is as nationalistic as the Republican, but which allies its nationalism with the interests of the masses and not of the privileged pecuniary classes." John Dewey, The Hughes Campaign, in 10 JOHN DEWEY: THE MIDDLE WORKS, 1899-1924, at 252 (Jo Ann Brydston ed., 1976).
118. John Paul Sartre was dedicated to leftist causes, and his writings dealt with the meaningless of life and the precondition for accepting the idea of existentialism. Sartre won the 1964 Nobel Prize for literature but refused to accept it. LAROUSSE, supra note 115, at 460.
119. QUOTATIONS FROM CHAIRMAN SAM: THE WIT AND WISDOM OF SENATOR SAM ERVIN 46 (Herb Altman ed., 1973) [hereinafter QUOTATIONS FROM CHAIRMAN SAM].
120. See QUOTATIONS FROM CHAIRMAN SAM, supra note 119.
122. Fabian, supra note 66, at A20.
123. COLLIER & HOROWITZ, supra note 26, at 144. ("American Leftists are steeped in a tradition of conspiracy and deceit whose instruments are secretive "vanguards" and "popular fronts", through which basic commitments are regularly concealed and important agendas are always covert at the same time that charges of"red-baiting" and "McCarthyism" are being invoked to shield the underlying allegiances from the scrutiny they deserve.")
124. See Dennis Cauchon, Civil Dispute with the ACLU: Debate Over Competing Principles, USA TODAY, March 31, 1993, at Al.
125. ACLU briefing paper No. 10, Freedom of Expression 1 (1991) (on file with the Tennessee Law Review).
126. As evidenced by the following ruling, jurors may vote their conscience: "If the jury feels the law under which the accused is unjust, or that exigent circumstances justified the action of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision." United States v. Moylan, 417 F.2d 1002, 1006 (4th Cir. 1969), cert. denied, 397 U.S. 910 (1970). Indiana and Maryland's state constitutions guarantee that criminal juries have the right to determine both the law and the facts of any case before them. IND. CONST., art. I, § 19; MD. CONST., art. XXIII. Maryland's judges tell jurors: "'[W]hatever I tell you about the law while it is intended to be helpful to you in reaching a just and proper verdict in the case, it is not binding upon you as members of the jury and you may accept it or reject it."' Alan W. Scheflin & Jon Van Dyke, July Nullification: The Contours of a Controversy, 43 LAW & CONTEMP. PROBS., Autumn 1980, at 51,83 (quoting Wyley v. Warden, 372 F.2d 742, 733 n.l (4th Cir. 1967).
In Indiana, a judge may tell may "declare the law to the jury, but it ... must not be done in a manner calculated to bind the consciences of the jurors or restrict them in their right . .. to determine the law for themselves." Burris v. State, 34 N.E.2d 928, 929 (Ind. 1941). Between 1971 and 1973 Kansas required its judges to give nullification instructions. See JON VAN DYKE, JURY SELECTION PROCEDURE: OUR UNCERTAIN COMMITMENT TO REPRESENTATION PANELS 241-42 (1977).
127. Cauchon, sttpra note. 124, at Al.
128. George F. Will, A Law to End Capital Punishment, L.A. TIMES, May 19, 1994, at B7.
129. See Duncan v. Louisiana, 391 U.S. 145, 156 (1968) ("If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it.").
130. See United States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972). The court in Doughtery stated that the "jury system has worked out reasonably well overall ... with the jury acting as a 'safety valve' for exceptional cases, without being a wildcat or runaway institution." Id. at 1134. The "jury gets its understanding as to the arrangements in the legal
system" from the judge's instructions and through "the informal communications from thetotal culture." Id. at 1135. The "totality of input generally convey adequately enough the idea of prerogative, of freedom in an occasional case to depart from what the judge says." Id. The court was afraid that if jurors were aware of their nullification authority, it would
rob them of their protection. Id. at 1136. "[A] juror ... is entitled to the protection when he takes an action that he knows is right, but also knows is unpopular, either in the community at large or in his own particular grouping, that he can fairly put it to friends and neighbors that he was merely following the instructions of the court." Id.
131. Id. at 1135.
132. MANUAL OF MODEL CRIMINAL JURY INSTRUCTIONS FOR THE NINTH CIRCUIT §1.01 (Comm'n on Model Jury Instructions Ninth Cir., 1992). The full charge is as follows: Ladies and gentlemen: You now are the jury in this case and I want to take a few minutes to tell you something about your duties as jurors .... It will be your duty to decide from the evidence what the facts are. You, and you alone, are the judges of the facts. You will hear the evidence, decide what the facts are, and then apply those facts to the law which I will give to you. That is how you will reach your verdict. In doing so you must follow that law whether you agree with it or not. Id. This charge complies with an often-cited 19th century ruling that claims jurors are obligated to follow the law: "[the] jury is expected to be governed by law, and the law it should receive from the court." Sparf v. United States, 156 U.S. 51, 62 (1895) (emphasis omitted).
133. See Lynne V. Cheney, The End of Histor,, WALL ST. J., October 20, 1994, at A22; Kagan, supra note 63, at A12. Here we confront the danger of the cultural damage we've sustained. Some of that damage is from multiculturalism, some from outright contemporary and historical revisionism, some from immigration-legal and illegal-and some is from all of these.
134. By cultural poisoning, I mean that the concepts of Anglo-American law and government have been systematically replaced through historical revisionism, judicial activism and immigration. The first two exacerbate the third. Prior to 1965, US immigration policy favored those from Western Europe. That meant immigrants already possessed most of the Western cultural and religious values on which Anglo-American law and government is based. Since 1965, however, the US has received millions of people from parts of the world having completely different cultural and religious values, which simply aren't compatible with our system.
135. See Miranda v. Arizona, 384 U.S. 436 (1966).
136. See ACLU, POLICY GUIDE, Policy No. 47, at 95 (rev. ed. 1993) (on file with the Tennessee Law Review)[hereinafter POLICY GUIDE] One policy states: "The ACLU agrees with the Supreme Court's long-standing interpretation of the Second Amendment that the right to bear arms applies only to the preservation of a well-regulated militia. Except for
police and military purposes, we believe the possession of weapons by individuals is not constitutionally protected." ACLU Foundation of S. Calif., Notes from the Docket of the ACLU Foundation of S. Calif. (1994) (on file with the Tennessee Law Review). The ACLU's Southern California Foundation stated that: In February , ACLU Foundation began an extensive public education campaign on the meaning of the Second Amendment. Invoked as a constitutional argument against gun control by groups like the National Rifle Association, the Second Amendment has been draped in myth and misinterpretation. In fact, the Second Amendment was never meant to allow the proliferation of private firearms that plagues our nation today. Id. at 1. The Foundation's information campaign booklet misrepresents both court rulings and history. For example, the ACLU claims that a majority of Second Amendment scholars agree that the right to keep and bear arms is guaranteed only to state-run militias. Supra POLICY GUIDE. However, other scholars contradict this statement. See, e.g., Glenn Harlan Reynolds, Constitution Backs Gun Lobby, N.Y. TIMES, May 12, 1994, at A24.
137. See S. ROBERT LICHTER ET AL., THE MEDIA ELITE 20-53 (1990). "In sum, the media elite's perspective is predominantly cosmopolitan and liberal. Their outlook reflects the social (rather than economic) emphasis of what political scientist Everett Ladd calls the 'new liberalism' of upper class groups. Leading journalists criticize social norms and establishment groups; they are very liberal on social issues such as abortion, homosexual rights, affirmative action, and environmental protection. Many endorse an expanded welfare state ...." Id. at 32. A number of media surveys have verified the above sketch, developed by S. Robert Lichter and his associates. The most recent-and most ambitious-to do so was by the Los ANGELES TIMES, in 1985. The TIMES interviewed more than 3,000 reporters and editors at over 600 newspapers around the country. Id. at 41-42.
138. Telephone interviews with Alan Dershowitz, Law Professor, Harvard University (May 3-4, 1994).
140. A recent HCI produced television commercial states:
"When our Founding Fathers wrote the Second Amendment to the Constitution, they made it clear that only a state militia had the right to bear arms. They couldn't have envisioned that someday the gun lobby would try to use it to block sensible gun control laws at a time when America is being devastated by gun violence. For decades federal courts have unanimously ruled that the 2nd Amendment only pertains to arming a state militia and that gun control laws do not violate the Constitution. Former Chief Justice Warren Burger has called the gun lobby's distortion of the Second Amendment a 'fraud on the American public.' I'm Sarah Brady. Please help me to fight the fraud and fight the violence. HCI ads now feature a quote by the late Chief Justice Warren Burger saying the notion the Second is an individual right is "a fraud on the American public." Handgun Control, Inc., Legal Action Project TV Spot, "Second Amendment" (transcript on file with the Tennessee Law Review).
141. Sanford Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637, 658 (1989) (quoting Fred Donaldson, Letter to the Editor, AUSTIN AM. STATESMAN, July 8, 1989, at A19).
142. Ullmann v. United States, 350 U.S. 422, 428 (1950). See LEARNED HAND, THE BILL OF RIGHTS (1958).
143. Edmund Burke, Tracts Relating to Property Laws (1765), in 9 THE WRITINGS AND SPEECHES OF EDMUND BURKE 452, 453 (Paul Langford et al. eds., 1991). This metaphor doesn't work when applied to suburban-style detached housing. Instead, think of the row houses, sharing common walls, which are very common in England and in Eastern United States cities like Baltimore, Philadelphia, and New York.
144. Anyone doubting the role education plays in the schemes of those trying to conquer free societies should note the following. "Education is a weapon, whose effect depends on who holds it in his hands and at whom it is aimed." EIGEN & SIEGEL, supra note 31, at 152 (quoting Joseph Stalin). "Give me four years to teach the children, and the seed I have sown will never be uprooted." Id. at 151 (attributed to V.I. Lenin). "I believe that-education is the fundamental method of social progress and reform." JOHN DEWEY ON EDUCATION: SELECTED WRITINGS 437 (Reginald D. Archambault ed., 1964) (keeping in mind that the term "social progress" has long been a cover phrase for socialism and even communism).
145. See George F. Will, A Law to End Capital Punishment, L.A. TIMES, May 19, 1994, at B7.
Harvard Law Professor Duncan Kennedy speaks for a sizable number of his colleagues who believe that judges should rewrite the Constitution according to collectivist views as often as they can. Duncan Kennedy, Toward a Critical Phenomenology of Judging, 36 J.L. EDUC. 518, 521 (1986). "1 see myself as the focus of political energy for change in an
egalitarian, communitarian, decentralized, democratic socialist direction." Gary C. Leedes, Resisting Radical Transformation of the Constitution, in RESTORING THE CONSTITUTION: 1787-1987, 219 (1987).
146. COLLIER & HOROWITZ, supra note 26 at 170-91.
147. President Theodore Roosevelt saw property not as "owned" but as "held in trust."
Franklin Delano Roosevelt embraced numerous collectivist concepts within his New Deal
programs, which used the Constitution's Commerce Clause as a loophole to create the
modem regulatory state. Dwight D. Eisenhower endorsed Social Security. John F. Kennedy
and Lyndon Johnson pushed numerous collectivist concepts as part of their respective "New
Frontier" and, especially, "Great Society" programs. Richard M. Nixon proposed a
guaranteed income for all Americans, established the Environmental Protection Agency and
proposed some of the most egregious of police state solutions for crime (preventive detention
and the serving of warrants without police knocking first). Bill Clinton proposed national
148. Horace Mann was so naively taken with the prosperity and literacy of Prussian society that he could not see the totalitarianism behind it. Prussia was admired as a model by other aspiring nation-states. Its citizens were well fed and clothed, literate and absolutely loyal, even if this meant they were also cogs in a national machine whose lives took on meaning largely in terms of some manifestation of national purpose. Work, sacrifice, and patriotism were Prussian ideals, all synthesized into an unquestioning obedience to the state. Such was the envied and admired achievement of the Prussian rulers, and the credit for their accomplishment rested with the most organized system of education on the continent. No creation of some fickle village or town board, the schools were an instrument of the state and their curricula were first and foremost a matter of national political policy. Through them, schoolmasters carried out a program of instruction which systematically, efficiently, and unswervingly aimed at achieving national rather than individual, familial, or local goals. JONATHAN MESSERLI, HORACE MANN: A BIOGRAPHY 392-93 (1972). See JOHN DEWEY, DEMOCRACY AND EDUCATION 215-226 (1917); ROBERT B. WESTBROOK, JOHN DEWEY AND AMERICAN DEMOCRACY 171-72, 192, 429-30 (1992).
149. See supra note 137. Without concerted media misrepresentations, it is highly doubtful that much of the social legislation regarding environment and firearms, to take two examples, could have been pass For examples of the damage done by activist judicial rulings, see SENATOR SAM J. ERVIN, JR., PRESERVING THE CONSTITUTION 125-50 (1984); DWIGHT D. MURPHEY, LIBERALISM IN CONTEMPORARY AMERICA 146-163 (1992).
150. I've often been told that a juror has the "authority" to vote his conscience but not authority in the Constitution. The counterargument is that without the freedom to vote one's conscience, a jury isn't really a jury. Hence, the right is inherent in the institution itself.
151. Every society has a due process method of eliminating members who are a threat to the others, even primitive groups. E. ADAMSON HOEBEL, THE LAW OF PRIMITIvE MAN: A STUDY IN COMPARATIVE LEGAL DYNAMICS 26-28 (1954). In Eskimo society, a killer who threatens the community is killed by a "public spirited" volunteer after being sanctioned by the community's "adult males." The dead man's relatives have no right of revenge. Id. at 28.
152. Robert Dillon, A Call to Arms, L.A. MAG., April, 1994, at 52, 55.
153. James C. McKinley, Jr., Man Kills Robber; Murder Is Charged, N.Y. TIMES, July 22, 1990, at Al, A25.
155. Telephone Interview with Jonathon Walsh, Assistant District Attorney, Bronx, N.Y. District Attorney's Office (July 26, 1990).
156. Compare SCIIINDLER'S LIST (Universal Studios & Amblin Entertainment 1993) with THOMAS KENEALLY, SCHINDLER'S LIST 346-47 (1982). [Vol. 62:759
157. MESSERLI, supra note 148, at 392-400.
158. CHRISTOPHER LASCH, THE NEW REPUBLICANISM IN AMERICA 146, 169 (1965).
159. See John Sedgwick, The Last Conservative, BOSTON MAG., December 1994, at 81, 114; The Charlie Rose Show: Interview with Harold Bloom (PBS television broadcast, Dec. 29, 1994).
160. Robert Sheer, Media Responsibility, Address before the University Synagogue in Los Angeles (May 17, 1994).
161. Telephone interview with Dennis Cauchon, USA TODAY Reporter (June 8, 1994).
162. Telephone interview with Henry Allen, WASHINGTON POST Reporter (June 8, 1994).
163. See Ted Gest, Firearms Follies: How the News Media Covers Gun Control, MEDIA STUD. J., Winter 1992, at 139; Everett C. Ladd, Misreported Polling Data Fails on Informed Citizenry, CIIRISTIAN SC. MONITOR, June 18, 1993, at 71; Shoot First, Ask Questions Later, MEDIA WATCH, Dec. 1993, at 6; Glenn H. Reynolds, supra note 136, at A24.
164. See Philip Weiss. supra, N.Y. TIMES, Sept. 11, 1994, §6 (Magazine) at 65. Weiss reported that "Senator Dianne Feinstein had singled out the [Austrian Steyr] AUG, for instance, as the 'favorite of drive-by shooters because of its light weight and firepower'." Id. at 66. However, this particular firearm costs about $ 4,000. Facsimile from Torrey Johnson, California Criminalistics Institute, to the author (Sept. 19, 1994) (on file with the Tennessee Law Review). California Department of Justice forensics experts and the Bureau of Alcohol Tobacco and Firearms have estimated that there are approximately 10,000 of them in the country, almost all are owned by police departments, and to their knowledge, none have ever been used in a crime. Id.
165. Telephone interview with Alan Dershowitz, Law Professor, Harvard University (May 3-4, 1994).
166. See WILLIAM A. RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 125 (1970) (2d 1829); see also THOMAS M. COOLEY, THE GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN THE UNITED STATES OF AMERICA 298 (3d ed. 1898); JOYCE L. MALCOLM, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLOAMERICAN RIGHT 163 (1994); JOSEPH STORY, A FAMILIAR EXPOSITION OF THE CONSTITUTION OF THE UNITED STATES 319-20 (1840). Justice Story commented that: One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offense to keep arms, and by substituting a regular army in the stead of a resort to the militia. The friends of a free government cannot be too watchful, to overcome the dangerous tendency of the public mind to sacrifice, for the sake of mere private convenience, this powerful check upon the designs of ambitious men....
The importance of this article will scarcely be doubted by persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the right of the people. The right of the citizens to keep and bear arms had justly been considered, as the palladium of the liberties
of a republic; since it offers a strong moral check against the usurpations and arbitrary power of rulers;' and it will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well-regulated militia would seem so undeniable, it
cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burdens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause in our National Bill of Rights. Id. at 319-20.
Furthermore, Thomas M. Cooley stated:
The [Second] [A]mendment, like most other provisions in the Constitution, has a history. It was adopted with some modification and enlargement from the English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the overturned dynasty in disarming the people, and as a pledge of the new rulers that this tyrannical action should cease .... It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent .... [I]f the right were limited to those enrolled [by the government in the militia], the purpose of this guarantee might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no
permission or regulation of law for the purpose. COOLEY, supra, at 298.
167. See Will iam V. Alstyne, The Second Amendment and the Personal Right to Arms, 43 DUKE L. J. 1236, 1241-49 (1994).
168. Id. at 1242-43.
169. Sanford Levinson, Comment, The Embarrassing Second Amendment, 99 YALE L. J. 637, 650 (1989) (quoting T. SCHROEDER, FREE SPEECH FOR RADICALS 104 (reprint 1969).
170. See Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARv. L. REV. 1685 (1976); ROBERTO M. UNGER, LAW IN MODERN SOCIETY: TOWARD A CRITICISM OF SOCIAL THEORY 66-76, 83-86, 176-81 (1977).
171. Kennedy, supra note 170, at 1776.
173. Stated differently, Professor Kennedy concluded that legal argument forms fall
into opposing categories. Id. Rules operate with objectivity and generality while Standards
operate on fairness, reasonableness and due process permitting case by case application. Id.
Goals fall into opposing categories as well. Individualism operates on self interest, autonomy
and reciprocity, while Altruism operates on sharing, sacrifice and community. In practice,
an argument grounded in rules comports with an individualist goal. An argument in
standards connects with altruism. The problem is that these opposing values and purposes
are not reconcilable within the Western legal system as a whole because they're in
fundamental conflict. See UNGER, supra note 170; ROBERTO M. UNGER, KNOWLEDGE AND POLITICS 88-100 (1984).
174. M. FRANCES MCNANEA, 2,000 CLASSIC LEGAL QUOTATIONS 107 (1992) (quoting
Charles Evans Huglcs, speech to the Elmira, New York Chamber of Commerce, May 3,
175. See JOHN RAWLS, A THEORY OF JUSTICE (1971).
176. At what point does human life begin? The answer determines the whole abortion
issue. In 1981 Stephen Galebach suggested that Congress should legislatively say it begins
at conception. Stephen H. Galebach, A Human Life Statute, 7 HUMAN LIFE REV. 3 (1981).
Yet a Human Life Bill doing just that never made it out of committee. See generally The
Human Life Bill, S.158, 97th Cong., 1st Sess. (1981).
See also Stephen L. Carter, The Morgan Power and the Forced Reconsideration of
Constitutional Decisions. 53 U. CHI. L. REV. 819 (1983) (discussing the Human Life Bill).
177. See, e.g., CAL. PENAL CODE § 197 (West 1988).
178. See, e.g., California v. Davis, 872 P.2d 591 (Cal. 1994).
179. See Richard J. Neuhaus, Don't Cross This Threshhold, WALL ST. J., Oct. 27,
1994, at A20.
180. Marlene Cimons, Human Embryo Research Poses Ethics Dilemma, L.A. TIMES,
Sept. 25, 1994, at Al.
181. QUOTATIONS FROM CHAIRMAN SAM, supra note 119, at 49.
182. COLUMBIA DICTIONARY OF QUOTATIONS 604 (Robert Andrews ed., 1993)
183. Civil Liberties or Civil Security?, WALL ST. J., Dec. 10, 1993, at A14.
184. Derek Hurnphry, Death Emerges as a Civil Liberty, L.A. TIMES, Dec. 1, 1994, at B7.
185. Much of the subversion I'm referring to is very subtle, primarily propaganda of
omission rather than commission. Speaking as a former television reporter, twisting stories
is easy. One can keep stories and unfavorable facts off the air; interview photogenic,
articulate people backing the favored view; and use of words, tones of voice and facial
expressions to signify favor or disapproval. These techniques are used in print as well. In
a front-page story geared to prompt restrictive firearms legislation, reporter Erik Larson
started one sentence: "After the Chinese Army 'suppressed' the Tiananmen Square 'rebellion'
in 1989 .... " Erik Larson, Chinese-Made Rife, Cheap and Powerful, Pours into the US.,
WALL ST. J., May 26, 1994, at A6. Suppressed? Rebellion? What happened to the
massacre of unarmed, peaceful demonstrators? Coming from a news authority figure, it is
commentary carrying the credibility of fact for many. If repeated enough, it's the sort of
propaganda that could alter voting and legitimize state authority.
186. U.S. CONST. art. III, § 3, cl. 1.
187. Arthur M. Schlesinger, A Popular Uprising Against Special Privilege. in
Government, in THE AMBIGUITY OF THE AMERICAN REVOLUTION 80, 82 (Jack P. Greene ed., 1968).
188. BARTLETT'S QUOTATIONS 96 (quoting Titus Livius Maxim).
189. Past societies had dispensers of "extra legal" justice to maintain order. The Romans had Praetorians. Frankish kings meted out extra legal justice, and so did England's
Court of Star Chamber. See CHARLES H. KINNANE, A FIRST BOOK ON ANGLO-AMERICAN LAW 291 (1952).
190. Cf Vigilantes in Colonbia Kill Hundreds in a "Social Cleansing", N.Y. TIMES,
Oct. 31, 1994, at A8.
191. COLLIER & HIOROWITZ, supra note 26 at 170-71.
192. Prine Time s Paeans To Gun Control, MEDIA RES. CENTER, Dec. 1993, at 1.
193. Molly O'Neill, Arming the Armani Set, N.Y. TIMES, Jan. 3, 1993, § 9 (Styles),
194. See, e.g., Claude Brown, The Language of Violence, L.A. TIMES, Mar. 24, 1994,
195. ARISTOTLE, THIE POLITICS 297 (T.A. Sinclair trans., 1962).
196. ROBERT BOLT. A MAN FOR ALL SEASONS (1966).
200. Id. at 53.
201. This commonly used quote is attributed to George Washington, but has yet to be
verified as his. "[A]lthough credited to the 'Farewell' [address][the quote] cannot be found
in it. Lawson Hamblin, who owns a facsimile, and Horace Peck, America's foremost
authority on quotations, informed me this paragraph is apocryphal." RESPECTFULLY QUOTED, supra note 1I, at 147 (quoting GEORGE SELDES, THE GREAT THOUGHTS 441 (1985)).
202. Though I'm told the Declaration of Independence is not considered law, it's
certainly invoked often enough as a basis for claiming "unalienable Rights" such as "Life,
Liberty and the Pursuit of Happiness." THE DECLARATION OF INDEPENDENCE (U.S. 1776). The hypocrisy is that the following portion endorsing the right of revolution is ignored: "[T]hat whenever any form of Government becomes destructive of these Ends, it is the Right
of the People to alter or abolish it, and to institute new Government." Id.
203. EiGEN & SIEGEL, supra note 31, at 625 (quoting Abraham Lincoln, House debate,
Jan. 12, 1848).
204. Id. (quoting Abraham Lincoln, First Inaugural Address, Mar. 4, 1861).
205. ALLAN R. MILLETT & PETER MASLOWSKI, FOR THE COMMON DEFENSE: A
MILITARY HISTORY OF THE UNITED STATES OF AMERICA 82, 229 (1984). The killing and destruction are difficult to imagine even today. Twenty-five percent of Southern military age males were killed. Almost fifty thousand Union soldiers died during May and June of 1865.
Two thirds of the total wcalth in the South was destroyed, not including slaves. See
generally JAMES M. MCPHERSON, THE BATTLE CRY OF FREEDOM (1988).
206. GENERAL HORACE PORTER, L.L.D.: CAMPAIGNING WITH GRANT 476-79 (1897).
207. Id. Then [General Grant] looked toward Lee, and his eyes seemed to be resting on the
handsome sword that hung at that officer's side. He said afterward that this set him to
thinking that it would be an unnecessary humiliation to require the officers to surrender
their swords, and a great hardship to deprive them of their personal baggage and horses;
and after a short pause he wrote the sentence: 'This will not embrace the side arms of
the officers, nor their private horses or baggage.' Grant also informed Union officers
that they were to afford the same courtesy to enlisted men.
208. To this author's knowledge no contrary example can be found.
209. STANLEY ELKINS & ERIC MCKITRICK, THE AGE OF FEDERALISM 465 (1993).
213. United States v. Dennis, 183 F.2d 201, 213 (2d Cir. 1950) (Hand, J.).
214. I believe a brief explanation is necessary to define some concepts about exactly
what a "right" is, or is not to be. It is a Hamlet sort of question. Because as we have seen,
the rights protecting the family members of a constitutional state can easily become poison
in the hands of family members seeking power. Neutralizing that possibility is one of the
main factors behind the tenuous definitions of rights theorists are asking be swallow
However, professor Anthony H. Birch does one of the better jobs I've seen of covering the
subject in a straightforward way. See ANTHONY H. BIRCH, THE CONCEPTS AND THEORIES OF MODERN DEMOCRACY 115 (1993).
Natural rights aside, Professor Birch defines a right simply as a legally binding contract
agreed upon by governed and government. Id. Within that framework, he defines three
kinds of rights: positive rights, created by law within a jurisdiction, to guarantee something
specific like education or pension benefits; moral rights, based on shared community
principles; and political rights, enacted by positive law to guarantee suffrage, political
activity, speech and the like. Id. at 115-16. Under Birch's theory each type of right is either
a right of action (like speech, press or right to bear arms), a right of recipience (welfare,
government program), or right of privacy (sexual conduct, abortion). Id. at 114-15. Birch
is equally definitive on the etiquette of rights. Holders of rights should not use them to
intrude on others, and others should respect everyone's exercise of their rights. Id.
Natural rights are different. These are rights of individuals against the state, which are
derived from the Judeo-Christian concept of God's higher law as a limit on secular power.
Id. at 118. Natural rights are universal rights claimed, by Lincoln for example, for all human
beings because they inhere in all humans regardless of society or state. Id. at 117-18. Thus,
natural rights are, by definition, not positive because they exist regardless of legislative
sanction, and they are not moral in the sense of their being limited to a particular moral code.
This last assertion causes Birch's definition to fray along the edges a bit. Can natural
rights inhere in one who doesn't believe in the Judeo-Christian concept of God and His
higher law? Can they inhere in an atheist? In any case, because they are rights held against
the state, natural rights are political rights of action to prevent and or oppose rogue authority.
215. See supra notes 69-70 and accompanying text.
216. Donald Kagan, Why Western History Matters, WALL ST. J., Dec. 28, 1994, at
A10 (I have paraphrased portions of Kagan's article. Kagan is a professor of classics and
history at Yale. I have intentionally omitted names like Thomas Hobbes, John Locke, and
others on the assumption that most readers of this article will be familiar with their philosophies).
218. Citizen apathy is timeless. In order to get Athenian citizens to take part in
government decisions, a messenger would swing the schoinion, a rope dipped in vermillion,
around gathering spots. Those with a red mark on their clothes either showed-up to
deliberate and vote, or were fined.
"They are gossiping in the market place, slipping hither and thither to avoid the
vermilioned rope." Aristophanes, The Acharnians, in THE COMPLETE GREEK DRAMA
VOLUME II (Whitney J. Oates & Eugene O'Neill, Jr. eds., 1938).
219. A key Athenian method of instilling virtue was a mandatory two year training
program in military and civic duties and responsibilities at the Ephebic College, which
opened in 335 B.C. The training wasn't required of all, just legitimately born males of pure
Athenian parentage between the ages of eighteen and twenty. Satisfactory completion was
required before men were allowed to take the Athenian oath of citizenship. RESPECTFULLY
QUOTED 22 (Suzy Platt 1992).
220. ARISTOTLE. THE POLITICS 29 (T.A. Sinclair trans., 1962).
221. "[A]nd he [Moses] spied an Egyptian smiting an Hebrew, one of his brethren.
And he looked this way and that way, and when he saw that there was no man, he slew the
Egyptian, and hid him in the sand." Exodus 2:11-12.
222. "And they utterly destroyed all that was in the city, both man and woman, young
and old, and ox, and sheep, and ass, with the edge of the sword." Joshua 6:21. The harlot
Ra'hab and her family were saved for hiding the reconnoitery Hebrew spies. Joshua 6:25.
223. 1 Macabee 2:4.
224. See generallv ROBERT GRAVES, NEW LAROUSSE ENCYCLOPEDIA OF MYTHOLOGY
(1959). The Greek gods were an immortal, dysfunctional family, forever getting entangled
with humans on one level or another. Sometimes gods took sides against other gods, as at
Troy. Other times humans suffered in one on one exchanges, as when Hercules spent a year
as a slave to Omphale, queen of Lydia, for stealing Pythia's tripod from Delphi. Ixion, the
king of the Lapithae was tricked by Zeus into making moves on his wife, Hera. As a result,
Ixion spent eternity tied to a fiery wheel that rolled him across the sky. And, of course,
there's Prometheus, who stole fire from the gods and gave it to humans. He was punished
by Zeus by being tied to a rock while a buzzard ate his liver. Id.
225. Judaism and Christianity teach different concepts of an afterlife. For much of the
Old Testament, the souls of the dead go to Sheol, a shadowy world of no return. See, e.g.,
Genesis 37:35. Later, there's mention of Gehenna, a burning hell where the souls of the evil
are sent to stiffer for eternity. See, e.g., Matthew 5:22.
226. BERMAN. supra note 9, at 29-30.
227. Id. at 31.
228. BERMAN, supra note 9, at 32.
229. Id. See id. at 33, 34.
230. For example: Obviously, Deistic theology and Christian theology are very different. But in eighteenth
century America, the Deist and Christian views of law and government were remarkably
similar. Deists strongly emphasized the law of nature and natural rights (which were
part of that law of nature), for they believed God had ordained them. Christian thinkers
also emphasized natural law and natural rights; one may find this emphasis in the effects
of the law of God written on men's hearts (Romans 2:14-15) and in the thinking of
Christian scholars like Augustine, Aquinas, Luther, Calvin, Montesquieu, Blackstone, Grotius, and many others. When Jefferson wrote in the Declaration of Independence
of the 'Laws of Nature and of Nature's God,' and that all men are 'endowed by their
Creator with certain unalienable Rights,' he used language and concepts with which
Christians and Dcisis could equally agree.
John Eidsmoe, The Jdeo-Christian Roots of the Constitution, in RESTORING THE
CONSTITUTION 1787-1987, 72 (H. Wayne House ed., 1987).
231. BERMAN..supra note 9, at 32.
232. Id. at 165-198. From the Last Judgment and Purgatory come the concepts of
listing specific penalties for breaking specific laws, and the idea that a lawbreaker can purge
himself of sin. Id.
234. Id. From the Sacrament of Penance developed the concept that a lawbreaker
could absolve himself and rejoin the community after punishment. Id. at 172-73.
235. Id. at 173-74. From St. Anselm's Doctrine of Atonement came the notion that
lawbreakers can't just be forgiven and walk away. Satisfaction, atonement for their sins,
must be exacted belorc torgiveness is granted.
236. RONALD M. DWORKIN, TAKING RIGHTS SERIOUSLY 227 (1978).
237. Id. at 271.
240. H.L.A. Hart. Between Utility and Rights, in THE IDEA OF FREEDOM: ESSAYS IN
HONOUR OF ISAIAH BERLIN 77 (A. Ryan ed., 1979).
241. DWORKIN, supra note 236.
242. Id. at 192-95.
243. Id. at 223-39.
244. BERMAN, supra note 9, at 33.
246. Id. at 166.
247. The Charlie Rose Show (PBS television broadcast, Dec. 29, 1994) (interview with
248. WILLIAM R. BENET, THE READER'S ENCYCLOPEDIA 694 (1965). Nietzsche spent
the last II years of his life, totally insane, in the care of his mother. Id. at 714.
249. SERGEANT YORK (Warner Bros. 1941) (Pastor Pile was portrayed. by Walter
Brennan; Gary Cooper was Sgt. York.).