I did not imply that the alternative to this system is one in which an autocrat makes unbounded arbitrary decisions. I’d hate to live in such a regime. Drawing again on Hasnas, I believe a true polycentric customary, common-law system, which we find in English history and which gave us most of what we accept as basic law, satisfies the criteria for a true rule of law; i.e., since it is the product of human action but not human design, people are not subject to anyone’s will, as they are today. (I refer readers to Hasnas’s “The Politicization of Law,” which is linked in my article.)

Where exactly is this consent that Mr. White refers to and just how is the authority consented to limited? The Constitution I’ve read grants Congress nearly unlimited power to tax in order to promote the general welfare and the power to regulate commerce. The Antifederalists pointed this out with alarm in 1789. The Tenth Amendment doesn’t really protect the states; it was a radically watered down version of the real protection found in Article II of the Articles of Confederation. When someone tried to limit federal powers to those “expressly” delegated, Madison led the successful opposition.

“But would Mr. Richman argue against the idea that the Constitution was originally framed with the intent of limiting and dividing political power so as to restrain the natural tendency of men (and women) to sequester and usurp power for their own ends?”

Yes, I would in this way: The dominant framers were concerned there was too little, not too much, government under the first constitution, the Articles of Confederation. While they wanted divided government to some extent and abhorred arbitrary one-man rule, they granted virtually plenary power to the primary branch, Congress. That’s why the Antifederalists were so upset with the Constitutional Convention’s handiwork. I would take the Federalist Papers as some amount of salt. They were sales pitches to the people and ratifiers.

“Of course it is true that the Constitutional constraints upon government are only as good as the character of those occupying the seats of government.”

This sentence concedes my entire case. People say what the law means. But character is not the issue. It is wrong to suspect of low character anyone with a different interpretation of the Constitution. As a political document and the product of compromise, the Constitution is open to interpretation (Hamilton and Jefferson read it far differently), and the historical evidence is that broad, not narrow, powers were intended.

I don’t like this any more than any other advocate of freedom. But we have to face even the facts we don’t like.

As historian Merrill Jensen pointed out, the men who wrote the Declaration were different from the men who wrote the Constitution. I stand with the first group against the second.

I took the article as critical to the notion of “The Rule of Law,” which I believe to mean that our form of government is neither a monarchy, an oligarchy, an aristocracy nor a democracy, but a Constitutional Republic. A government representing the “will of the people” as expressed in the Constitution (and other founding documents). That is to say, there is a sharp contrast between governments so constructed that men (and women) occupying government seats have essentially divine authority and so grant rights to citizens at their whim, and those where authority rests essentially and in perpetuity with the people , who thus grant limited rights to their government agents. Thus the phrase: “This is a nation of laws not of men (and women),” which is to say that all people in that nation are “beneath the law” rather than over it.

If Mr. Richman is critical of this understanding of the phrase, then I still have a “bone to pick.” It may be that the original intent of the Commerce Clause in the Constitution was meant to be ambiguous, so that the federal government was permitted to regulate more than interstate commerce because the text permitted a loose interpretation. Therefore they used the more ambiguous language. But would Mr. Richman argue against the idea that the Constitution was originally framed with the intent of limiting and dividing political power so as to restrain the natural tendency of men (and women) to sequester and usurp power for their own ends? And if so, wouldn’t that intent constitute a “rule of law” over all government agents, whether Presidents, legislators or judges? Does it not speak for itself? Wasn’t it our founders’ intent (as expressed in the Federalist Papers) to so construct a Constitution that it could and would restrain the selfish ambition of the governing, and so protect the governed?

Of course it is true that the Constitutional constraints upon government are only as good as the character of those occupying the seats of government. If people judge character poorly and send scoundrels to Washington; if legislators do not impeach; if judges do not protect rights or judge with impartiality, then the Constitution can be of no good effect whatsoever. The founders understood that humans would be occupying the various seats of government, and believed that in each and every one of them would reside a heart susceptible to selfish ambitions and passions. I believe they sought to institutionalize just this aspect of human nature in the framework of government so as to set passion against passion, and self-interest against self-interest, and thus protect the governed from despotism. (I believe this was Madison’s theme in Federalist #10.)

This is what concerns me most about our current President, and his new Court appointee…

Mr. White has missed my point. First, I am not a postmodernist or a relativist. I am an Aristotelian who believes in reason and objective moral standards. I also believe we are able to communicate with one another. Language must be interpreted, but there are better and worse interpretations. I simply recognize that, existentially, written laws issued by legislatures must and will be interpreted by interested parties and representatives of the political system. Laws will not speak for themselves, and the system cannot be put on autopilot. Who could possibly disagree? A common-law system based on emergent customary law is less susceptible to these problems, as Hasnas discusses in the second paper cited.

Second, the Commerce Clause example is mine not Hasnas’s. He does not mention it. I drew it from William Winslow Crosskey’s Politics and the Constitution in the History of the United States. One need not be a relativist or postmodernist to believe that reading “commerce among the several states” as “interstate commerce” is an interpretation–and a poor one given the historical evidence.

I would argue that Mr. Richman even evinces notions of this objectivity in this essay. For example, when he states that “people must decide what [Constitutions and laws] mean. This is by nature a controversial truth from which there is no escape,” he cannot be arguing simply that human beings – by the very act of reading with comprehension – cannot help but determine meaning, for if so he is conflating comprehension with authorship. To conflate these concepts would leave us with no means of comprehending the meaning of Richman’s own essay. Thus his affirmation that “facts are facts and its better to face them” can mean “facts are not facts and cannot be faced objectively in isolation of the observer’s cultural and historical milieu.” The notion that language is culturally determined may be true to some extent, but the meaning of the text when examined in its context must have objective meaning. The word “liberal” has changed (if not reversed) its meaning in the past 40 years or so, but this does not mean that we should anachronistically interpret earlier texts with modern definitions as we please. To defend such a practice is to defend agendas for their own sakes regardless of where they lead.

Instead, it seems that Mr. Richman is arguing for the correctness or necessity of judges choosing the meaning of a text.

Turning to Mr. Richman’s essay, I find it interesting – if not somewhat self-refuting – that he quotes John Hasnas, Thomas Paine and Bruno Leoni in defense of (or in demonstration of) his thesis. The argument advanced from these authors (if I understand Richman correctly) is that only judges, with their “culturally shared values of the judiciary” provide us with any notion of stability in the meaning of “the law.” … Legal conclusions are always determined by the normative assumptions of the decisionmaker.” Without the short term stability of these “shared values” (itself a dubious term given the many split decisions and reversals within the judiciary) we would have anarchy. I say “self-refuting” because to assert that the meaning of a text [Law] is solely determined by the reader, i.e. “what conclusion one finds will be determined by what conclusion one looks for” is to prima facie undermine your own argument.

What then of the “facts” Mr. Richman presents (ala Hasnas), such as the First Amendment, or the Commerce Clause? Regarding the Commerce Clause, Mr. Richman’s (quoting Hasnas) argues that “the framers were perfectly capable of writing “between citizens of different states” when they wanted to and as they did in Article III on the powers of the judiciary” (rather than ‘among the several states’ as they did in the Commerce Clause). But why would this construction – or any other – be superior to the given text if the interpretation will rest entirely with the interpreter? And regarding the First Amendment, it seems to me that the confusion over its meanings has arisen within one or two generations – perhaps beginning with Oliver Wendell Holmes. Up until modern times, the courts struck down laws that invaded upon the free exercise of religion and speech. Now they enforce restrictions on such practices. Can a text mean both “A” and “not-A?” It seems to me that Mr. Richman here is basing his argument against objectivity in texts, upon notions of objectively better or worse constructions of a text.

I say, there is another – and better – explanation for the liberty the Courts take with the text of the Constitution than the postmodern argument: namely that there is a consistent, persistent agenda in the human heart to sequester power, which will be found everywhere power is to be had. Benjamin Fletcher Wright wrote of this in his Introduction to the Federalist Papers (Oxford U., London, 1961): The distinctive and extremely significant fact about the conception of the character and behavior of man is that it is one of the foundations, sometimes the entire foundation, upon which the authors of the [Federalist Papers] erect their defense of the Constitution. If we premise a different set of human motives and a different pattern of behavior, their defense of the Constitution has little validity…. Men are not to be trusted with power, because they are selfish, passionate, full of whims, caprices, and prejudices. Men are not fully rational, calm, or dispassionate. Moreover, the nature of man is a constant; it has had these characteristics throughout recorded history. To assume that it will alter for the better would be a betrayal of generations unborn.”

Fortuitously, today’s Patriot Post (http://patriotpost.us/) presents a relevant quote from Thomas Jefferson: “”The germ of dissolution of our federal government is in the constitution of the federal judiciary; an irresponsible body, (for impeachment is scarcely a scare-crow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one.”

There is much to agree with in Mr. Richman’s essay. I fully agree that the men and women of the Bench bring with them preconceived notions and moral sentiments from which they interpret the Constitution and laws. But beyond this brut fact is the assertion (I think it’s true) that people have within them better or worse moral compasses. And such an assertion implies an objective law from which to judge moral character. It is now and will always be true for example, that freedom is a better human condition than tyranny. This is a moral law. Violate its principles and corollaries along the way, and you end up in a worse place. Only by studying the moral lessons of human history can we hope to avoid this end. Human history, I say, contextually and objectively interpreted.

Dennis R. White
Yorba Linda, CA