A Law for Governments
JANUARY 01, 1970 by CLARENCE B. CARSON
Dr. Carson, a frequent contributor to THE FREEMAN, is Professor of History at Grove City College in Pennsylvania.
According to the lore of our time, business monopolies are highly dangerous—so dangerous in their threat to the commonweal that they must either be prevented or regulated and controlled. For many years, attention has been focused on the supposed untoward character of business activities and of how the innocent may fall victim to them. This emphasis has drawn men’s eyes and attention away from both the source of harmful business monopoly and the noncommercial monopoly which poses the greatest threat of all to the peace and well-being of peoples. That is the monopoly which government has—the monopoly of the use of force in a given jurisdiction. All other monopolies pale before this one in the potentialities for destructiveness, and it is this power alone which can give to business activities potentialities for continued and concerted damage.
Yet, government is not only a great potential danger but also a necessity. Unless somebody has a monopoly of the use of force in a given jurisdiction, there is likely to be more or less continuous warfare as groups contend for control. That there be a monopoly within a jurisdiction is necessary for peace, and government is also charged with keeping the peace—with preventing aggression from abroad, with putting down domestic insurrection, with inhibiting assault, deception, and with settling disputes which may arise. In short, government is not only potentially dangerous but also potentially highly beneficial. In any case, it is necessary.
The dangers of government are manifold: that it will be despotic, arbitrary, tyrannical, confiscatory, dictatorial, weak and ineffective, strong and overbearing, aggressive, destructive of life and property, playing favorites, and so on. Nor is there an abuse of which those who govern are capable that has not many times been practiced. Rulers have from time immemorial perpetrated aggressive war, deceived their own and other peoples, raped and ravished, stolen and confiscated, put the innocent to death, and allowed the guilty to run loose and wreak havoc. To say that governments have also dispensed justice and maintained the peace is equally true, but it should not mislead as to the inherent dangers of such an instrument.
The existence of government poses a grave and recurring danger. It poses a problem, too, which may be stated in various ways. How shall this force of government be contained and restrained? How shall those who govern—for after all, the danger that government poses arises from those who govern—be kept from acting arbitrarily and despotically? How shall those who make, administer, and interpret the laws themselves be brought under the law? This last is, in essence, the question as it should ever be posed. It should be clear that there is no easy answer to it, nor is it likely that the problem will be finally solved.
Government operates by the exercise of power. To do its job effectively, it must have a monopoly of the use of force in a jurisdiction. Yet such a monopoly makes it most difficult to bring government under the law. There must first be a law for governments. Then, devices must be found for inducing those who govern to abide by the law.
Natural Law and Constitutions
In modern (post Renaissance) Western civilization two intertwined devices have been employed to bring those who govern under the law—to establish a law for governments. The first—and most fundamental—of these is the natural law theory. The second is the device of having a written constitution.
These methods did not arise in a vacuum. Instead, there were compelling circumstances for coming up with some means of bringing rulers under the law. The major political trend in many European countries was toward absolute monarchy in the sixteenth and seventeenth centuries. This meant, in theory, that all power issued from the monarch and might be claimed by him. Also, it tended to mean that there was nobody to hold the monarch in check, or make him subject to the law. The inevitable result was rule at the whim of the monarch—arbitrary and despotic government. Not everywhere and at all times was it equally the case, but it was certainly the dominant trend.
The natural law theory provided the foundation, in these circumstances, for bringing government under the rule of law, for delimiting the powers of the monarch most particularly. Here was a law above and beyond the power of monarchs to alter and to which they, like other men, were subject. Natural law theory was not, of course, new to the sixteenth and seventeenth centuries. It had been effectively formulated by the Roman Stoics, and following that formulation became a part of the heritage of Western civilization. It received new impetus not only from the need to find some means for circumscribing the powers of monarchs but also from Renaissance humanism and the scientific developments of the seventeenth century.
Some of the early spokesmen for natural law theory on the continent of Europe were Hugo Grotius (1583-1645), Samuel Pufendorf (1632-1694), and Jean Bodin (1530-1596); in England, Richard Hooker (1554-1600), James Harrington (1611-1677), and Algernon Sidney (1622-1683). From these, and others, it entered a general stream of thought to be espoused by such continental European, English, and American thinkers as Burlamaqui, Vattel, Beccarai, Locke, Blackstone, Montesquieu, John Wise, Jonathan Mayhew, and Thomas Jefferson, until it was the dominant mode of thought in the eighteenth century.
A Law Antecedent to Man
Basically, the modern natural law theory held that there is a law antecedent to man, society, and government, that this law is from God, that it is a law which must be observed if each of these is to reach its true form and fulfillment. It is discovered by attending to the nature of things, and when one attends rightly to the nature of things, he is using right reason. When man’s nature and the nature of the universe are viewed in this fashion, it is found that man has certain natural rights: namely, the right to life, to the use of one’s faculties, and to the fruits of one’s labors. Society is natural to man—man is a social being—for within society he can make those exchanges which satisfy and complete him. In like manner, government is necessary for man, for it enables him to live in peace, to have fruitful relations with others, and keep what is his.
The great thrust of modern natural law thought was to limit government to its proper sphere. One historian of natural law says, "Now the primary practical object pursued by the theorists of Natural Law was the delimitation of an area within which objective Right should be withdrawn from the caprice of the legislator, and subjective Right should escape the attacks of the State’s authority…. It was thus with a new and unprecedented force that the theory of Natural Law was able to enter the domain of public law…."¹
That the natural law set bounds to the actions of government was the import of what many of the theorists had to say. Hugo Grotius declared that "it is beyond controversy among all good men that if the persons in authority command anything contrary to Natural Law or the divine precepts, it is not to be done…. First, those rulers who are subject to the people…, if they transgress against the laws of the State, may not only be resisted, but put to death…."² Burlamaqui maintained that "if the abuse of the legislative power proceeds to excess, and to the subversion of the fundamental principles of the laws of nature, and of the duties which it enjoins, it is certain that under such circumstances, the subjects are by the laws of God not only authorized, but even obliged to refuse obedience to all laws of this kind."³ John Locke particularized "the bounds which the trust that is put in them by the society, and the law of God and nature have set to the legislative power of every commonwealth, in all forms of government."4
Natural law theory would not, of itself, bring governments under the law. Natural law has presumably been in existence since the beginning of time. Nor have great thinkers from time to time been wanting in their understanding of its precepts. But as a theory, the natural law does not and has not prevented arbitrary and despotic government. The second step in bringing under the law those who govern was to specify the laws for those who rule in a particular state—to have a constitution.
The British Model
The British pointed the way to constitutional government. Indeed, the British had a long history of attempting to subject their government to the law. Most of this effort was devoted to making the king rule by and observe the law. The question was usually phrased in this way: Is the king above the law? Sir John Fortescue, the leading legal mind of fifteenth century England, maintained that the king was not above the law. But Fortescue was not taking a novel position in English history, though he may have taken it more pointedly than had his predecessors. It had been made dramatically clear at least two centuries before that the king should not be considered above the law. The main thrust of the Magna Carta which King John signed in 1215 was his acknowledgment that he must observe the established legal procedures in his acts.
The matter came to a head once more in the seventeenth century, and more famous documents were added to the English constitution. The Stuart kings claimed absolute powers, and their subjects took action to restrain them. Charles I subscribed to the Petition of Right which spelled out new limitations on his power. The Bill of Rights, proclaimed in the latter part of the seventeenth century, settled the matter definitively. The king was brought decisively under the law.
It was never made so clear, by documents, however, that the other branches of government were under the law. The great model of a constitution which set forth a thoroughgoing law for government is the United States Constitution, supplemented by the constitutions of the states. Here, for the first time effectively, a law for all branches of government was committed to paper. That the United States Constitution is a law for the government it authorizes must not be generally understood. Yet that is what it is. Every one of the original passages deals with the powers of government, with the authority of those who govern, or with how they shall be chosen, for how long they shall serve, what their qualifications shall be, and how the Constitution shall be ratified and amended. The Constitution is not a law for the citizenry, except in respect to how they shall be governed and what political procedures shall be followed. It is a fundamental law for government.
Limitations upon Government
This character of the Constitution may be clearly shown by quoting a few passages from it. Article I, section 1, reads: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." The remainder of that portion deals with qualifications of legislators, the conduct of their business, and the extent of the legislative authority. Article II, section 1, reads: "The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows…." There follows a description of the mode of election, the qualifications for the office, how the President may be replaced, and a listing of his powers and duties. Article III, section 1, begins: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." This, too, is followed by an account of the authority and jurisdiction of the Federal courts.
Article IV as well as parts of Article I deal with prescriptions for and limitations on state governments. For example, Article IV, section 1, says: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." Article I, section 10, contains such points as these: "No State shall enter into any Treaty…; coin Money; emit Bills of Credit…; pass any… Law impairing the Obligation of Contracts…." Article V sets forth procedures for amendment.
Article VI proclaims all earlier debts of the United States valid, declares that all laws and treaties made under the authorization of the Constitution the supreme law of the land, and prescribes the oath binding upon all officers of the United States and of the several states. Article VII simply prescribes the method and how many states shall be necessary for ratification of the Constitution.
It is the fact that the Constitution is a law for governments that makes it so important that its provisions be rigorously observed. It is important, of course, that private individuals abide by the law. It is even more important that those who govern abide by the law, for when they act lawlessly they do so with the full force of government.
Separation of Powers
Drawing up a law for governments was one thing; getting it observed was something else. The answer to monopolistic abuses in private industry is competition. If a company does not serve well, or its products are exorbitantly priced, in a free market others may enter the field and subject that company to the discipline of the marketplace. There is not so ready a solution to the problem posed by a government’s monopoly of the use of force. Direct competition among governments is a thing to be avoided rather than sought, for direct competition in the use of force is warfare.
Yet, it is possible to use the competition principle in a modified form without inviting perpetual warfare. One way that this has been done is by the separation of powers within the government so that those who govern may check and restrain one another. The famous formulation of this doctrine was made by Montesquieu in The Spirit of the Laws. He reasoned in this fashion:
When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
Again, there is no liberty if the power of judging be not separated from the legislative and executive powers. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.5
Looking at it in another way, the separation of powers principle may be seen as a means of inhibiting tyrannical power by bringing those who govern under the law. Whereas, if the powers are joined in a single body, there would be nobody to see that it observed the law.
The British government was thought by Montesquieu to embody the separation-of-powers principle in the eighteenth century. So it did, for the monarch was reduced mainly to the execution of the laws, Parliament enacted the laws, and there was a more or less independent judiciary. Americans accepted Montesquieu’s formulation as an article of belief and separated the powers of government both in the United States Constitution and in those of the states.
Americans went further than this in retaining as much of the competitive principle as practicable in order to keep government under the law. They set up a federal system of government, one in which the powers of government were dispersed among the general and the state governments. Each of these governments was to have a jurisdiction over the citizenry under it. This made it so that a grasp for power by those in one government would tend to endanger the powers of those in the other. They might be expected in their own interest to resist expansions of power and hence restrain each other.
Checks and Balances
An even more subtle form of competition is inherent in the republican form of government established in the United States. Those who govern derive their tenure from the consent of the people, either directly or indirectly. That government be under the law is a condition of the liberty of the people. That is, an increase in the powers of government will be at the expense of the people, or some portion of them. Hence, the electorate may be jealous of their own prerogatives and resist the extension of government power. At the least, they may turn out of power those politicians who have displeased them when they come up for election.
Under the influence of Britain and the United States other peoples turned with a will to the task of establishing a law for their governments in the nineteenth century. Constitutions were drawn up, elective legislatures set up or buttressed, powers balanced and checked, and arbitrariness restrained. Limited governments provided for more liberty than most peoples had ever known. In many ways, this movement toward constitutional government reached its peak—and its virtual culmination—in the wake of World War I when the old autocratic governments were overturned, the territories of empires carved up into nation-states, and constitutions adopted which were supposed to provide extensive liberties for the inhabitants.
Twentieth Century Reformers Revert Toward Tyranny
But a counter tendency had already set in, one which would eventuate in new tyrannies, arbitrary governments, dictatorships, and oppression. The first peoples to fall under the new despotism were the Russians, with the establishment of the Soviet Union in the early 1920′s. They were followed by the Italians, Germans, and many others in various degree. Behind much of this thrust was not only the age-old desire of those who govern to be unlimited in their exercise of power but also a rationale for the concentration and exercise of power. That rationale can be called, generically, socialism, though it is known also as communism, fascism, collectivism, syndicalism, and "liberalism." The animating idea behind it is the determination to use government power to make over man and society according to an ideological vision of what they should be. The effort to accomplish this is made by massive applications of government power. This power is applied in order to attempt to manage and control the economy, redistribute the wealth of the land, provide favors for the indigent, empower certain groups, disable certain others, and bring the whole under the sway of government. In some lands, this has been done directly, brutally, and dictatorially. In others, such as the United States, the effort has been made much more subtly, with a minimum of the show of force, and in the framework of other forms of government. In all cases, however, the effort has been made by unloosing those who govern and restricting and restraining the general populace.
That tyrannies have made their appearance in some places in our century is well known. That some peoples have fallen under the yoke of oppression is rather generally recognized. All too often, however, this has been attributed to certain evil men—as, for example, Adolf Hitler and Joseph Stalin—and not to the more basic development. When this latter character is recognized, it should be clear that the task is to bring governments under the law. It is, or should be, the pressing issue of our times. There has been much talk in recent years in the United States of the need to restore law and order. Undoubtedly, there is such a need. It is important that citizens obey the law that order may prevail. But if it is only the inhabitants who obey the law, their obedience will quite often simply aid the establishment of tyranny. Those who govern must also obey the law, the law for governments. All governments are subject to law—the natural law. Beyond that, they may have their particular constitutions which establish the laws for those who govern. Rigorous adherence to these is necessary for government to be limited so that the citizenry may be free.
¹ Otto Gierke, Natural Law and the Theory of Society, Ernest Barker, trans. (Boston: Beacon Press, 1957), p. 39.
2 Wilson 0. Clough, ed., Intellectual Origins of American National Thought (New York: Corinth Books, 1961), pp. 174-75.
³ Ibid., p. 194.
4 Ibid., p. 159.
5 Ibid., p. 186.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people.
United States Constitution, Tenth Amendment