THE KING OF AMERICA
March 18, 2012
HONORABLE RICHARD B. SANDERS
WASHINGTON STATE LIBERTARIAN CONVENTION
The title of my talk is “The King of America.” My thesis is the foundation of a free society is and must be the rule of law and that in present day American it is under attack. In effect we have one rule for the rulers and another for the ruled. Let us consider the historical basis for the rule of law, what it is, how it is under attack, and the consequences.
I served on the Supreme Court for over fifteen years. I have had the opportunity to read the biographies of some great jurists, not the least of whom was Supreme Court Justice Hugo Black. Immediately after his selection of law clerks, he would send them a copy of Edith Hamilton’s The Greek Way. I purchased a copy of the book to see what I was missing. Unlike Louis XIV, who said I am the State, or the late Mayor of Jersey City who said I am the law, the role of the judge is to apply previously established legal standards, not make them up as the go along.
We must credit the ancient Greeks with developing much of what we now call the Rule of Law.
The Rule of Law is comprised of three essential but interrelated elements: (1) supremacy; (2) equality; and (3) certainty. How these principles developed and are, or should be, applied today, is my topic.
Perhaps the best way to understand the Rule of Law is to understand what it is not. It is precisely the opposite of the Rule of Men. This the Greeks understood very well. Greek historian Herodotus wrote:
A tyrant disturbs ancient laws, violates women, kills men without trial.
The Greek Way, 106.
Tyrants cannot coexist with the Rule of Law. Herodotus recounts two examples to make his point. It seems that the ancient Greeks who lived around 500 B.C. were threatened by tyrants from the east. First among them was King Xerxes of Persia. He was the State; his word was the law.
Of course the ancient Greeks had a particular interest in King Xerxes because he had a particular interest in them. That is to say he liked Greece so much that he wanted to take it over and, in about 485 B.C., sent a his legions to do just that. On its way, his slave army would gather force in each Persian town through which it passed by conscripting all of the young men to swell its legions.
The story goes when passing through one such town a noble of Lydia entertained not only the King but his entire army with a sumptuous feast. After he had set this feast before the King and his army the nobleman requested one small favor in return, that is, he asked King Xerxes to spare only one of his five sons from the Greek campaign so that he could remain with his father. King Xerxes replied, "You make such a request? You who are my slave and bound to give me all that is yours, even to your wife?" At that point King Xerxes ordered the eldest son to be cut into two and placed on either side of the road where the army was to pass. Indeed there was a sense of equality in ancient Persia. No man had any legal rights against the King regardless of wealth; all were equally slaves.
This is not the Rule of Law, it is the rule of man. Nor is it the kind of equality which I advocate.
A second example concerns a nobleman who had previously enjoyed royal favor but then had lost it. He was invited to dine with the King. After he had feasted on the meat placed before him he was presented with a covered basket. Lifting the lid he saw the head, hands and feet of his only son. "Do you know now," the King asked pleasantly, "the kind of animal you have been eating?" The father had learned the lessons slaves must master, self-control. He answered with perfect composure, "I do know, indeed—and whatever the King is pleased to do pleases me."
As King Xerxes’ legions approached the Greek frontier, he sent forth an emissary to negotiate the terms of the seemingly inevitable Greek surrender. The emissary approached a group of Greeks to deliver King Xerxes’ surrender invitation. They replied:
You know perfectly what it is to be a slave. Freedom you have never tried, to know how sweet it is. If you had you would urge us to fight for it, not with our spears only, but even with hatchets.
The Greek Way, 107. So what is it that the Greeks were willing to fight for with spears and hatchets? I suggest to you that it was not freedom from want, but rather freedom from other men and that the alternative to rule by man is Rule by Law. So this is the first great principle of the Rule of Law, that is to say, it is the rule of general and unchanging legal principle, not the arbitrary rule of men who happen to enjoy power and influence by virtue of their place in the government. To put it another way the rule of law requires that the government, and every governmental official, act under the Rule of Law, not above it. And it is the duty of judges who believe in the Rule of Law to make sure that this principle is strictly maintained without exception.
This principle of the supremacy of law over government has been honored in the breach. It is a wonderful exception to the affairs of men. But we know for the most part Greece, Rome, and today most English-speaking people still honor it while most of the rest of the world does not.
The Rule of Law was honored at Runny-mead in 1215 when the King yielded to the barons as he promised to respect their legal rights and be bound by the law himself. He wrote this in the form of a contract which came to be known as the Magna Carta.
The Rule of Law was honored in the American Revolution when Tom Paine saw the British monarchy as still a threat to the Rule of Law. In Common Sense he wrote:
But where says some is the King of America? . . . [I]n America the Law is King for as in absolute governments, the king is law, so in free countries the law ought to be king; and there ought be no other. . . .
Thomas Paine, Common Sense 98 (Penguin Classics 1776).
It was honored in the Declaration of Independence when Jefferson, relying on John Locke, proclaimed man is possessed of certain god-given inalienable rights and government is created only to secure them.
It was honored by the constitution of 1787 which delegated only a narrow measure of power to the federal government. James Madison said this constitution needed no bill of rights—the whole constitution through a limited delegation of powers was itself a Bill of Rights.
It was honored in the Bill of Rights of 1791 when the limits of government authority were made doubly clear by express negative prohibition.
It was honored by John Marshall in Marbury v. Madison when he held the judiciary was not just a co-equal branch but the legitimate guardian of the Rule of Law—even to the extent of requiring the other branches of government to respect the legal rights of each citizen as secured by the Constitution, the Supreme Law of the land.
It is also plain to see those who founded our State Constitution were of the same mind. In article I, section 1 they said the purpose of government is to protect and maintain individual rights. Prominent in the writing was judge Theodore Stiles who was immediately elected as our first Supreme Court justice. Later he spoke to a bar association group:
Once it is conceded, as it is now, universally, that a statute may be declared void as unconstitutional, there is no denying the proposition of judicial supremacy. Whenever the legislature enacts a law, it thereby assumes and asserts that it is constitutional; and whenever the court declares the contrary, the judgment of the court prevails, and there is no power except that of the people in constitutional convention that can reverse it.
Why hesitate, then, on account of a theoretical equality which does not exist? A little courage exerted a good many years ago, and little less fear of consequences, would have saved us from the drift which has carried us so far from the ideal of our forefathers.
Address of Judge T.L. Stiles before Washington State Bar Association, "Legislative Encroachments Upon Private Right," reproduced in C.S. Reinhart, History of the Supreme Court of the Territory and State of Washington 47.
Don't you wish Justice Stiles were sitting on our court today?
If the court must live by and under the law it is implicit the Rule of Law is to benefit the citizen—and that each citizen, however we define the term, is equal in his right to invoke it. Equality means that every individual human being, whatever his rank, whatever his status, whatever his wealth and power, is an equal in the eyes of the law in the sense that no man may step above it, and every man is under it. When Governor Gregoire, Paul Allen, Three Striker Paul Rivers, or a traffic infractor come to court—they come as equals. Each is due respect. This principle applies to judges as well. They must never yield to the temptation to direct the affairs of other men through the exercise of their personal preference but only through the application of established legal principles. By the same token, judges must be strong and willing to exercise their righteous power to preserve and protect the legal rights of every citizen, no matter how weak or unpopular. Restraint in the exercise of this power is not worthy of praise, it is dereliction of duty. It is license for the strong to vanquish to weak.
The American Declaration of Independence, drawn liberally from the thought of philosopher John Locke, emphasizes this principle of equality when it states:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness. And to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.
These words were understood, I believe, by their author Thomas Jefferson as well as other founding fathers, and later President Abraham Lincoln who had occasion to debate the topic on several occasions, to mean governments which depend upon the consent of the governed for their legitimacy implicitly respect the equality of each individual to give or withhold that consent. King Xerxes did not ask for the consent of the governed because he did not consider them his equal, but rather his slaves. There was no more need for him to seek the consent of those he governed than we need to seek the consent of our dogs and cats. They are not our equal. We are on a higher level. But we are all on the same level when it comes to pressing our rightful demand that our legal rights be protected under the rule of law.
The third and final attribute of the Rule of Law is certainty. If we are to conform our behavior to the law, we must know what the law is. If judges are to apply the law, they must know what it is. Preferably the law must be written down, it must be specific, it must be known, it must be clear. In the criminal law we have the rule of lenity to resolve all ambiguities against the government. This promotes certainty.
There is, however, a second aspect to certainty. That certainty enables us to plan for the future. We must be certain as to not only what the law is today but what it will be tomorrow. Let us recall that the first attribute of the tyrant, according to Herodotus, is "a tyrant disturbs ancient laws." Retroactive laws are the opposite of certainty. They are not guides to conduct, but legislative rewards or punishments.
How did the ancient Greeks dealt with this problem of certainty?
It seems that in about 500 B.C. the Greeks had a form of legislature which was comprised of the adult male citizens in the community. These citizens gathered together periodically and adopted various statutory laws by popular vote. There was, however, a developing concern that this legislative activism undermined traditional legal precepts which prompted several reforms to the process. One reform was the appointment of a committee of conservative or reactionary advocates who argued against the adoption of any new law by pointing out the old laws which it would upset or disturb. If the assembly, however, adopted the new law anyway the proponent of the law would be held personally responsible if someone could subsequently prove the new law offended a more ancient one. At that point the proponent would be tried, often fined, or sometime put to death. Thus, the ancient Greeks provided an incentive against legislative activism which seems to be lacking in the present day. The legislators of ancient Greece did not all raise their hands at once.
This was quite a different role than has been assumed by modern activist legislators who act at the expense of legal certainty. Thus I think our founders felt the need to hamstring the Legislature through separation of powers, checks and balances, and judicial supremacy.
So these are the principles of the rule of law which have come down to us with but few innovations:
1. Government must live under the law, not above it;
2. We are all equals under the law; and
3. The law is to be certain in form as well as continuity over time.
So how are we doing, and what are we doing to ensure and to vigorously enforce the Rule of Law?
An independent judiciary is essential to preserve the Rule of Law. The judiciary cannot serve as handmaidens to powerful interests and, at the same time, protect the rights of individual citizens who are threatened precisely because they are economically weak or politically unpopular.
To stand by the Rule of Law judges must be impartial. They must not presume the government is always right. They must not defer to the government. They must not restrain themselves from defending the legal rights of the individual. There is no virtue in such restraint. It is dereliction of judicial duty.
TOO BIG TO JAIL
Recall the first requirement of the Rule of Law is that the government must live under the law, not above it as King Xerxes did. Thomas Paine insisted “the true and only true basis of representative government” is equal application of law to all citizens: rich and poor, strong and weak, powerful and powerless, landlord and tenant. Benjamin Franklin warned absent the rule of law society would fracture into two tiers: the “favored” and the “oppressed” Of course the constitution was aimed at the government to make sure it lived under the rule of law, not above it.
But to the contrary, what has developed is as Glenn Greenwald put it in his book “With Liberty and Justice for Some,” is a system of elite immunity. While the powerless private citizen, the more powerless the better, is subjected to harsh legal consequences for seemingly minor misdeeds, we are told it is simply too disruptive and unjust to give the same medicine to elites. In a speech to the American Constitution Society in the year before he was appointed Attorney General Eric Halder stated crimes had been committed in the course of the Bush administration’s war on terror, but once he became attorney general no prosecutions were brought. And President Obama said we should look forward, not back. Of course the criminal law by its nature always looks back to secure a conviction for a crime previously committed, so in reality this is a forward looking statement of immunity for government and elite criminals.
Was this not the case when President Ford pardoned President Nixon: “The facts, as I seen them, are that a former President of the United States, instead of enjoying equal treatment with any other citizen accused of violating the law, would be cruelly and excessively penalized either in preserving the presumption of his innocence or in obtaining a speedy determination of his guilt in order to repay a legal debt to society.” Of course as we all know had Nixon been an indigent private citizen “equality” would demand he suffer the same consequences visited on any other citizen so stationed.
A decade later the precedent was applied to the Iran contra defendants. None of them spent a day in jail for violating the law. Under Secretary of State Elliot Abrams plead guilty to several counts but was pardoned by President George H. W. Bush. And much the same Caspar Weinburger was pardoned, and the list goes on.
When Vice President Dick Cheney's chief of staff Lewis “Scooter” Libby was convicted of four serious felonies including perjury and obstruction of justice, his sentence was commuted on the claim that serving even a single day in jail would be excessive. Vice President Cheney was livid that he didn't receive a full pardon as well.
But the immunity doesn't end with the government but extends to elites in the private sector. In early 2002 President Bush authorized a broadly based warrantless wiretapping program against tens of millions of Americans which was clear violation of criminal law, the Foreign Intelligence Surveillance Act (FISA). Section 1809 of FISA plainly states a violation is punishable by 5 years in prison and an $10,000 fine. Not only was the law not applied to the government actors but private companies who equally violated the law were given retroactive immunity by Congress. Before Senator Obama secured the nomination he railed against immunity, but after, he voted for it as did the overwhelming majority of senators from both parties. Recall President Nixon's proclamation that “When the president does it it is not illegal.” The telecoms were also given broad and sweeping retroactive immunity from civil liability as well—just as ACLU suits were getting to the win column. Quest declined to violate the law, but the rest went along. I do not have time to discuss corporate lawlessness and the de facto immunity attendant to the recent financial crisis.
While President Obama condemned criminal torture as a candidate, as President he preferred to look forward rather than back. Recall we prosecuted Japanese soldiers for waterboarding after WWII as a war crime and Americans for the same in Vietnam. But now there is a deafening silence.
More recently is the National Defense Authorization Act which allows the executive or the military to incarcerate citizens without charging any crime has been committed much less actually convicting them of something. Is not this clearly the rule of man, not the rule of law? And the attorney general claims the President may lawfully target Americans for assassination without any judicial process whatsoever. Recall Herodotus: “A tyrant...kills men without trial.” Elites simply cannot be held responsible for criminal misconduct if the attorney general will not prosecute.
Need I say more to prove the case of elite immunity—that the law doesn't apply to the government and elites? I could, but what about the powerless private citizen?
He is on the second tier of the rule of law. As Greenwald writes: “As our politicians increasingly claim the right to commit crimes with impunity, they simultaneously escalate the severity of punishments imposed on ordinary American who have broken even minor laws.”
The first day I ever heard argument in the Supreme Court a young black man named Paul Rivers argued a sentence of life without possibility of parole was unconstitutionally cruel punishment for stealing $300 from an espresso stand armed only with a finger in his pocket. This was not torture, not perjury, not obstruction of justice, not massive criminal violations of FISA. Nobody got hurt. But there was willingness to prosecute to seek the most severe penalty, unwillingness on the part of the court to protect him from cruel punishment, no friends in high places to pardon or commute his sentence. He was indigent. He's still in prison to this day and may forever be so.
This man is not alone. America has 5% of the world's population but 25% of all prisoners. We have turned into a prison state for the non-elites. We have the highest rate of incarceration of any county in the world: 756 people in prison for every 100,000. Europe has 95. And there are social consequences. The war on drugs has swept vast numbers of individuals, many of whom are black into the criminal justice system. 90% of those sentenced for drugs in Illinois are African American. In Chicago 55% of black males have a felony record. After serving the time, checking the box on the employment form disclosing their felony conviction almost assures them no employment is in the offing.
Perhaps if the laws were applied in similar fashion to the elites, rather than giving them immunity, reformation in the criminal justice system would be possible. But as it is, King Xerxes is the King of America, not the rule of law.