ORIGINAL CONSENT

TACOMA-PIERCE COUNTY BAR ASSOC.

FEBRUARY 13, 1997

THE HONORABLE RICHARD B. SANDERS

JUSTICE, WASHINGTON SUPREME COURT

We gather to honor Lincoln, but during his life he was a controversial figure not always so honored. He spoke out and spoke up—and he had his critics because of it. In anticipation of his presidency, seven states had already left the Union before his inauguration. Some called his ideas on equality and the consent of the governed radical and revolutionary. However, Lincoln thought these ideas were embedded in the cornerstone of the Republic, the Declaration of Independence, and wasn’t afraid to say so.

Historians believe Lincoln clinched the Republican nomination for president in 1860 with his speech given at Cooper Union college in New York on February 27 of that year. During that speech he made a rhetorical response to his Southern critics who claimed they were the true conservatives and Lincoln was a radical. He said: "But you say you are conservative—eminently conservative—while we are revolutionary, destructive, or something of the sort. What is conservatism? It is not adherence to the old and tried, against the new and untried? We stick to and contend for the identical old policy on the point in controversy which was adopted by our fathers who framed the Government under which we live . . . ."

So that is how I put it to you tonight—let us reexamine Lincoln’s ideas of equality and original consent and, by that standard, judge what is happening in today’s courts and Temples of Justice and consider whether we have gained in progress since Lincoln’s death—or nearly lost what he "contended for."

Much has changed since Lincoln’s birth and death but if he were here tonight I think he would say, in that homey wisdom of his, the important things remain the same. Human nature has not changed. Right and wrong has not changed. Ideals of liberty and equality are just as important today as any time in all of recorded history. And eternal vigilance is still their price.

One-hundred eighty-eight years ago yesterday Abraham Lincoln was born of Tom and Nancy Lincoln in the Kentucky backwoods. Tom was a frontiersman who according to Abe could at most "bunglingly sign his own name." Some say Nancy could read and write, but this is doubtful.

On February 12, 1809 the day of Lincoln’s birth, Thomas Jefferson was completing his second term as president, the Declaration of Independence was 33 years old, the Constitution was 22, and the Bill of Rights was just a teenager. It must have been a wonderful time. The excitement of the ideas expressed in the Declaration of Independence was still fresh. So was the memory that men had literally pledged their lives, fortunes, and sacred honor to win the great and revolutionary victory.

When Abe was 7 his family moved across the Ohio to settle in Indiana. That winter was so cold it was known as "Eighteen hundred and froze to death." Tom built a cabin for the family with his own hands.

Shortly after all moved in, Nancy took sick after nursing relatives. She called Abe and his older sister Sarah to her side and made each of them promise to be good children and be kind to one another. And then she died. She was buried beside the deer run in the forest and the family moved on.

Life was not easy in those days. Independence and self reliance were not options, they were necessities. A man needed and used his freedom to do for himself and his family. If he didn’t the government wouldn’t either. In the words of William O. Douglas:

Lincoln did not grow up in a welfare state and I submit he was a better man because of it.

As Abe grew he spent long hours teaching himself arithmetic and reading after he completed his chores in the field and forest. By the time he studied for the law he probably only had a year of formal education. He read the Bible, Aesop’s fables, Robinson Crusoe and everything else he could get his hands on. He read about George Washington. He read John Stuart Mill’s essay On Liberty. Along the way he won a rail-splitting contest. At nineteen he took a flat boat down the Mississippi to New Orleans. Perhaps that is when he first saw slaves.

American ideals of self sufficiency and liberty were not lost on Lincoln. For a man like him the idea of one man being a slave to another must have been almost inconceivable. But Lincoln was also a very practical man—as lawyers, at least successful ones, must be. He saw slavery as part of the landscape—but as a part that really didn’t fit.

Lincoln recognized that slavery, like it or not, was firmly part of the legal order of the day. One simply could not make a plausible constitutional argument that there was anything unconstitutional about it. Nevertheless Lincoln thought it was contrary to the first principles of the American nation. He drew those first principles from the Declaration of Independence. The principle which Lincoln found in the Declaration—but not in the Constitution—was equality.

Let us recall the word equality never appears in the Constitution of 1787 and was not added until ratification of the 14th Amendment after Lincoln’s death. The Declaration of Independence however begins precisely on that note:

Lincoln often quoted these words from the Declaration to support his argument that the extension of slavery to the new territories was inconsistent with the original American purpose. But he used the term "equality" in a sense quite different than it is sometimes used today.

He replied to Senator Stephen Douglas’ claim that Kansas and Nebraska should be allowed to choose for themselves whether they would be free or slave states by quoting the Declaration and stating that for governments to derive their just powers from the consent of the governed one must be first free to give or withhold that consent. Such, he said, was inconsistent with slavery because the master governs the slave without the slave’s consent and no slave state can be based on principles of consent. Lincoln argued equality meant all are governed by the same set of rules—not one set for the master and another for the slave. "Allow all the governed an equal voice in the government, and that, and that only is self government," he said. (Peoria speech of October 16, 1854.)

One of the great constitutional events of his time was the decision by Chief Justice Taney in the Dred Scott case which held slaves were not "persons" entitled to constitutional protection but rather items of property which could be transported across free states without losing their character as slaves. Taney argued that the Negro was not within the intention of the framers because the Declaration of Independence did not put him on an equal par with the white and cited the Declaration numerous times through the opinion.

Lincoln replied:

Lincoln made the point again and again that the equality of which he spoke was a civil equality between men under the rule of law—not a sameness of one man to another.

Lincoln held the reason equality was important to the slave debate was equality by its nature requires each person to give his consent to be governed by any other man. If he does not consent, he who would be master lacks any legitimate basis to assert a claim of superiority from a mere position of equality. However rejection of the equality principle removed any necessity for consent. We don’t ask cattle to consent—but if men are created equal, the consent of one man is a necessary prerequisite for his governance by another.

In the time of Lincoln, as today, that is a critical distinction. Lincoln said it was the "central idea" of "the equality of men" which was the driving force of America. And implicit in that equality was the principle that one man could not dominate another through governmental control absent consent because we are all equally members of the human race. Just before he died Jefferson restated the point:

No man is good enough to govern another man without the consent of the other because consent is the reciprocal of equality. Those who live under the rule law in a society of equals therefore must consent to its making, and those who make the law are equally subject to its application, without exception. Equality, consent, and legitimate government therefore go together in the land of the equal.

In a society of equals there is simply no room for those who under color of law, but without the legitimate authority of the law, wrongfully impose themselves as superiors upon those who are really their equals. This is just another form of slavery—it differs in degree, but not in kind. It is domination without consent. It is one man riding on the back of another by the force of his power, not by the consent of his equal. As Lincoln said: "no man is good enough to govern another man, without the other’s consent." Peoria speech October 16, 1854.

Yes, Lincoln freed the slaves, but that was not enough to secure their freedom. The reconstruction Congress recognized this when it gave the citizens a powerful tool for equality in the 14th Amendment and the anti-Ku Klux Klan act which followed. But the problem has not been solved nor will ever be put to rest as long as human nature persists.

The framers of our state constitution were no strangers to these ideas. History of the time reveals they were in fundamental agreement with Lincoln’s understanding of equality and attempted to embody that in the first Article of the Washington Constitution which summed it all up in one triumphant sentence:

Once again we hear the claim political power originates in the people, not the state. Once again we hear the principle that governments have no power but what the people give them by consent, and presumably that consent is limited and defined by the Constitution itself. Once again, and very overtly this time, we hear the directive that it is the ultimate purpose and essential function of government to protect and maintain individual rights. Conversely, by necessary implication, it must be an act of constitutional outrage for the government to violate the very rights it was created to secure.

What are these "individual rights" about which the framers spoke? Life, liberty and property are summarized just that way in Article I, Section 3 as they were similarly enumerated in the Declaration of Independence, the Fifth Amendment, the Fourteenth Amendment and by John Locke.

Equality is mentioned in Article I, Section 12 which forbids a special grant of privilege or immunity to any citizen or class of citizens not equally available to all. There is nothing in this language which exempts those who act under color of law from the proscription against special favoritism; much less is there anything which allows government actors to claim an immunity from the application of the same laws as their fellow citizens. And I can find no support for such a claim of special privilege or immunity elsewhere in the text.

The struggle for equality continues today in the minds of men, and in the Temple of Justice. Article 4 of our constitution entrusts to the courts the judicial power without limitation. The courts are the constitutional guardians of equality. If the courts do not insist that those who govern act within the limitations of constitutional consent—that which we call the rule of law—no one else will have the power or will to do it for them. But we cannot be satisfied with the job our courts have done and I am not satisfied with the job I have done in my short tenure.

All too often the courts have deliberately turned a deaf ear to the cries of those abused under the color of law by those acting behind a badge of authority yet without legitimate legal justification. Too often we have turned a blind eye to legislative and executive encroachments, sometimes popular encroachments imposed by the people themselves through the initiative process, which incrementally exceed the limits of legitimate governmental power as defined and delegated by original consent. Thomas Jefferson said "An elective despotism was not the government we fought for." Notes on Virginia.

Ah, we say mistakes can happen and judges are only human. This is so true—but I am not talking about simple mistakes. Nor am I talking about individuals or personalities. I am speaking of an obvious pattern of precedent spanning the better part of this century which has been allowed to accumulate without formal notice, must less serious challenge. Nevertheless its presence is so unmistakable that it is as if it were by design. This precedent subverts the constitution as effectively as any alien force in the form of rules of construction and presumptions. These essentially say the government is presumed to be right when it is really wrong; that it is strong, when by the constitutional text it is clearly weak; that no person’s right has been violated when in truth his right has been taken; that an unconstitutional statute is nevertheless enforced unless proven to be so beyond a reasonable doubt; or that some alleged preposterous fact exists by virtue of legislative declaration or judicial whimsy when any school child can tell you the emperor has no clothes.

To paraphrase Justice Utter, the presumption of legitimate use of state power is precisely the opposite of that which is necessary and proper in a free society where the government is based on the limited consent of equals. In his law review article entitled "Perspectives on State Constitutions," Justice Utter commented:

Referring to the beyond-the-reasonable-doubt standard required to prove constitutional invalidity, Justice Utter stated such a standard was originally designed to apply to facts, not law. "It was designed to prevent innocent people from being convicted of serious crimes. When applied to the legal questions of constitutional validity, however, this rigorous standard has no such noble goal. Rather, it serves to undercut the fundamental rights of Washington citizens, and therefore should be discarded." To put it another way, rules of construction and presumptions which make it difficult if not impossible for the ordinary citizen to prove his constitutional right has been violated invite the master to dominate servant without the servant’s consent while paralyzing the court’s ability to protect the principle that all men are created equal under the law and that government not only derives its just powers from the consent of the governed but must live within the strict boundaries of that consent.

I ask you could we not better serve the purpose of equality and original consent if we were to demand of our government the virtue of Caesar’s wife rather than that of O.J. Simpson. Let us recall that Simpson was acquitted of a double aggravated murder based upon the beyond-a-reasonable-doubt standard although by a simple preponderance, a jury says, he did the deed.

We suffer Mr. Simpson’s liberty as the price of our mutual freedom; however, the price of allowing the master to exploit the servant without the servant’s consent,—that price is freedom itself. And that price is too high.

Judges should be impartial but preference for the government over the citizen is just the opposite of impartiality. Moreover in the words of Justice Douglas, the constitution is not neutral. The Court Years, p. 8. The law tells the answer and dictates the result. The law of liberty and equality is the law of our constitution, of our land, and must be law in the courtroom as well.

In the words of Lincoln: