PRIVILEGES AND IMMUNITIES

Rights Imply Remedies

Copyright © by Barnabas D. Johnson

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Part One

According to its Preamble, the Constitution of the United States seeks to "secure the Blessings of Liberty to ourselves and our Posterity."

The Constitution does not "create" these Blessings; rather, it "secures" them, first, by reinforcing a pre-existing "law of the constitution" based on evolving standards such as Due Process of Law (a government must be fundamentally rational and fair), and second, by formally establishing, empowering, and limiting organs of "government by the governed" so as to allow effective governance while forbidding oppressive governance. These Blessings of Liberty, both enumerated and unenumerated, are variously named freedoms, rights, and "Privileges and Immunities (Article IV, Sec. 2) or "privileges or immunities" (Fourteenth Amendment XIV, Sec. 1).

On best authority, as discussed later, and ignoring those and/or differences (they appear to be irrelevant), we shall here talk of privileges and immunities as being among the Blessings of Liberty the Constitution secures. No person may be deprived of those Blessings without Due Process of Law — a fundamentally rational law applied in a fundamentally fair way. For that reason, Due Process of Law, the bulwark of Government under Law, is the greatest Blessing of all.

The enumerated liberties, freedoms, rights, privileges, and immunities are mutually-defining aspects of Due Process of Law, and should not be overly-distinguished. They compose a "perichoresis" of mutually-defining Ideas, a much-of-a-muchness in which rights imply remedies — including remedies articulated in terms of privileges and immunities.

Whether the accused has a "right" to remain silent, or enjoys a "privilege" against self-incrimination, or is "immune" from prosecution based on improperly-obtained confessions, all these Blessings have coevolved — and must continue to coevolve — not as abstract concepts but as real-world legal remedies asserted within the context of concrete "cases and controversies" that must be resolved by courts or court-like bodies which, ultimately, must be subject to supervision by the highest judicial authority.

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Two preliminary points need emphasis here. First, "court-stripping" legislation that ousts the Judicial Branch from such supervision, and thereby relieves it of its checks-and-balances obligations towards the Legislative Branch and the Executive Branch, is highly problematic; absent a compelling justification for such court-stripping, it should be resisted at the highest levels and should be declared unconstitutional by the Supreme Court. Second, anything that has a history, such as that most sublime concept of the English language, Due Process of Law, must be understood in light of its history and the history of all that affected its development.

Constitutional liberties in the United States, such as the right not to be deprived of life, liberty, property, or other fundamentals of constitutional governance without Due Process of Law, are rooted in the pragmatic idealism of England's common-law tradition; this tradition originated in, and has developed in dialectical relationship with, that larger Western Legal Tradition which originated in the medieval European synthesis of Athens, Rome, and Jerusalem (see below); and this synthesis originated in the ancient Greek genius for systematic thought, which (among its many discoveries and inventions) developed the most pragmatic ideal of all: equal justice under law, isonomia, the parent of demokratia.

According to this centuries-long blending of pragmatism and idealism, justice is what justice does. Rights without remedies are self-evidently absurd, affronts to Nomos — law — based on Logos — truth, the capacity to know truth, and the capacity to engage in that "right reasoning" which, in the Western Legal Tradition, makes Natural Law (law rooted in the good and the reasonable) worth discovering, further developing, and competently constitutionalizing.

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The ancient Greeks sought to embody "civic virtue" rooted in the Homeric quest for aretι: impeccability of understanding and conduct, judicious self-governance based on courageous self-knowledge. The injunction "Know thyself!" addressed societies no less than individuals, and must continue to do so.

As these Jurlandia writings seek to illuminate, our modern quest for Ordered Liberty must be rooted in ancient understandings of the necessary relationship between the Golden Rule, based on our capacity for empathy, and the Golden Mean, based on our capacity for judicious thought and action. These capacities must be nurtured; they are less of Nature than of second-nature, culture, and the Advancement of Learning ... unless, of course, by Nature we include the evolution of cultural memes as well as biological genes.

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Modern democratic theory recognizes the deep moral and philosophical roots undergirding the Rule of Law by which "government under law" — as distinct from "government by laws" — is secured.

The idea of "civic virtue" is central to any discussion of how liberties can be enjoyed without being abused. It posits that humans possess the capacity and necessity for self-government, albeit undergirded by "the Laws of Nature and of Nature's God" — a phrase grounded in both faith and reason, the self-evident and the scientifically-demonstrated. Our understanding of these "Laws" grew out of the Great Synthesis of Athens, Rome, and Jerusalem which our modern world continues its struggle to enhance and advance. Several Jurlandia essays discuss that synthesis from various perspectives and at various focal lengths. See excerpt on the Great Synthesis, as discussed in The Cybernetics of Society.

Such civic virtue rests on "self-evident truths" — accessible to reason, yet ultimately beyond proof and therefore requiring a leap of (shall we say) optimism — which instruct us how to exercise our liberty with self-restraint, empathy for others, and a due regard for the larger good of our world. These truths, like "right reasoning" itself, must be taught and nurtured. What is most self-evident about them is that they are only "self-evident" to those trained to recognize their existence and appreciate their significance. In this regard, James Madison, writing as "Publius" in The Federalist #55, opined:

"As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another."

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Although securing equal liberty and equal justice worldwide must be humanity's highest goal, achieving it requires a pragmatic acknowledgment that it is better that some be fully free than that all become partially free. For if none are fully free, the ideal of securing the Blessings of Liberty for all is likely to become submerged in a bog of despondency, intellectual demoralization, and resulting moral idiocy. Accordingly, idealism and realism must be honored in balanced tension, an equipoise of contrasting  and sometimes conflicting "highest values" such as freedom and security, liberty and order. We must see the world both as it is and as it might become, good and bad, while courageously cleaving to those highest values of Ordered Liberty which have brought the Advancement of Learning so far. Further progress is desirable, any backsliding must be avoided.

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Our greatest progress, perhaps, is understanding that "secure the Blessings of Liberty" means that rights are worthless without remedies. A constitution, to be worthy of that word, must ordain enforceable law. The word "secure" points to this deep truth.

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In ancient Greece, the cradle of Western civilization, only those who took on equal obligations to secure liberty and prevent enslavement were entitled to equal liberty, and hence equal restrictions on their liberties, and hence equality under the law (isonomia), and hence equality in the making of law (demokratia). Democracy alone is not enough; it must be grounded in justice. See Isonomia: Equal Justice Under Law.

In ancient Athens, those who "stood watch" to secure liberty came to include an ever larger proportion of the population, although it was always small; yet the innovation we value above all is not that the Athenians planted the seeds of democratic governance but that they asked — and started to answer — the right question: Who shall watch the watchman?

A constitutional democracy is, above all, a government under law; but that law must itself be governed; this essay seeks to delve into (a) that "law" which undergirds the U.S. Constitution and ought to undergird the evolution of this and all constitutional democracies, and (b) that "legal evolution" which humanity must focus on growing: global government under law.

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Why our planet must secure the blessings of liberty is largely self-evident; but the "ends" and "means" of liberty are interpenetrative in ways that can benefit from explicit inquiry and reasoned discourse. Furthermore, the identity of our "posterity" raises deep new questions.

These questions must not be avoided. What is often called the Advancement of Learning requires that regenerative intelligence keep evolving. The genuine persuasion of a genuinely free posterity is essential to that evolution.

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The Blessings of Liberty "came to America" as a moving target, and they continue to evolve. The nature of those Blessings, or who should be entitled to them, or how "competing" liberties should be accommodated, or what responsibilities specific liberties imply, have changed over the past two centuries. These changes have been essential to the evolution of American civilization, are essential to the sustainable progress of our global civilization, and implicate other evolutionary fundamentals such as the meaning of equal justice, the nature of constitutional democracy, and — in short — everything that the Blessings of Liberty might become.

Illuminated by pragmatic "live and learn" experience, these fundamentals must maintain their integrity while being allowed to evolve further. That is, they are not merely intrinsic goods, valuable unto themselves, they are also instrumental goods, necessary for the sustainable health of any "posterity civilizations" worthy of our best potentials. Without the Blessings of Liberty there can be no Advancement of Learning, and hence no worthwhile progress.

Part Two   

Again, the Constitution of the United States seeks to "secure the Blessings of Liberty to ourselves and our Posterity." The word "secure" is crucial to understanding this Constitution.

Predating the U.S. Constitution was "the law of the constitution" — an odd phrase, perhaps, to American lawyers' ears — which, I submit, ought to carry weighty significance for American constitutional scholars, especially those seeking to interpret and apply "rights" and "privileges" and "immunities" according to the "original meaning" these concepts had when the U.S. Constitution was adopted.

That predating "law of the constitution" did not claim to "create" those Blessings of Liberty. Rather, according to the great English constitutional scholar Albert Venn Dicey (1835-1922), the quest for liberty under law created something which, over time, came to be understood as "the law of the constitution." This "law" was part of the long-evolving common-law tradition which, arguably, predated Magna Carta. It gave meaning to that Great Charter's "law of the land" limitations on the powers of King John and, hence, the powers of all subsequent governments — limitations which "compose" what "law of the land" came to mean: Due Process of Law.

The meaning of the U.S. Constitution's words and phrases, including its 1791 and 1868 references to "due process" and "privileges" and "immunities" and other fundamental terms denoting (pointing to) the rights that the Constitution secures but does not create, must derive from that "law of the constitution" which predated the U.S. Constitution and which used these terms to denote evolving standards of rational and fair governance. Put differently, one of the "rights" secured by the Constitution is the right to have all rights secured within the context of a living, evolving "law of the constitution" that was and must remain the foundation of the Constitution of the United States.

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Securing liberty, justice, democracy, governmental accountability, the privileges and immunities of a free and hence accountable global citizenry, and related fundamentals composing that "birthright" which each generation must improve before bequeathing, requires thoughtful consideration no less than eternal vigilance. What we seek to "secure" is not a plateau of perfection, the Blessings of Liberty, but a dynamic evolutionary phenomenon, the continued worthwhile evolution of regenerative intelligence based on the genuine persuasion of free minds, without which the Advancement of Learning is impossible.

The "posterity" for whom the Blessings of Liberty are secured in the future might be "trans-humans" or even "post-humans" — but, if so, the genuine persuasion of free and hence responsible minds will be especially necessary. Security, liberty, justice, accountability, and similar fundamental values that create "the law of the constitution" are both ends and means, profoundly and indissolubly interdependent.

To what "ends" does constitutional democracy secure liberty? I think the ultimate "end" is that there be no end, that civilization shall remain educable, exploratory, and hence a "means" by which all "ends" are (or at least can be) refined. The issue is less whether we "believe" in liberty than whether we know how it is done.

When asked whether he believed in infant baptism, Old Ezra replied: "Believe in it? Why, man, I've seen it done!

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Rooted in the common-law tradition — a pragmatic "live and learn" synthesis of the Greek genius for systematic thought, the Roman institutionalization of complex governmental structures, and the Judeo-Christian-Islamic commitment to a single God and hence a single Humanity, which synthesis has over the past millennium "rediscovered" the ancient Greek ideal of equality of liberty and hence equality of restrictions on liberty and hence equality under the law — this "law of the constitution" must remain the foundational premise of constitutional democracy.

This foundational premise was once called "Natural Law"; yet it is very much a cultural artifact; indeed, the "cultural environment" that makes us human would be impossible to contemplate without that "right reason" which undergirds Natural Law and its modern expression: Due Process of Law.

Due Process of Law "means" fundamental rationality and fairness, without which "Rule of Law" is impossible and law-based governance goes hopelessly astray.

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The Blessings of Liberty must be secured by an evolving Rule of Law that includes tacit, unarticulated, even unarticulable — and definitely unenumerated — "rights" that imply "remedies" ... including "privileges" and/or "immunities" against governmental encroachments.

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Above all, the U.S. Constitution is a legal document. It both empowers and limits the organs of government, thereby creating a government under law. This "supreme Law of the Land" (Article VI) is ultimately enforceable by the "judicial Power" (Article III). The meaning of "judicial Power" had evolved, along with the English "common-law" system of legal evolution, in light of the above-referenced synthesis of Athens, Rome, and Jerusalem, whose fundamental premises undergird isonomia and its child, demokratia. This synthesis disciplines legislative, executive, and judicial powers, requiring them to carried out "under" the Rule of Law whose most basic foundation is "Natural Law" or, as we now phrase it, Due Process of Law: fundamental rationality and fairness.

Under the Rule of Law premises incorporated into the Constitution — necessarily implied by the meaning of "cases" and "controversies" under "law" and "equity" referenced in Article III, Section 2 — all legal documents must be read, interpreted, and given whatever effect they merit within the context of a hierarchy of sources of law, of which the "common law" tradition of legal evolution is the highest source.

The evolving role of parliaments is part of that evolving tradition, but only part. Another important part is that parliaments are "under law" and, hence, that legislation must accord with the Rule of Law, including its most important element, Due Process of Law. While legislation might be the source of rights, privileges, or immunities, legislation cannot deprive any person of such rights, privileges, and immunities, except by Due Process of Law.

Evolving rights, liberties, privileges, and immunities (as we shall see, these are co-defining and essentially indistinguishable) imply evolving constitutional remedies. Rights disconnected from remedies are worthless.

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The U.S. Constitution makes enforceable law to secure what is often called Ordered Liberty.

This concept obviously implies balancing. Less obviously, it implies triangulating. See First Trinity.

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Constitutional "checks and balances" are only the most obvious modes of ordaining and establishing liberty, justice, democracy, equality under the law, and hence representative government under the Rule of Law.  

(A) This enforceable law creates governmental institutions that are and must remain subordinate to those pre-existing Rule of Law premises.

(B) Perhaps the most important of these premises is that, inasmuch as "the law" came to the United States as an evolving cultural construct, and has evolved further during the past two centuries, we must contribute to its further healthy development. Truly, the Rule of Law lives by learning. A constitutional democracy is nothing if it is not a learning organism.

(B) The evolution of Ordered Liberty must reinforce old remedies and create new or improved remedies — including rights, privileges, and immunities — against governmental encroachments. Some of these encroachments could not have been foreseen by the Founders. Yet, in some irreducible sense, fundamental rights were and must remain (1) "self-evident" in their fundamental nature, yet (2) "evolved" by previous common-law development, including case-by-case adjudications in English courts, and (3) "evolving" towards future refinements, as part of a living body of law securing liberty;

(C) Specifying or "enumerating" fundamental liberties, rights, privileges, and immunities, such as the Fifth Amendment's guarantee of Due Process of Law (which had evolved since the 1215 Magna Carta and was intended, by the Founders, to continue evolving); while

(D) Explicitly ordaining, in the Ninth Amendment, that "enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

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Liberties, rights, privileges, and immunities seem almost interchangeable in the Constitution, the 1777 Articles of Confederation, and a long and evocative line of prior constitutive documents — including the first on the American continent, the 1606 Charter of Virginia.

This is because they were based on fundamental premises — "according to the laws and statutes of this realm" (as referenced in Article XI of the 1628 Petition of Right) — which, undergirding the English "law of the constitution" governing "regular law" in England (see discussion below), reflected ancient principles of "common law" and "equity law" that were incorporated into the U.S. Constitution. Arguably the most significant of those fundamental premises was, as it remains, that rights, etc., are meaningless without remedies.

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The Constitution enumerates specific "liberties" and "rights" such as the Fifth Amendment right not to be "deprived of life, liberty, or property, without due process of law." This right, by necessary implication, ordains an "immunity" against encroachments. This Fifth Amendment immunity was construed to restrict the federal government, not the state governments; accordingly, following the Civil War, the 1868 Fourteenth Amendment remedied that defect by guaranteeing Due Process of Law against state encroachments (see below); in effect, after the Civil War, "these" United States" became "the" United States, abolishing not only slavery but all due-process violations nationwide.

As under English law, the American judicial branch — both federal and state — was specially entrusted to develop and secure the requirements of "Due Process of Law"; this was a term of "common law" art that historically included both substantive and procedural requirements. Article III, Section 2 of the Constitution ordained, "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution." This implied something so basic that it went without saying, namely, that the fundamental understandings of the pre-existing "Law and Equity" — as administered, in essence, by the previous English "judicial Power" — shall remain a central pillar of that Rule of Law by which the U.S. Constitution sought to secure the Blessings of Liberty.

Thus, Article I, Section 9 ordained, "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The Writ of Habeas Corpus was an ancient remedy to secure — to immunize against — unlawful arrest and unjust imprisonment, etc. The privilege against self-incrimination and the immunity from double jeopardy are other well-known privileges and immunities composing rights and liberties secured by the U.S. Constitution and the "law of the constitution" that predated it.

Article IV, Section 2, ordains, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." And, following the Civil War, the Fourteenth Amendment, Section 1, ordained: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." See Due Process of Law.

Furthermore, in language even more significant than that of the Fourteenth Amendment, the Ninth Amendment ordained: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." See Ordered Liberty.

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In the Declaration of Independence and the Articles of Confederation the people of the several states (former colonies) had rejected the sovereignty of a king and had formed an "imperfect" union whose defects were manifest; with their new Constitution, ratified in 1789, these several states formed "a more perfect Union" founded on the sovereignty of "the People" governed by their federal Constitution and their state constitutions which — like the "law of the constitution" under the unwritten "common law" of England which the the United States did not repeal — reflected a fundamental pre-existing truth undergirding government under law based on the Rule of Law.

This fundamental truth is best stated by A. V. Dicey in The Law of the Constitution (8th ed., 1915); this is the classic work on the "law of the constitution" in England, both before and after the American colonies gained their independence. Dicey defined the Rule of Law as meaning (a) "in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of government"; (b) "equality before the law"; and (c) the recognition that "the law of the constitution ... [is] not the source but the consequence of the rights of individuals." (pp. 198-99)

What Dicey refers to above as "regular" law originated long ago, but was perhaps first "articulated" as "the law of the land" in the 1215 Magna Carta. The colonists who broke free from England sought, thereby, to secure "the rights of Englishmen" secured by "the law of the land" — which phrase was translated from the Latin of Magna Carta into subsequent English-language formulations as "the due process of law" (a phrase, as we have seen, that was set forth and then, subsequently, crucially, restated in the U.S. Constitution).

The former colonists' "more perfect Union" sought thereby to secure what, in their view, already "constituted" their liberties, rights, privileges, and immunities. Their "more perfect union" sought to "constitute" these rights more perfectly by creating a limited government subordinated to certain enumerated and other unenumerated human rights.

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According to the classical exposition by A. V. Dicey in The Law of the Constitution (8th ed.), p. 198, the Rule of Law "means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of government."

I should note that, for Dicey, "regular law" is also a term of art. His "law of the constitution" is about a specific model, that of England, in which "the constitution" and "the rule of law" are essentially identical. They start with the 1215 Magna Carta, the "law of the land" by which "due process of law" is secured. In addition to that "absolute supremacy" of regular law, Dicey notes that there must be "equality before the law" and a recognition that "the law of the constitution ... [is] not the source but the consequence of the rights of individuals." (p. 199)

The nature and scope of those liberties, rights, privileges, and immunities secured by the Constitution fundamental rights is a huge subject. In the United States, this subject necessarily involves examining (a) what it means to have a government of limited, enumerated powers in which the people are principals and their government(s) are, in effect, their agents, and (b) how to enforce — under the Constitution, the supreme law of the land — those unenumerated as well as enumerated rights, privileges, immunities, and related blessings of liberty which the people form their government to secure.

As suggested, those unenumerated rights, etc., are arguably too numerous to catalogue; some of them are so fundamental they "go without saying" (such as the presumption of innocence or the right to be let go unless found guilty "beyond a reasonable doubt"); these rights are the focus of the Ninth Amendment of the U.S. Constitution, which ordains: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

These rights, etc., have coevolved with free governments.

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The ultimate question must always remain: What gives governmental limitations on liberty their "binding quality" so that we, and our governments, are required — are conscience bound — to obey the law? "[I]f the term 'law' is to carry the moral implication that there is a duty to obey, then the requisite binding quality must go in before the name 'law' goes on," according to Professor Randy E. Barnett, in his book Restoring the Lost Constitution: The Presumption of Liberty (2004), p. 12.

I believe that the answer has to do with the reciprocity of obligations and rights. They are two sides of the same coin, whose realm is a mutual undertaking: the Rule of Law based on the Rule of Reason. Ordered Liberty coevolves with both, and is implied in the concepts "privileges and immunities" or "privileges or immunities" in the U.S. Constitution.

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John Sherman, Senator from Ohio, provided a good summary of this subject in 1872: "[T]he ordinary rights of citizenship, which no law has ever attempted to define exactly, the privileges, immunities, and rights ... of citizens of the United States, such as are recognized by the common law, such as are engrafted in the great charters of England, some of them in the constitutions of different States, and some of them in the Declaration of Independence, our fathers did not attempt to enumerate. They expressly said in the ninth amendment that they would not attempt to enumerate these rights; they were innumerable, depending upon the laws and the courts as from time to time administered."

In determining the nature and scope of these fundamental rights, privileges, and immunities, said Sherman, the courts "will look first at the Constitution of the United States as the primary fountain of authority. If that does not define the right they will look for the unenumerated powers, to the Declaration of Independence, to every scrap of American history, to the history of England, to the common law of England, the old decisions of [British judges] Mansfield and Holt, and so on back to the earliest recorded decisions of the common law. There they will find the fountain and reservoir of the rights of American as well as English citizens." Barnett, Restoring, at p. 67.

Sherman should have used "rights" (above) instead of "powers"; perhaps. Except that it makes no difference if one accepts the "agency theory of government" in which individuals have unenumerated powers, and hence rights, and they delegate some of their powers (the "enumerated powers") to a limited government.

That government governs best which governs least ... by institutionalizing self-governance and accountability under the Rule of Law governed by the Rule of Reason.

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Excerpt on the Great Synthesis:

Isonomia was the foundation of justice, what Aristotle considered the core ingredient of a civilization that seeks to promote individual and social happiness. First ordained by the ancient Athenian lawgiver Solon, isonomia was later championed by the Roman Republic's finest orator, Cicero; but it was subsequently eclipsed for a millennium, until (in effect) "rediscovered" in the eleventh century A.D. by the true founders of the Western Legal Tradition, the law students of Bologna.

Unaware of what they were doing at the time, these scholars started a process of synthesizing the Greek genius for systematic thought, the Roman genius for pragmatic administration, and the (Western Christian) preoccupation with the "uses" of faith and reason to secure a common humanity under a common deity. Not coincidentally, the "common law" of England (more than is generally appreciated) grew out of, and contributed to, that same nascent "second coming" of isonomia. This theme regarding the origins of the Western Legal Tradition, the Common Law Tradition, and the "cybernetics of society" suffuses these writings. These essays examine it from several standpoints, initially summarized for this website in Inquiry and Proposal on the Goals of Law Reform and Legal-Education Reform within the Countries of the Former Communist Bloc. Much of that essay is now superseded by other writings on this website, especially Post-Soviet Law Reform and Legal-Education Reform. Eventually those essays will be completely replaced by an internet-mediated "encyclopedia of constitutional democracy" at this website. Needless to say, or maybe not, this is a huge undertaking. (Go back)

 

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