blog Time Hath Found Us: The Consent of the Governed

April 19, 2005

The Consent of the Governed

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. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed ...
The Declaration of Independence -- 1776

There is much debate today about the judicial filibustering occurring in the Senate. Most people are, I believe, under the erroneous impression that this issue is a political issue. The belief is that it is a Republicans vs. Democrats fight. Anyone who holds a pro-life position must understand that the issue is NOT political. Many, if not most, rank and file Democrats, Republicans, Libertarians and Independents subscribe to the uniquely American proposition that "all men are created equal." Young, old, dull, smart, healthy, infirmed, able and handicapped are included. The inconvienient ones among us should not be subject to the increasingly heartless and incomprehensible decisions being made by the bench.

We have a problem in our nation. Over time and behind our backs our once honored and esteemed Judicial institutions have mutated into an unchecked oligarchy. What else could explain the Terri Schindler-Schiavo travesty? A lower tier county probate judge was able to sentence an innocent woman to death by dehydration. That is amazing in and of itself but the melodrama which played itself out later is the outrage about which we should all be concerned. That county probate judge was able to ignore and, indeed, scoff at an Act of Congress! That judge's arrogance was then upheld and approved by several other higher courts. All of this was done in the open with impunity. To date, no attempt has been made to make the said contemptuous courts answer for their brazen disregard of the the people's representatives.

What happened? Why did this happen?

A very good explanation can be found in the writing of a 19th century American lawyer, abolitionist, entrepreneur, legal theorist and political radical. His name is Lysander Spooner. The following is quoted from his essay "Trial By Jury" written in 1852.

It is plain, therefore, that if the people have invested the government with power to make laws that absolutely bind the people, and to punish the people for transgressing those laws, the people have surrendered their liberties unreservedly into the hands of the government.

It is of no avail to say, in answer to this view of the case, that in surrendering their liberties into the hands of the government, the people took an oath from the government, that it would exercise its power within certain constitutional limits; for when did oaths ever restrain a government that was otherwise unrestrained? when did a government fail to determine that all its acts were within the constitutional and authorized limits of its power, if it were permitted to determine that question for itself?

Neither is it of any avail to say, that, if the government abuse its power, and enact unjust and oppressive laws, the government may be changed by the influence of discussion, and the exercise of the right of suffrage. Discussion can do nothing to prevent the enactment, or procure the repeal, of unjust laws, unless it be understood that the discussion is to be followed by resistance. Tyrants care nothing for discussions that are to end only in discussion. Discussions, which do not interfere with the enforcement of their laws, are but idle wind to them. Suffrage is equally powerless and unreliable. It can be exercised only periodically; and the tyranny must at least be borne until the time for suffrage comes. Besides, when the suffrage is exercised, it gives no guaranty for the repeal of existing laws that are oppressive, and no security against the enactment of new ones that are equally so. The second body of legislators are liable and likely to be just as tyrannical as the first. If it be said that the second body may be chosen for their integrity, the answer is, that the first were chosen for that very reason, and yet proved tyrants. The second will be exposed to the same temptations as the first, and will be just as likely to prove tyrannical. Who ever heard that succeeding legislatures were, on the whole, more honest than those that preceded them? What is there in the nature of men or things to make them so? If it be said that the first body were chosen from motives of injustice, that fact proves that there is a portion of society who desire to establish injustice; and if they were powerful or artful enough to procure the election of their instruments to compose the first legislature, they will be likely to be powerful or artful enough to procure the election of the same or similar instruments to compose the second. The right of suffrage, therefore, and even a change of legislators, guarantees no change of legislation --- certainly no change for the better. Even if a change for the better actually comes, it comes too late, because it comes only after more or less injustice has been irreparably done.

But, at best, the right of suffrage can be exercised only periodically; and between the periods the legislators are wholly irresponsible. No despot was ever more entirely irresponsible than are republican legislators during the period for which they are chosen. They can neither be removed from their office, nor called to account while in their office, nor punished after they leave their office, be their tyranny what it may. Moreover, the judicial and executive departments of the government are equally irresponsible to the people, and are only responsible, (by impeachment, and dependence for their salaries), to these irresponsible legislators. This dependence of the judiciary and executive upon the legislature is a guaranty that they will always sanction and execute its laws, whether just or unjust. Thus the legislators hold the whole power of the government in their hands, and are at the same time utterly irresponsible for the manner in which they use it.

If, now, this government, (the three branches thus really united in one), can determine the validity of, and enforce, its own laws, it is, for the time being, entirely absolute, and wholly irresponsible to the people.

The point Spooner has made and the message to us, in America, today is that we must hold our representatives and by proxy our judiciary accountable. Party affiliations are only so much dross in the face of losing our rapidly fading power to rein in an out of touch and out of control judicial branch of government.

Trying to stack the court by subtraction must be stopped.

Hat Tip: "Mary et. al." over at BlogsForTerri.