THOUGHTS ON LAW & GOVERNMENT: LAW DAY 2017
BY ROBERT J. SHANAHAN, JR. ESQ.
Law Day 2017: This is an encore publication of a past blog article.
“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; that when any Form of Government becomes destructive of these ends, it is the right of the people to alter or abolish it…. ” —The Declaration of Independence, 1776
The principles of American government are clearly set forth in the Declaration of Independence. It is the purpose of government to protect the natural rights of its people, rights which each human being holds simply because they were born; not given to them by any government, but simply bestowed upon all human beings, equally.
The Contract Theory of Government
Most importantly, because the rights of the people are paramount to those of the government, the government exists only by the consent of the people, the people reserving the right to change it, or even to abolish it. This is the “contract” theory of government. This theory of government being a contract between the people and the government is not an original idea of the Founding Fathers. European philosophers had written about it for years, earlier. What is exceptional is that the United States put this philosophy into realty to create something new, establishing the recognition of the dignity of all human beings.
These were earth-shattering ideas in the eighteenth century, and European powers spent the next one hundred years working to snuff them out, along with the country that espoused them. Today, strikingly, there are many in America who will read the words of the Declaration of Independence and find them to be preposterous, evil and even Un-American. In fact, the few times I have seen the clause set forth at the beginning of this article published, the phrase acknowledging the right of the people to alter or abolish the government was omitted. Well over two hundred years later, these words are still considered dangerous and ill advised.
Our Duty to The Law
It is easier to believe in nice, comfortable, yet alien beliefs. But Jefferson and the other Founders still invite you to reconsider and not be comfortable. If you are comfortable, so is the government. If government is comfortable, then the people are not performing their duty to protect themselves from overreaching, encroaching authority. You see, contracts run both ways. The government will govern, but the people must be willing to exercise their duties and obligations or the system will fail, however well thought out.
Law By Consent of the Governed
Necessarily, in order for government to protect the rights of the people, it must have the ability to pass laws and to enforce them. This is not the issue. In American thought and principle, the law, being a power of government, must be given by the consent of the governed. Certainly, this means that the people have the obligation to elect their representatives. But, necessarily, this means more. It means that the process of making law must be readily examinable by the people, and who must be given a say in that process. Otherwise, it cannot be said that the government’s just powers are given by the consent of the governed. All must have their say.
The Constitution sets up a deliberately slow and inefficient system for the passage of law. Many have lost sight of the fact that this slow, sometimes maddeningly inefficient system was created intentionally. It requires our leaders to allow time for all matters to be considered, examined, amended and even struck down by the people. We, the people, through our representatives, shall have a say in the creation of law. Anything which violates this principled process in alien to American thought, and must be excised like a cancer. As Abraham Lincoln so eloquently stated, “whatever differs from this, to the extent of the difference, is no democracy.”
American Law is to Apply to Everyone, Equally
Because Americans are to believe that all men are created equal, laws must be applied to all equally, that is, all are subject to the law and all face the consequences of the law in the same manner, notwithstanding their position or importance in society. Thus, it is said “We are a Nation of Laws, not Men”. The same laws applying to you must also apply to the President of the United States and other officials in society, including the consequences for violation. Minerva, the Goddess of Justice, holds the scales of justice in one hand and a sword in the other. She also wears a blindfold, symbolic that it does not matter who you are, it is only what you have done and the law, which matters.
These are basic American principles of government. The citizens and their God-given rights to life, liberty and the pursuit of happiness are paramount—even over the government. Law is to protect those rights, but law must be made by the consent of the governed. This is guaranteed through the process established by the people, in the Constitution.
American Law is American Because of How it is Made
Thus, it is more important in America how things are done, rather than what is done. And this is the frustration with which those in power must deal. When our politicians carry out policies by fiat, or attempt to limit or short the process in professed favor of getting some project or program through, or when we as a society demand the same, an alien and dangerous set of principles take hold. These endanger our system and our acceptance of the rule of law. The alien principles, particularly those espousing rule by an intellectual elite, do not respect the dignity and rights of all citizens, thus running contrary to those set forth in the Declaration of Independence. They are not American. Creation of law must go through the process allowing the people to consent or withhold their consent, or the law is, by this absence, the very essence of tyranny, and law will not be fully accepted by the people as legitimate.
President Eisenhower established Law Day on May 1, 1958. The American Bar Association defines Law Day as: “A national day set aside to celebrate the rule of law. Law Day underscores how law and the legal process have contributed to the freedoms that all Americans share.”