by Charles Curley
Special to L. Neil Smith’s The Libertarian Enterprise
Anyone who can read can read the U.S. Constitution and make sense of it. Well, most of it, but the Framers and subsequent amenders did an amazing job of clarity — for a committee. If you’ve studied it, you know that there are certain principles embedded in it which well predate it, which I will lump under the rubric of the rule of law. Due process, freedom of speech, innocent until proven guilty, the trial by jury, etc., etc.
Many of these principles come from the English common law. As such they have been field tested by trial and error not only for the 200+ years that the United States has existed, but for over a thousand years.
L. Neil Smith has pointed out, quite correctly, that the Constitution does not apply to you and me. It applies to the federal government, and, via the 14th Amendment, to the state governments. Since a principal cannot delegate to an agent power the principle does not have, the Constitution also applies to creatures of the state and federal governments: municipalities, weed and pest districts, government school boards, territorial governments, etc..
So while the State of California may not prohibit Paul Cohen from wearing a jacket with the words “Fuck the Draft” into a Los Angeles courthouse (Cohen v. California, 403 U.S. 15 (1971)), you as a private citizen are free to do so. While the federal government must presume that silence implies consent, you are not required to do so. Or, as Robert Bolt put it in A Man for All Seasons (1966), “The world must construe according to its wits; this court must construe according to the law.”
But does that mean we are free to commit all sorts of mayhem, the kind of mayhem governments often do commit, the kind of mayhem that Bills of Rights are supposed to prevent and often fail to?
No, we are not. First, there is the fundamental principle of libertarianism, the non-aggression principle. That, broadly, encompasses the rule of law. We may not do violence to another except in self defense. But principles, unless you believe in karma, are not self-enforcing the way the laws of physics are.
But there is the Golden Rule: Do unto others as you would have them do unto you. If you would be treated by the rule of law, then see to it that you treat others likewise. If you wish to live in a civilized society, then you must be civilized.
When we talk of civilization, we are too apt to limit the meaning of the word to its mere embellishments, such as arts and sciences; but the true distinction between it and barbarism is, that the one presents a state of society under the protection of just and well-administered law, and the other is left to the chance government of brute force.
— The Rev. James White, Eighteen Christian Centuries, 1889
Sometimes that “just and well-administered law” gets in the way of doing what we think is right. So be it.
William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I’d cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!
— Robert Bolt, A Man for All Seasons (1966)
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