REPRESENTATIVE RUMINATIONS (amicus brief for General Henry M. Robert)

I.

One hears or reads how this or that person is Hitlerian, how this or that ruler rules at any given time as many as he or she can, and we reflect again how it is that Mosca and Pareto are not being noticed these days, let alone talked about.

One ought to feel obliged to re-read these two men and that would be a good thing, but not if in doing so we failed to remember that Hitler came later than Mosca and Pareto, after they had made what amounted to a stark but classically-informed conclusion: the few, they held, shall always rule the many.

What can one say to that, supposing one appears friend-to-the-court? Mosca and Pareto write as if they are stating an inevitable state of affairs. What might one reply?

Understand, Mosca and Pareto did not arrive happily to their conclusion. On the contrary. They were not bad men and if they are to be faulted, it were more equitable to suggest that as doctors they were a bit off in their diagnosis. That is to say, they tried to show that we would die of the disease called democracy, not just with it. But these were accomplished men of great power of mind, and if they didn’t, after all, get it quite straight — if the case, in short, is not as they argued inevitable — they got matters down to bone-level, which is why their discussion affects us as it does, or ought to.

Can a democracy hope to live on? It is fair to ask. Benjamin Franklin’s comment was that this new government (our own) might enjoy its moment to shine, then gutter, not having had the requisite wit or wisdom to prefer and honor, for once, a turkey over an eagle. Franklin was only saying with the humor native to his country that he would have agreed with the culture-drenched (and solemn) Italians. Still, does it really have to go that way, always?

Can’t accident come into it, as it always does in all things? Might democracy, that way of governing, properly-defined, might it not have accidentally happened in the peculiarly American experience to have brought along and refined a way of governing due to endure? Might the American accident have survived just because a surprisingly few things in England and then in the United States happened to happen?

Mosca and Pareto, we say, did not advance happily to their conclusion, on the contrary. But what they conclude may end, finally, as only a less kindly, less actually experienced way to see matters than the way no less a sensibility than that of Benjamin Franklin had the luck to get to see them.

Franklin believed that the new country with its enlightened and explicit constitution might toddle along for a time in a fairly tidy fashion before it too went the way of other governments and empires. Franklin did not believe that this new country would last, much less that it would thrive. He would have readily agreed that entropy, if not ripeness, is all, and Lawrence was right to see him as a less than admirable snuff-colored little man calling Providence and rum the appointed means to extirpate the savages. Franklin called it — our experience who are Americans — as he saw and lived it. A person worth study and thought, a fortunate man to live where and when he did, one of the remarkable band who were the founding fathers and who, perhaps, built better than they knew. It remains to be seen and/but it does not look good. Still…

 

II.

Still, there are those things which belong to some of us and are a part of our indisputable heritage, starting with the grand charter and which is the Magna Carta.

Especially when talking about law, one makes a fundamental distinction between what the original framers of a given law intended, and what the words of that law actually say, or can be said to say. Something like this happened in the case of the great charter on 15 June, 1215 when the power of King John was limited and representative government as understood ultimately in England and America came into being. The framers intended what they intended and the words of that great instrument say what they say or were made to say with great inclusivity of forest and property, taxation and church, causing Tennyson to drop naturally into verse:

A land of settled government,
A land of old and just renown;
Where freedom slowly broadens down
From precedent to precedent —

What follows will be concerned to identify a few of those precedents belonging to us as our common American heritage, what was intended and what the words were said to say on this and that occasion.

Habeas corpus: Winston Churchill was once asked by an Italian visitor what he considered the defining characteristic of the English genius for governance. Churchill replied immediately habeas corpus, one of a variety of writs named in the Great Charter. You have the body. Now think back again where original intention and later construction of the actual words used in some measure are concerned.

This time there can be no distinction drawn between the two where, for example, the people held at Guantanamo are concerned. What is going on there is illegal and un-just, clearly; for a certainty it is profoundly immoral, if there is still a shred remaining of what was supposed to have been an America.

If memory serves, it was to Learned Hand that Holmes was speaking when he said that it was not his job to do justice; rather, it was to apply the law. To be able to do that, however, due process and good order would have to be assumed. Good-faith application of existing procedure must be assumed, but currently, at least, an on-going contamination of governance by monied influence cries open season on good order as that would be understood and assumed in a British and American tradition of governance. If only America had studied the classics. It troubles sleep. Influence is no government. Who did say that?

Ideally, given the comment Holmes made to Hand, one might hope that justice was incidental, a by-product of the good-faith application of law. Suppose, however, one is being asked to apply a law one can justifiably call wrongfully-derived, or simply, a bad law. Suppose one is expected to apply what is a singular absurdity masquerading as law based neither on intention nor on words in some actual document, like saying (very like saying) that since Blacks are human it follows by strictest entailment that corporations are people.

The case given immediately above is one which makes a gigantic mockery of the Bill of Rights, a criminal confusion of things that absolutely do not belong together and which can only work more harm as time goes on.

Then, take another example repugnant to the entire British and American tradition of governance, namely, the majority opinion of the highest court of the land that money is speech and is, accordingly, due all rights and privileges consonant with First Amendment freedoms. How might such a finding be advanced when money continues to be as always the very root of evil, however-defined? Money is precisely what is being talked about when one asks, who said, “Influence is no government?”

One could — in fact, one is obliged, if the term laches has still, some legal meaning left, one is obliged to call the Court’s recent ruling that money is speech despicable as well as dead, dead wrong, that it presents a clear as well as immediate danger — a danger as it is a complete repudiation of the very Idea of a democracy, however-defined. “Money?” Money is used to buy things, and when used to purchase influence, money becomes suicidal prostitution as it is yet another kleptid plutocracy. The brothers Koch are, clearly, suicidal; as they are successful and succeeding, they are doing their best to speed up acceleration; they can’t last and they are whether they know it or, variously, do not… suicidal. One might only offer a cap on that by saying that either Koch, or both, are within their rights to deprive themselves, either of them, or both, of life itself; they do not, however, have any right to take the rest of some us with them as they go down. That would be murder, by several suicides.

Unquestionably, one can put together the strongest of arguments that the latest game that was the United States of America is going down like a shot hog, and that is not some single sensibility speaking, on the contrary, it is what it looks like, and it don’t look good. Read over what has been said, so far — the voice you hear, however-crabbed, is not one person’s only, but implies and reflects names worth the closest of study, worth some continuing immediacy of action: the very next thing, after all, is just that, next, even if (especially if) one great last experiment we Americans were can now be counted, statistically, extinct. Shall some “one”, like Publius of another time, tot up the numbers one more time: Hasn’t it been more than a little just like that? Isn’t it? Didn’t some number get it right, right on through, and call it? If only America had studied the classics.

 

III.

Let us assume what has to be assumed, first, foremost and finally, that procedure go on in good faith with such an exercise of the powers of the government as the settled maxims of law permit and sanction and under such safeguards for the protection of individual rights as those maxims prescribe.

All of which sounds decidedly airy until we remember that good order is the reason a certain General Henry M. Robert, reprising Jefferson and Cushing, wrote up a manual describing how in a peculiarly British and American tradition of law and by-law ordinary and for that matter especially extraordinary busi-ness is, always, to be conducted, and why an ordinary citizen acting just-then as parliamentarian might rise to a question of privilege in order to move a privileged motion requiring no second, pointing out that a taint and contamination of procedure exists which has to be recognized and removed so that busi-ness can go on again.

Pasó por aquí: Who passed by here? John Adams (not the Adams of the Alien and Sedition laws, but), the Adams of the Captain Preston case; Josiah Quincy, Jr., of the once-famous letter to his father; Judge Jesse Carter of the Rochin case — if only we Americans had studied the classics, and so been able to recognize and profoundly to appreciate how handsome was the Warren court, particularly as compared with the hideousness of the Roberts majority. It is as if one were asleep and dreaming a nightmare, knowing all the while that equity as always aids the vigilant, not those who slumber on their rights, knowing all the while that something which a party might do and might reasonably be expected to do toward vindication or enforcement of one’s rights works if neglected to abandon those rights, the inevitable assumption being that one has no interest in that about which one is silent. We ought instead to have been continually aware of the abridgment of the freedom of the people that can come about by gradual and silent encroachment by those in power.

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