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    Havel’s Political Thought

    July 13, 2018 by Will Morrisey

    Delia Popescu: Political Action in Václav Havel’s Thought: The Responsibility of Resistance. Lanham: Lexington Books, 2012.

    Also cited:

    POP: Václav Havel: “The Power of the Powerless.” Paul Wilson translation. In Steven Lukes, ed.: The Power of the Powerless, New York: M. E. Sharpe, Inc., 1985.
    SM: Václav Havel: Summer Meditations. Paul Wilson translation. New York: Alfred A. Knopf, 1992.
    PMP: Václav Havel: Politics as Morality in Practice. Paul Wilson translation. New York: Fromm International, 1998.

     

    Václav Havel remains among the most—some might say one of the few—appealing public intellectuals of the twentieth century. Genial, witty, humane, and (mirabile dictu) political successful, he deserves exactly the well-informed an lively treatment he receives from Delia Popescu, who succinctly presents Havel’s critique of modern life and his efforts in thought and action to counteract its toxins.

    While unhesitatingly preferring the regime of liberal democracy to those of totalitarianism and its flaccid, spiritless successor, ‘post-totalitarianism,’ Havel also saw what Tocqueville saw: Even relatively decent modern societies tend toward lives of apathy and civil disengagement under the rule of impersonal bureaucracies. The administrative functionalism admired by Hegel bespeaks not the rule of reason but the rule of rationalism—of reason made into a system of rules that overlook the personality of the human beings so ruled. Against this, Havel not only proposed by lived a life in which he built up Czech civil society, urging his fellow non-citizens to take personal responsibility for one another. While protestors in the Western democracies demanded ‘participatory’ democracy, Havel worked for ‘anticipatory’ democracy; “the civic spirit that defeated communism…is also the proper foundation for successful democratic rebuilding” after ‘post-totalitarianism’ collapses.

    Popescu maintains that the “dissident thought” in Czechoslovakia and elsewhere in the Soviet empire did not merely imitate “liberal theory” but supplemented and even corrected it. Under the weakened or diluted tyranny of the Central and Eastern European regimes—by then really oligarchies, and somewhat sclerotic ones, at that—the oppressiveness of the modern state pervaded the minds and hearts of non-citizens in a way that is more easily ignored in the commercial republics or liberal democracies. Under any modern state, where exactly does my moral responsibility begin and end? In republics, I bear at least the minimal responsibilities of keeping track of public issues and the conduct of officials, of voting in elections, of voicing my thoughts from time to time. But these not-so-demanding activities may give me an alibi (should I choose to use it) for evading more profound responsibilities of civic engagement: standing for office, involving myself in political campaigns, resisting encroachments on citizen self-government by the administrative state. Modern states with under the more heavy-handed rule of ‘post-totalitarian’ oligarchies force one to face matters squarely, and require sterner virtues in order to sustain resistance. Havel understood the regime question in modernity first as a question of moral responsibility but then, both morally and politically, as a question of each person’s way of life. “Havel’s philosophical backbone is the fulfillment of political freedom through an ethical grounding in individual action and citizenship.” Popescu supposes that this transcends political liberalism, without noticing that James Madison was the man who put the term ‘responsibility’ into play in modern politics.

    ‘Why write?’ Mr. Orwell famously asked. Popescu centers her first chapter on how Havel answered this question. The communist parties disliked any writings that did not reinforce their regimes, requiring of published writers a strict adherence to ‘Socialist Realism,’ which might be described as Balzac on Marxism. Given his politically incorrect social background (his family was bourgeois-all-too-bourgeois), Havel found himself blocked from attending high school; he apprenticed as a carpenter, worked as a lab assistant, all while attending night school and founding a literary discussion group consisting of fellow high-school ‘rejects.’ “Havel had, early on, the experience of living a life within a life, outside the bounds of ‘approved’ society.” Under such conditions, “to write is to consciously act.” And to write not for publication but for circulation among similarly ‘excluded’ fellow writers enhances “a kind of solidaristic experience” among readers and (for a playwright, as Havel was) audiences. Writing groups, ‘underground’ writings and dramatic performances, all become an especially intense form of what Tocqueville called civic association—’civic’ because under such conditions pushing against political exclusion itself becomes a political as well as a moral activity. Czech Communist Party authorities understood this, imprisoning several of the members of Charter 77; the philosopher Jan Patocka died during ‘interrogation.’ While in prison, Havel learned to write “in a complex, encoded fashion,” what Leo Strauss (whom Popescu cites) calls exoteric writing under conditions of “logographic necessity.” This, combined with a Socratic approach of “open-ended questioning” rather than formal defense of a given position, enabled Havel to refine a way of life that challenged a politically oppressive regime without ruining himself or his colleagues. There is, one might say, a secret connection between Socratic questioning and moral responsibility: the desire to ‘get things right,’ to discover the truth of the matter and understand it. In his first speech as president of Czechoslovakia, Havel called for a transfer of this sense of responsibility to a public life that now permitted its open enactment. He hoped that the moral virtues tempered under conditions of despotism could become part of the Czech way of life, its new, republican regime. Popescu calls this “politics as applied ethics”—a political way of life avoiding both utopianism and pragmatism narrowly understood, neither moralistic nor self-centered. He is no ‘post-modern,’ if that means a rejection of intellectual, moral, and political foundations, a rejection of moral standards that transcend praxis. The most accurate term for Havel’s stance is personalism, a body of moral thought which established an honorable history in a century that featured much of the low, dishonorable, and crazed, but which often leaned toward private and social relations at the expense of politics. “Living in truth,” the striking phrase from Havel’s 1978 essay, “The Power of the Powerless,” signifies a sort of democratized version of Socratic Platonism: “We all have the capacity to find inner-truth, even on our own, despite oppression and societal atomization. While Plato expected this only of some”—the philosophers, the few who ascend from the ‘cave’ of political myths—”Havel expects it of all.” One might worry about the extent to which such an exacting way of life could become sufficiently widespread to animate a nation.

    Havel classifies both modern ‘totalitarianism’ and therefore ‘post-totalitarianism’ as political novelties, regimes peculiar to the modern world and its statism. Older tyrannies were, at least, personal; the regime often passed away when the tyrant and his henchmen did. Totalitarian regimes feature both a state apparatus or bureaucracy and an ‘ideology’ which provides a purpose for the regime’s existence beyond mere libido dominandi. Post-totalitarian rule follows from the founding ideological tyranny, differing from it because the justifying ideology or “secularized religion” (POP 26) has lost its plausibility; rulers and subjects alike merely ‘go through the motions,’ mouthing notions which have become platitudes; “empty ritual over principled action” might as well be its motto—so long as one understands that the principles themselves were malignant. “Post-totalitarianism spares itself the effort of convincing,” satisfying itself with outward obedience. In Havel’s words, “each country [within the Soviet empire] has been completely penetrated by a network of manipulatory instruments controlled by the superpower center and totally subordinated to its interests” (POP 24); the result is “automatism” or playacting or “liv[ing] within a lie” (POP 30-31). “The center of power [Moscow] is identical with the center of truth,” as subjects abdicate their own “reason, conscience, and responsibility,” consigning “reason and conscience to a higher authority” (POP 25). The Byzantine Empire is alive but not well, having exchanged Christianity for Marxism-Leninism and then slowly losing its faith in that false-prophetic belief system, as well.

    What Marx called ‘false consciousness’—supposedly characteristic of ‘bourgeois’ rule—pervades the half-hearted dictatorship of what now merely pretends to be the proletarian vanguard. Havel’s offers the example of the humble greengrocer who puts a sign in his window saying, “Workers of the World, Unite!” He doesn’t believe it; moreover, the Communist Party rulers don’t, either. They are all just going through the motions, going along to get along; going along to get along is the way of life, part of the regime, of the post-totalitarian state (POP ch. iii). The ‘bourgeois’ equivalent in the commercial-republican regimes is ‘consumerism’ and a loss of civic-mindedness. Apathy pervades East and West alike, a perverse form of ‘globalization.’ In Havel’s words, “It was precisely Europe, and the European West, that provided and frequently forced on the world all that today has become the basis of such power: natural science, rationalism, scientism, the industrial revolution, and also revolution as such, as a fanatical abstraction…to the cult of consumption, the atomic bomb, and Marxism”—all reinforced by bureaucracy.

    Although the post-totalitarian regime “gradually loses touch with reality,” its self-invented world of lies has a strength of its own (POP 32); “thus power gradually draws closer to ideology than it does to reality,” “draw[ing] its strength from theory and becom[ing] entirely dependent on it”—the reverse of the Machiavellian, and Marxist-Leninist expectation that ‘realism’ would prevail in the new, anti-Christian and anti-classical regimes. The “automatism” of the subjects mirrors the ever-increasing automatism of the regime itself, which “select[s] people lacking individual will for the power structure” (POP 34). This means that the Machiavellian virtù of the Lenins, Stalins, and Maos disappears by the second or third generation of rulers, leaving the regime in the not-so-virtuosic hands of a Brezhnev or (in Czechoslovakia) an Alexander Dubcek. “It works only as long as people are willing to live within the lie” (POP 35).

    On this point, Popescu carefully integrates Havel’s work as a playwright into her account of his political thought. Dramas lend themselves to Socratic questioning. Under conditions of post-totalitarianism, his plays depict “the necessity to dissimulate, to transgress the boundaries of the authentic self,” which “leads to a crisis of human identity,” a crisis exposing “the weaknesses of human nature that open the door to political manipulation.” “Havel agrees with Rousseau that Reason alone is not enough to lead man and society in the right direction”; one might notice that he agrees with ever-ironic Socrates on this, too, whose reasoning never ossifies into rationalism. Inclining more to Rousseau than Socrates, however, Havel emphasizes the importance of “animal pity” or compassion as a moral necessity animating responsible thought and action. Without it, life itself imitates the art of the theater of the absurd. In that absurdity, enforced by bureaucracies in both republican and post-totalitarian regimes, the individual encounters the systematic attempt to “absorb his individuality by means of “a Socratic dialogue in reverse,” one ending not in noetic insight but in assent to the claims imposed by the ‘cave’ of rationalism. “Above, there is the language of the system, which is standardized, rational, cold. Below is the individual who is alone, without convictions, perplexed.” That language consists of a foolish importation of the language of science into the moral sphere, an attempt to treat concrete conditions of persons as if they could be reduced to universal mathematical formulae. “We are going through a great departure from God that has no parallel in history,” Havel writes; with the acknowledgment of no Person, the identity of all persons comes into question, one in which we end up ‘playing a role.’ “Thoughtlessness seems to emerge as the greatest plight of modernity,” accessory to both totalitarianism and “especially” to post-totalitarianism.

    If so, then the antidote to post-totalitarianism is thought. Through his plays and other writings, Havel seeks to tease his readers into thought, taking advantage of the fact that the strength of the post-totalitarian regime is also its weakness, inasmuch as its own automatism causes it to lose the very Machiavellian virtù that its founders exhibited. Thinking holds promise because human beings have consciences, buried though they may be under the mental debris of bad regimes. Conscience links the personal to the political, and indeed to “something universal that unites our moral understanding of the world as human beings.” If the false, historicist dialectic of Marxism-Leninism led many Europeans into this maze, natural or Socratic dialectic can lead them out. Havel’s term for what one discovers as one begins to think is “the Memory of Being.” Popescu links this with “the meaning of history,” but it sounds much more like the Socratic-Platonic idea of mimesis: “The telos of the Memory of Being is…toward the truth,” and this is “a natural human craving,” not an artifact of history. For Havel, unlike the historicists, history isn’t ‘going somewhere,’ progressing under the direction of ‘leaders’ toward an purpose or ‘end of history’ (POP 82); history is a source of experience, an aid to the thoughtful uncovering of the truth. As Havel puts it, “In the post-totalitarian system…living within the truth has more than a mere existential dimension (returning humanity to its inherent nature), or a noetic dimension (revealing reality as it is), or a moral dimension (setting an example for others). It also has an unambiguous political dimension.” (POP 40)

    Aristotle begins his Metaphysics by writing “Man wants to know.” As Havel puts it, there is a “human predisposition to truth,” an “openness to truth” that persists despite all efforts to block it. What Havel calls “Living in Truth” initially “de-politicizes” the human soul—clearing out the falsehoods inserted by bad regimes—and then re-politicizes it on the foundation of the new truth-orientation. Havel’s “anti-politics entails a fundamental rethinking of traditional political values which would survive not only post-totalitarianism, but should also be key in the reconstruction of the new democratic society.” Although neither Havel nor Popescu mentions it, this is precisely what the American Founders did in declaring their independence on the basis of an argument premised with self-evident truths. Havel nonetheless sees what the Founders saw, and what Thomas Masaryk, the founder of modern, republican Czechoslovakia after the First World War, also saw: “The only possible starting point for a more dignified national destiny was humanity itself” (POP 61). Charter 77, the civil-social movement Havel helped to organize, cited human rights, not merely national rights, against rule over Czechoslovakia by the Soviet Union (POP ch. xvii). Contra Machiavelli, under the post-totalitarian regime, unarmed prophets are the only realistic ones.

    “Anti-politics” in Havel’s writings therefore amounts (in part) to an exoteric ruse, a feigned indifference to the post-totalitarian state, which in the “Prague Spring” of 1968 had proven itself both ready and able (with Soviet military assistance) to crush any direct move toward republicanism in Czechoslovakia. But it was more than a ruse, because Havel regarded it a moral foundation for political life in any regime, tyrannical or republican, which featured a stultifying bureaucracy. The antidote to bureaucracy is the reconstruction of a civil society strong enough to resist bureaucratic encroachments and seductions. Just as Tocqueville’s soft-despotic state lulls citizens into complacency, away from citizenship, so “anti-politics” deceives the bureaucracy into thinking that there’s nothing much going on down there. What is going on is the establishment of “a parallel polis” (POP 81). And once the weakened bureaucracy shrinks or collapses, “anti-politics” or civil-society building can continue, re-founding the new regime on the way of life of self-government. Popescu takes care to distinguish Havel’s civil-social approach from Václav Klaus’s economic, market-centered understanding of liberty. Havel rejected “utilitarian motives”—the rational-choice theory underlying both economic markets and weary acceptance of post-totalitarianism—as finally too narrow to satisfy human nature. As Czech prime minister, Klaus wielded more authority within the new Czechoslovakia than did President Havel. In the end, “the Czech state implemented neither Klaus’ unbridled free market nor Havel’s decentralized, civil society driven politics.”

    One problem they both faced was that “bureaucracy has internationalized” much more effectively than either modern tyranny or modern republicanism. From political-economic alliances like the European Union to privately-funded NGOs to business corporations, bureaucracies rule much of the modern world, limiting regimes of despots, oligarchs, and (would-be) self-governing citizens alike. The catchword for all of these organizations is ‘progress’: “Progress has primacy over life.” As a result, all modern regimes “capitalize on alienation, fear, the loss of morality, and consumerism”; they will allow us our pleasures, so long as we leave the ruling to them, as Tocqueville had understood. “Atomized, amoral, self-centered individuals create that mass of indifferent, political disengaged people that provides the basis for both totalitarian regimes, early [i.e. Leninist and Hitlerian] and late [i.e. Brezhnevian].” In the republics it isn’t bad, but the trend is bad. “Post-democracy,” meaning post-soft despotism, will only arise if and when “community groups rise as a response to the here and now,” out of public debate. “The goal of an organic society is to give human agency a chance to be reflected in its institutions.” Such societies would be more polis-like than state-like, maximizing face-to-face self-government and minimizing the administrative state. “They would be structures not in the sense of organizations or institutions, but like a community” (POP 93)—more like Marx’s communes, then, than anything Marxism-Leninism has been able to produce.

    Popescu doesn’t do much with Havel’s writings after the Czech state-socialist regime fell and he became prime minister. For this one must turn to Summer Meditations (1992) his collection of speeches, The Art of the Impossible: Politics as Morality in Practice (1998). In the Meditations, Havel states that since he was responsible for helping to bring down the old regime, he’s now responsible for helping to govern it. He may have some abilities along those lines, inasmuch as “I seem to get along with people, to be able to reconcile and unite them” (SM xv-xvi), a characteristic that might prove useful in moving Czechoslovakia “from totalitarianism to democracy, from satellitehood to independence, from a centrally directed economy to market economics” (SM xvii). Freedom from the old regime had led not to political liberty but to “an enormous and dazzling explosion of every imaginable human vice” (SM 1)—to what Aristotle described as the false, democratic definition of freedom as doing as you like.’ Politically, this resulted in the rise of demagogy, a “general crisis of civility,” which in turn inspired citizen disgust at their own new regime (SM 3). In other words, the bad character inculcated by the old regime now parades on full display. “Genuine conscience and genuine responsibility are always, in the end, explicable only as an expression of the silent assumption that we are observed ‘from above'” (SM 6), but the old regime preached atheism; whereas in France of the 1780s the Old Regime featured an established church, in Czechoslovakia the old regime had attempted to weaken and co-opt the Catholic Church.

    What, then, to do? First, he will continue to insist that morality matters in social life. “People need to hear that it makes sense to behave decently or to help others, to place common interests above their own, to respect the elementary rules of human coexistence” (SM 8-9)—what Tocqueville called self-interest well understood, and what George Washington had called connecting interest to duty, prudence with morality (SM 20). Second, after examining his own conscience, he can try to establish “a kind of elementary companionship and mutual trust” among the people with whom he works (SM 9). Finally, as president he can act so as to show that he follows through on his stated convictions. ‘Power shows the man,’ an ancient Greek said; Havel concurs. Civility matters: “Good taste is more useful here than a post-graduate degree in political science” (SM 11). And the desire to retain one’s independence is no excuse for evading civic engagement: “I once asked a friend of mine, a wonderful man and a wonderful writer, to fill a certain political post. He refused, arguing that someone had to remain independent. I replied that, if everyone said that, it could happen that, in the end, no one would be independent, because there wouldn’t be anyone around to make that independence possible and stand behind it.” (PMP 186) A bit too Kantian to withstand the test of prudential thought, perhaps, but not bad as a piece of persuasion.

    This spirit of civility can make the establishment of sound political institutions more likely. At this time, Czechoslovakia had not yet split into two countries, so Havel advocates a federal structure with parliaments representing the Czechs and Slovaks separately, along with an overall bicameral federal parliament. He understands that this won’t be easy, as Slovaks’ historical experience and “way of life” have differed from those of the Czechs (SM 27); Slovaks are especially suspicious of rule, or even of sharing rule, with ‘outsiders,’ very much including Czechs. To reassure them and to give the new Czechoslovakia an institutional structure that respects persons and fosters self-government, Havel conceives of the new regime as “a set of concentric circles, with one’s ‘I’ at the center” (SM 30). The circles radiate out to families, friends and co-workers, the several levels of government, and ultimately to a group of human beings living together in the natural world (SM 31). This is what it means to have a “home” (SM 30-31). Without a recognized doctrine of natural right to appeal to, Havel in effect sets about re-establishing one in the minds of his countrymen (SM 32-33). He intends thereby to deflect the return to nationalism founded not on natural right but on sharp perceived differences among European peoples, the nationalism that led first to the world wars and then to the spurious internationalism of the communist regimes. The sense of “home” he would inculcate amongst Czechs would satisfy the decent yearnings extreme nationalism satisfies indecently by confining the natural human ‘love of one’s own’ to a moral framework that recognizes the humanity they share with their neighbors. In a speech at Oslo in August 1990 he observed, “The miracle of human thought and human reason is bound up with the capacity to generalize” (PMP 61)—to see the ‘tree’ in each tree in the forest. “On the other hand, the ability to generalize is a fragile gift that has to be handled with great care,” lest we make hasty and invidious generalizations about human groups that are not our group. Against this misuse of the human power of abstraction Havel opposes its right use, the ability to seeing the humanity in those ‘other’ groups in their very human powers and qualities, an ability registered by “respect for human rights” (PMP 64) and not only our own national rights.

    In the political economy, Havel advocates a free market on the moral grounds that this “means that someone is responsible for everything” (SM 62). “This is the only natural economy, the only kind that makes sense, the only one that can lead to prosperity, because it is the only one that reflects the nature of life itself”—”infinitely mysterious and multiform,” impossible to fit into any comprehensive plan (SM 62). Privatization of state-owned corporations will “take several years,” but so be it (SM 64). What Havel rejects, contra his rival Klaus, is the notion that markets alone will solve Czechoslovakia’s problems. No merely political-economic system will—not the old socialism or the new capitalism, if that capitalism operates on the principle of self-interest unguided by moral principles. “Systems are there to serve people, not the other way around. This is what ideologies always forget.” (SM 71). The state properly regulates economic activity, taking tax monies for education (especially civic education), research and development, old-age pensions, and similar activities that the free market may not consistently support, but as in everything else, Havel understands economic life as properly centered on the human person: “If I produced something, I produced it as a person—that is, a creature with a spirit and a conscious mastery of his own fate. It was the outcome of a decision made by my human ‘I,’ and, to a greater or lesser extent, that ‘I’ had to share in my material production.” (115). Neither liberal nor socialist materialism registers this.

    Geopolitically, Havel cites Czechoslovakia’s position on the Great European Plain as the cause of its vulnerability to larger foreign powers, a vulnerability seen in its longtime inclusion in a succession of empires. He hopes that alliances with other Western European countries and the United States, along with eventual change of the Russian regime to commercial republicanism will end this security dilemma, setting European political life on the foundation of “human rights as understood by modern humanity” (98). He doesn’t expect all these pieces to fall into place soon. “In the short time I’ve been active in practical politics, I’ve come to understand that politicians must never be impatient, and that they can never in good conscience say that anything is settled once and for all” (SM 90).

    Popescu wonders if Havel believes in God. He must, if his February 1990 speech to the United States Congress reflects his true thoughts. “Consciousness precedes Being, and not the other way around, as Marxists claim” (PMP 18), he told America’s elected representatives, who may have found his terminology confusing. Consciousness cannot precede being unless there is a God, and God is a Person. This may not mean the God of the Bible, as seen in his remarks about the “Anthropic Cosmological Principle” and even the absurd “Gaia Hypothesis,” about which he went on at some length during a 1994 speech in Philadelphia (PMP 171-172). But even here he concludes with a reference to the Creator-God of the Declaration of Independence, who “gave man the right to liberty,” a liberty man can realize “only if he does not forget the One who endowed him with it” (PMP 172).

     

     

     

    Filed Under: Nations

    Due Process of Law

    July 11, 2018 by Will Morrisey

    The Fourteenth Amendment, Section I: “No State shall make or enforce an 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 dey to any person within its jurisdiction the equal protection of the laws.”

    Originally published by Constituting America, April 27, 2012.

     

    What is “due process of law”?

    Enacted in 1868, the Fourteenth Amendment numbers among the ‘Civil War amendments’—those aimed at settling the relations of the states to the federal government. First among the much-controverted issues prior to the war was slavery, abolished throughout the nation in the Thirteenth Amendment. But slavery had thrived underneath the constitutional carapace of “states’ rights.” If state governments were not restrained from abridging the citizen rights of the former slaves, for example, what would prevent them from reintroducing de facto racial servitude in some other guise?

    For example, why would the states not practice oppression against any group it chose to target by making it subject to arbitrary arrest or imprisonment or to summary judgment without benefit of trial? The Constitution prohibited the federal government from doing such things, but what about the other levels of government?

    Thus the Fourteen Amendment says that no state may “deprive any person of life, liberty, or property, without due process of law.” Readers of our founding documents will find that language very familiar. Rightly so: The phrase reproduces the language of the Fifth Amendment, which itself follows the famous words of the Declaration of Independence: “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.” Jefferson’s words follow those of John Locke, who identified life, liberty, and property as fundamental natural rights.

    This means that the Framers took natural rights—rights endowed by our Creator—and made them into civil rights—rights formally recognized in our fundamental man-made law. Designed and implementing by human beings, governments exist in order to secure our natural rights, and one way to secure those rights is forthrightly to enunciate them in the supreme law of our land, ratified by the only sovereign body under God Americans recognize–themselves.

    But if governments are instituted to secure our natural rights against those who would violate them, by what right does government punish the violators? Does effective punishment not require the government to deprive criminals of their property—by fining them—their liberty—by imprisoning them—and even their lives—by executing them for the most heinous offenses against our natural and civil rights? How can government do this without contradicting itself—without violating the very rights government is supposed to secure?

    The basic principle of justice is to replay good acts with good acts, bad acts with bad acts. (The basic law of charity is to repay bad acts with good acts, but charity goes beyond justice.) The ‘bad’ or rights-depriving acts of just punishment are actually good in the sense that they punish those guilty of committing bad acts against the good. This repays the bad in their own coin and may deter those who are thinking of committing bad acts. Justice metes out equal things to equals: good things to the good, bad things to the bad. Those who deprive their fellow human beings of their lives, liberties, or property justly lose their own property, liberties, or lives.

    How do we determine who is guilty of a bad act? Parents mete out what might be described as informal punitive justice to their misbehaving children. This usually involves the quick procedure of look, see, and swat. Children do not deserve a jury of their peers, primarily because such a juvenile jury would be as foolish and unruly as they. Adult fellow-citizens are a different matter. As persons capable of ruling ourselves by reason, we deserve more careful treatment. The care we owe to children entails bringing them up to rule themselves by reason, preferably before they get big enough to do serious damage. The care we owe our fellow citizens entails treating them as such—as persons who should know better than to behave as if auditioning for the next episode of Cops.

    This is where due process of law comes in. As an American citizen, your civil rights may not be abridged by punishment for any crime without the observance by the executive and judicial authorities of well-established legal procedures, including a list of the charges against you and the opportunity to defend yourself against them in court. That is, any punishment involves the government in depriving the accused of some important civil right, a right it normally would be entrusted to secure. To do so fairly, the government must ‘make a case’ against you—persuade a reasonable judge or jury of your peers that you deserve such deprivation.

    Today, this form of due process is often called “procedural due process”—a rather odd-sounding redundancy. What process is not procedural? This locution is meant to distinguish adherence to proper legal procedure from another thing called “substantive due process.”

    Strictly speaking due process of law limits executive and judicial power to acts that insure a defendant’s fair chance actually defend himself civilly, without needing to defend himself physically by running away or fighting back. Due process helps to make civil society civil. Substantive due process limits not only executive or judicial power but legislative power. Substantive due process hold that Congress and (with the Fourteenth Amendment) the state legislatures may not pass laws that abridge your life, liberty, or property. For example, an American version of the infamous Nuremberg Laws of Nazi Germany, depriving a particular religious or ethnic group of their civil liberties and thus rendering them less than fully-protected citizens, would clearly violate the civil rights to liberty and property of all members of that group. The “substantive” in the phrase “substantive due process” thus refers to the substance of a given law itself as distinguished from the procedures employed to enforce the law. Due process initially held that you could not be deprived of your civil rights to life, liberty, and property without proper legal procedures; it now meant that legislatures could not deprive you of such rights in the first place. Advocates of substantive due process worried that citizens might be afforded all proper legal procedures but still end up injured by getting on the wrong side of an unjust law.

    However, the assertion of substantive due process itself causes a serious dilemma. It returns the country to the original problem that due process was intended to solve: the need to do injury —to violate the natural and civil rights of those who violate the natural and civil rights of others. If legislatures cannot secure the rights of the good by enacting laws that injure or ‘correct’ the bad, how will the rights of the good be secured at all? It seems that the very substantiality of substantive due process contradicts justice itself.

    Having caused this new problem, the Supreme Court soon got round to re-solving it, this time at the expense of the legislatures and of the people, and to the aggrandizement of themselves. In its first move, habitual since the 1940s especially, the Court has claimed that due process places the states under the requirement to adhere not only to those amendments (such as amendments thirteen and fourteen) that specifically restrict the states, but also to adhere to the whole Bill of Rights, which of course originally applied to the acts of the federal government only. So, for example, the first amendment ban on religious establishment by the federal government left state religious establishments undisturbed; now, the courts could invalidate any such establishments by invoking the due process clause understood ‘substantively’ and not just ‘procedurally.’

    This vast expansion of the scope of the due process clause solved the problem of the protection of our civil rights, but at the expense of intensifying the problem of American self-government. In practice, the Court’s behavior has proved highly selective. In the case of the Second Amendment protection of the right to bear arms, the Court has often chosen to overlook state restrictions on that right. At the same time, the Court has at times deployed substantive due process in establishing hitherto unknown and entirely unsuspected ‘constitutional rights.’ It has done so by making a second move, widening the definition of the rights to life, liberty, and property. The Court-asserted rights to abortion (established in Roe v. Wade [1973]) and to homosexual activity (established in Lawrence v. Texas [2003]) clearly go far beyond anything the framers of the Fourteenth Amendment could have been thinking back in 1868. The justices have combined substantive due process with their invention of unenumerated Constitutional rights—seen perhaps most glaringly in the 1965 Griswold v. Connecticut decision, in which the majority opinion claimed that the “right to privacy” existed in the “penumbra” of the right to liberty. This has proved an expansive and ill-defined emanation, indeed. The doctrine of substantive due process added to a very broad definition of civil rights has enabled the Court effectively not merely to adjudicate but to legislate—a power previously thought to reside in, well, the legislature.

    By placing the states under the entire Bill of Rights, and then by defining “rights” penumbrically (I invent the word for the occasion, imitating the creativity of the distinguished justices in my own small way), the Court has done far more than to abridge the powers of the state governments. It has effectively given itself the power to amend the Constitution. Under the original theory of American constitutionalism, only the people—the sovereigns—held this sovereign power. Now the judges exercise it, too, making a portion of the federal government sovereign over the (formerly) sovereign people. While the Founders asserted the natural rights and sovereign power of the people to establish civil rights over the government-made rights of Englishmen as the basis of their independence from the Empire, the Supreme Court has effectively revolutionized the American Revolution, making Americans into Europeans, again—the New World back into the Old.

    Filed Under: American Politics

    Constitutional Limits on Military Action

    July 9, 2018 by Will Morrisey

    Remarks on the Third Amendment: “No soldier shall, in time of peace, be quartered in any house, without consent of the Owner, nor in time of war, but in a manner prescribed by law.”

    Originally published by Constituting America. March 7, 2012.

     

    Supreme Court Justice Joseph Story, author of perhaps the best commentary on the U. S. Constitution, wasted little ink on the Third Amendment. “This provision speaks for itself.” So it does, but a few words of background information can explain why the United States Congress and the people they represented thought it worth adding.

    During the French and Indian War the British found themselves harried by what we would not call guerrilla strikes. They had some regular army bases—some of the best of them along the border with Quebec. But given the character of the war they were fighting they needed to move forces quickly into undefended areas to counter French and Indian raiders. And so they would occupy an unsecured and threatened area—protecting the lives and property of the local citizens in exchange for the commandeered use of the locals’ property for that purpose.

    After the war, this practice (as our saying now goes) got old in a hurry. By 1765, Benjamin Franklin complained that “there are no want of barracks in Quebec, or any part of America; but if an increase of them is necessary, at whose expense should that be?” Surely not that of private citizens. To Franklin’s complaint about property rights, Samuel Adams added a political one: “Where military power is introduced, military maxims are propagated and adopted, which are inconsistent with and must soon eradicate every idea of civil government.” By occupying the property of private landowners, the British Army acted as if a law unto itself.

    Colonists’ outrage heightened in Adams’s own Boston, where the early stirrings of armed resistance to the British military presence provoked Parliament to pass the Intolerable Acts (as the colonists called them), making any public gathering an act of treason and formally providing for quartering troops in private homes. Upon founding the Union in 1774, Americans saw their representatives in the Continental Congress pass a law in favor of “the better providing suitable quarters for officers and soldiers in his majesty’s service, in North America”; this same Congress simultaneously protested the way in which the British government actually did quarter the troops. Once resolved upon independence, the colonists listed the British practice among the grievances proving the tyrannical character of George III’s rule.

    The lack of such a provision numbered among the several complaints lodged against the 1787 Constitution by the Anti-Federalists during the ratification fight. After the Constitution passed—barely, in several states—James Madison and the first United States Congress took up the matter of amendments. One of the strongest advocates of what would become the Third Amendment was Thomas Sumter of South Carolina; as a Patriot military commander during the war, the Carolina Gamecock had won his nickname by inducing Lord Cornwallis to get out of the deep South, moving on toward his unlucky fate at the hands of George Washington and the French Navy at Yorktown, Virginia. Beyond property rights and politics, Sumter went to the heart of the matter: Property occupied by soldiers “would lie at the mercy of men irritated by a refusal”—men expecting obedience to the orders they issue—”and well disposed to destroy the peace of the family.” With than gentlemanly description of ungentlemanly conduct ringing in their ears, the Congressmen gladly passed the amendment.

    Notice the important caveat. Times of extreme emergency may require the risk and burden of quartering troops in private homes. Accordingly, Congress provided that the practice might be renewed by legislative act. The lives, liberties, and property of American citizens, even the sanctity of the family, might under certain conditions be more at risk from an enemy force than from the forces charged to defend them. Then and only then would a Congress or a state legislature dare to enact such a measure.

    Although one shouldn’t read too much into the order of the first ten amendments (famously, the First Amendment is first only by accident), the placement of the Third Amendment does make good sense. It follows the Second Amendment stipulation of the right to bear arms; an American household can usually defend itself if family members are rightly armed and trained. It precedes the Fourth Amendment’s stipulation of security against unreasonable searches and seizures. The right to be free of military occupation in one’s own home from one’s own citizen-army sits well between the rights of self-defense and the orderly rule of law respecting property.

    Filed Under: American Politics

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