Justice is the end of government, it is the end of civil society. It has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. (James Madison, Federalist #51)
I read an article this weekend about one of those episodes in Hilary Clinton’s career that now have her shrouded in the political equivalent of Pigpen’s dirty cloud. The article deals with a victim’s allegation that newly found evidence proves that, as a young lawyer on-the-make (as the British say), Hilary Rodham acted with cynical disdain for what she knew to be the true facts of the victim’s rape (when she was a virginal 12 year old) at the hands of two adult males, one of whom was Clinton’s client at the time.
Clinton was acting as a court appointed attorney. Experienced criminal trial lawyers may find in this all they need to explain Clinton’s disregard for the guilt or innocence of her client. Yet this is precisely what seems to me most disturbing about the episode. Though we still call it the criminal justice system, the legal culture that prevails in America’s criminal courts seems to encourage lawyers to cultivate a studiously maintained indifference to justice as one of the character traits of their professional mentality.
Believe if you like that this indifference to the issue of justice is limited to defense attorneys, bound to defend their clients to the full extent of the law; or prosecutors driven to maintain or improve their conviction statistics. But “the law is what the judge says it is” mentality that now pervades America’s courtrooms contributes to a cynical fear of the tyrannical power it implies, the kind of calculating fear that turned the courts of despots and dictators into noxious dens of intrigue, where being on the winning side is the secret of survival, and the relevant advantage of power, however achieved, is the key to winning.
If this is indeed the ecology of America’s legal profession, it should come as no surprise that the character of our most successful lawyers has been warped by it. Given the number of people with legal backgrounds who become involved in our politics, we should expect that, beneath a veneer of publicly altruistic rhetoric (carefully calculated to manipulate rather than truly inform), we are likely to find a hardened indifference to anything but power and the success by which it is obtained. To such people, voters are like jurors, to whom one should never speak of justice or truth until and unless doing so makes victory more likely.
Readers familiar with my speeches and writings over the years know by now that the above quoted observation by James Madison is never far from my political thoughts. It comes in the course of Madison’s discussion of the logic of the U.S. Constitution’s provisions for “proper checks and Balances between the different departments of government”.
Though you would hardly know it from much of the shallow thinking of our day, these provisions are not some hit or miss contrivance reflecting the dated, time-bound and stingy understanding of government, characteristic of the long-dead, slave-holding hypocrites today’s anti-Constitution elitists want us to believe were just about all there was to America’s founding generation. In fact the so-called system of checks and balances reflects the timeless concern for justice and right dealing that decent people have always known to be the preeminent challenge of statecraft.
Thanks to the depraved Machiavellianism that now saturates America’s Europeanized elitist culture, the main concern of elitist faction politicians and bureaucrats is the tyrant’s preoccupation with securing power for themselves, or those they self-servingly serve: “To be thus is nothing;” as Macbeth puts it in Shakespeare’s play (Macbeth Act III, Scene 1), “But to be safely thus.” The security of power is everything. The determination to obtain or use it justly is of no intrinsic importance.
But, as Madison’s axiom shows, America’s founders, concerned as they were with liberty rightly understood, saw justice as the sine qua non of decent liberty, the essential motivation and aim apart from which liberty must inevitably be lost. At the same time, however, they were well aware of the fact that the persistent thirst for power is the besetting infirmity of ambitious characters. Indeed, to the ambitious mind, liberty means the unbridled freedom of unchallengeable power, which means that no one is truly free in the presence of any power greater than his own.
In one respect it seems that the “system of checks and balances” assumes and relies upon this characteristic of ambitious people. By dividing and distributing government power among difference branches it aims to harness the restless energy engendered by the thirst for power so that, appearing in deliberately independent and competing forms, it encounters, repulses and constrains itself. But in the absence of some containing influence, what is to prevent the commotion generated by this engine of competing powers from thirstily absorbing all surrounding sources of energy and power into itself, becoming as it were an all-consuming black hole with no effective end but desolation?
In this regard it is essential to note that Madison’s observation about the essential importance of justice introduces his discussion of this very question. What will keep American society from being desolated by the competition or consolidation of faction? The answer is somewhat surprising.
In the extended republic of the United States, among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good [italics mine]; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself.
Key questions arise from Madison’s logic, though they are seldom pondered these days by critics or defenders of the Constitution. What justifies Madison’s assumption that a majority coalition “could seldom take place” without regard to justice? And what safeguard is there against factional desolation if and when it does take place? ( Part Two coming up in my next post)