Have you ever read the Constitution and Bill of Rights from beginning to end and wondered what the various clauses mean? Or why they were put there? Think abuses!
In the summer before I entered law school at Notre Dame, Dean Joseph O'Meara directed us to read two books: "The Common Law" (1881) by Oliver Wendell Holmes; and "The Lion and the Throne" (1957) by Catherine Drinker Bowen.
Holmes enunciates the abstract principle that "The life of the law has not been logic; it has been experience."
Drinker Bowen wraps that principle in flesh and blood, in her biography of Sir Edward Coke, speaker of the House of Commons, attorney general of England, chief justice of Common Pleas (the civil court), chief justice of King's Bench (the criminal court), and leader in the House of Commons.
Coke held public office almost continuously from 1593 until 1628, beginning his service under Elizabeth I (1558-1603), continuing during the reign of James I (1603-1625) and ending during the reign of his son, Charles I (1625-1649).
He began his service as a loyal supporter of Elizabeth. He ended his days in Parliament (1629) as a staunch opponent of Charles and the Stuart Kings' notion that the king ruled by "divine right."
Elizabeth and the two Stuart Kings were very different monarchs. Elizabeth (by and large) respected the common and parliamentary laws of the realm. James, coming out of Scotland, did not. He believed the king's word was law.
As James crossed into England for his coronation, when a pickpocket was discovered working the crowd of onlookers, James ordered the man hanged. He was -- without trial! The English present, accustomed to trial by jury before hanging, were appalled.
As the years passed, Charles, embroiled in foreign wars, found himself needing money. For that purpose, he convened Parliament. But the House of Commons had grievances and refused to vote to give the king his subsidies. Charles decided to send his tax collectors out to collect the tax "as if ... an Act had passed to that purpose." When the country refused to pay a tax not approved by Parliament, the king's Treasury settled upon the device of "forced loan." Commoners who refused to make "voluntary" loans were impressed into the navy. Peers and gentry who refused were imprisoned without charge. When they sought habeas corpus, the king's judges ruled that when a man was jailed on a king's warrant without charge, the matter must be too serious for the courts to meddle with!
When Parliament dared to debate the "King's Prerogative," members were sent to the Tower of London, to remain there at the king's pleasure. When the Commons sought to call to account the Duke of Buckingham, James' favorite minister of state, the sponsors, too, were conveyed to the Tower.
The men who wrote our Constitution and Bill of Rights were not simply political philosophers. They were practical men, educated in the history (royal abuses) of England. They valued the rights extracted by their English forbears from the English kings, often at the cost of imprisonment or death. They realized their rights were made only reasonably permanent, by the victory of the parliamentary forces over King Charles I in the English Civil War and the beheading of the Charles.
They wrote our Constitution and Bill of Rights to ensure that the American people would rule themselves. They feared kings whose powers were limited only by their own conscience or ambitions. They rejected the notion of a divine right of kings, but also feared that democracy could all too easily degenerate into mob rule. As additional protection, they added a Bill of Rights.
They understood the importance of personal liberty, as guaranteed by Magna Carta (1215), the Petition of Rights (1629) and the English Bill of Rights (1688).
Congress members and the president refuse to follow the Constitution for a number of reasons. Many believe what they want to do is just, fair or necessary and that the ends justify the means. They believe their modern interpretation of the Constitution is more enlightened than that of men who wrote and ratified it. They believe it is a living document, and that in a democracy, the majority gets to interpret it to further the will of the majority.
They believe the men who wrote the Constitution were selfish, wealthy aristocrats who wrote the document to protect their wealth. They fail to understand the danger of an all-powerful central government — as our forefathers did. They see government as benign, and ignore its historical tendencies to absolutism.
If you want to understand the meaning of our constitution, read "The Lion and the Throne" ("L&T"). If you want to understand the historical reasons for our Constitution, read "L&T."
If you want to understand the dangers of an all-powerful central government, read "L&T."
It is my favorite book.
Posted Online: Oct. 02, 2013, 11:00 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2013
John Donald O'Shea
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