The Centralization of Power and Civil Liberties: The Founders’ Very Fears Come True (The Ethos of Civilization, Part IV)

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IV. The Centralization of Power and Civil Liberties: The Founders’ Very Fears Come True

 

The fear for our freedoms and our Constitution are not unfounded since there is every sign that the American Republic is falling into decline, repeating the darker hours of human history of the great civilizations that came before it. We seem to be repeating the history of the once great Roman empire, which, by the time of its classical period, had already been in a long decline towards ignorance, economic collapse and totalitarianism. Given that the founders of the American Republic took inspiration from the Roman republic (which can be seen in the use of words such as “senate” and “president”), its history may yet offer a valuable lesson. It is surely a bit premature to praise the recent “conservative” tilt of our federal courts. Modern conservatives are by no means “conservative” in the classical sense of the word. Though some may perceive some kind of social good in more “conservative” polices and a return of some sense of religion or “family values,” this is, in reality, no more than mere conjecture. History may here again teach a most dark lesson for those willing to listen to it (and it should also be kept in mind the pattern that Roman marriages and gender relations had taken by this point in Rome’s history as well):

The death of Commodus, who was murdered, plunged the empire into confusion and civil war. Septimius Severus (A.D. 193-211), after years of fighting, succeeded in establishing his authority. He represented a new type of emperor…His ruthless but good rule was founded on the army, now exclusively composed of provincials…His reforms wiped out the last vestiges of senatorial participation in the government and marked the decisive step toward imperial absolutism, although the outward forms of republican institutions which characterized the Principate were preserved.

Septimius Severus founded a new dynasty which lasted till A.D. 235. After this date the Empire suffered a complete collapse. Fifty years followed which were an almost constant period of civil and foreign war, interrupted only at times by capable emperors who for brief periods brought internal peace by ruling with an iron hand. Deterioration of the coinage, began as early as under Septimius Severus, and ever increasing taxes with their consequences of inflation and decline in economic activity, were among the causes of catastrophe.

But the ultimate cause of all evils was the dominant position of the soldiery, a soldiery that included no longer any Roman elements and had long lost its sense of patriotism and duty. A practice which had made itself felt occasionally in earlier times, especially after the death of Nero and after the death of Commodus, became the order of the day. The army, or sometimes individual armies stationed in different parts of the Empire, became accustomed to raising popular generals to emperorship. The unavoidable effects were anarchy and an ever deepening economic depression…

This terrible period came to an end when a general-emperor, Diocletian (A.D. 284-304), succeeded in establishing his rule firmly and in reorganizing the Empire which, surprisingly enough, had survived the storm with its main structure intact. With his rule, the final period of Roman history began. It is called the Dominate because the emperor now in law as well as in fact was absolute, the master (dominus) of his subjects. Under the new order as established by Diocletian, all governmental functions were concentrated in the hands of the emperor, who was recognized as a god; the last vestiges of authority of the Senate were gone.

 However, in view of the political situation during the last century of the Principate, this was a change in form rather than in fact. Actually, Diocletian’s reorganization of the Empire was more a consolidation than it was a new departure. He even tried to return to old Roman concepts by adapting these to the conditions of the times. But the ancient world emerged from the period of anarchy entirely changed. Rome had lost its pre-eminent status and had become just one city among others…

Declining productivity and heavy taxes had brought loss of incentive and deterioration of civic responsibility. The intolerable taxes had in fact induced the upper classes in the cities to seek escape by every means possible; later emperors actually had to make membership in the curiae…compulsory for families of the required standing…

Culture, too, had suffered. Education had deteriorated. Instead of the highly intellectual spirit of the stoic philosophy which had permeated the upper and middle classes during the first centuries of the imperial period, more emotional movements, expressing themselves in new religions, had made steady progress since the beginning of the Principate. But one of these religions attained world-historic importance. At the time of the accession of Diocletian, the most successful of them, Christianity, was on the verge of triumph. It underwent a great persecution under Diocletian, but his successor, Constantine, through the famous Edict of Tolerance issued at Milan in 313, gave it equality with the other religions of the Empire…by the end of the fourth century…Christianity [was] the official religion of the state.

On the whole the reforms of Diocletian and Constantine brought improvement. The fourth century compares favorably with both its predecessor and successor. Internal peace was better secured. Economic conditions improved. A tremendous inflation, comparable to that in Europe after the first World War, was arrested. Education and culture reached a higher level. But all these improvements were paid for with a general loss of individual freedom and with a rising spirit of religious and political intolerance.

New dangers arose soon in the form of invasions by the Huns and Germanic tribes…The Western Empire, left with its own insufficient resources and torn by intrigue and strife at the top, could not stand the impact of the invasions…In 476, the last West Roman emperor, Romulus Augustulus, was deposed by Odoacer, the leader of a mixed group of barbarians which took Rome…[T]he accession to power of Odoacer marked the end of the Roman Empire in the West…The Eastern Empire, richer, more civilized, and better organized, succeeded in fighting off the invaders… Hans Julius Wolff, Roman Law: An Historic Introduction 18-21 (1951).

Wolff goes on to explain the bleaker picture:

…the new relationship between emperor and law reflected the changed status of the law itself. A tendency long apparent and gradually gaining momentum through centuries of slowly growing absolutism had finally achieved victory. The law had lost its quality of being an integral part of the life of the nation and had become a mere tool in the hands of authoritarian government. Under the constitutional conception of the Dominate, the government no longer administered the law of the Roman people: it now dictated the law. The old law- as well as new institutions- had become completely dependent on the absolute will of the ruler. Wolff, Roman Law: An Historic Introduction, at 90 (cited supra).

And how did the people respond to this absolutism and the ruler himself?

The senates were aristocratic assemblies which at times were able to secure privileges for their class but as a whole had very little influence on matters of high policy. The government was exclusively in the hands of the emperors and their bureaucracy.

The government in each half of the Empire centered in the emperor, whose status as a divine ruler- or, in Christian times, as a ruler by divine grace- was emphasized by a strict court ceremonial, borrowed from earlier oriental monarchies, which symbolized the complete subjection of the people to him. He wore special garments and a diadem and those who approached him had to prostrate themselves. As regards the direction of the state, the emperor was aided by a state council (consistorium) composed of high military, civil, and ecclesiastical dignitaries. Wolff, Roman Law: An Historic Introduction, at 47 (cited supra).

It seems increasingly that this sort of situation is happening to America today. The ever-increasing tendency is toward lawlessness and complete intolerance, to the point that the schools even in small towns are continuously locked up like high-security prisons and the people have begun to look up to and hail a demagogue who believes it to be his divine right to subvert the Constitution and rule of law to affect his own political aims. The people no longer respect the public lands. They no longer respect each other. Increasingly, they no longer even respect themselves. All sense of community and family has been obliterated. It also comes to my understanding that the traditional wife and mother, such as myself, must be looked upon with hostility as the domesticated wife and mother from an earlier era would have been more involved, most likely not only in her children’s day-to-day lives but also in school and community affairs, offering a necessary buffer and safeguard against the bureaucratic state and absolutism by staying informed and active in affairs of community and family. In the current state of social and political polarization, where the nation is split apart on ideological and partisan party lines, will Congress become a mere advisory body while the high courts lose their respect and influence as part of a co-equal- yet independent- branch of government? In times of exigency, war, strife and peril, will the incumbent president submit his actions to the “better judgment of Congress,” as did Lincoln? See Abraham Lincoln, Message to Congress 1861 Handwritten Draft https://www.loc.gov/item/mal1050300/. If the Court should rule against him, will he obey its orders and comply, as did Truman (see Youngstown Sheet & Tube Co., et al., v. Sawyer 343 U.S. 579 (1952))?

But American society no longer has an Abraham Lincoln, an Earl Warren, a William Rehnquist, a Sandra Day O’Connor or a Harry Truman. One’s political affiliation today (are you a Republican or a Democrat?)- unlike what would have been the case as little as a generation ago- can generally tell all about a person’s life and beliefs down to the favorite shows they like to watch on Netflix. The men of the nation, no longer the primary providers and protectors of women and children, have largely turned to extremism and perpetual adolescent behavior while both sexes- males and females- increasingly indulge in (sometimes vulgar) displays of hyper-femininity and hyper-masculinity to achieve sexual identity. I cannot really say that the current state of affairs can be remedied. Only the passage of time and the fading away of the older generations and their ways and the coming of a new generation (whom it must be our duty- especially as mothers- to nurture and train our children- the future lawmakers, judges, mothers and fathers- towards a better way of life) can remedy the current state of despair. And despair is what it is. Can we not acknowledge that all of the aforementioned events might potentially be one of the primary (though certainly not the only) causes of all the mental health and drug issues that society is facing today? Women, in particular, cannot cope with feminism’s mandates when they are forced to deny- and society will not acknowledge- their own preciousness.

Most political antagonism revolving around presidential elections concerns their Constitutional privilege of appointing justices to the Supreme Court and lower Federal courts. In the last generation, the fight has almost exclusively revolved around one issue alone: getting “conservative” justices on the highest Court who will “overturn” that one pesky case that gave to American women the right to legally obtain a pre-viability abortion. For this, they (“conservatives”) would sacrifice all else. But as the late Chief Justice William H. Rehnquist (who himself had gained such a reputation as a conservative during his years on the bench that he was once given the nickname “Mr. Right”) cautioned:

Perhaps the lesson to be drawn from these examples [Lincoln’s “packing” of the Court, without the foresight of the major Constitutional crises encountered later] is that judges may think very much alike on one issue but quite differently from one another on others. And while both presidents and judicial nominees may know the current constitutional issues of importance, no one can claim the foresight to see what the great issues of ten or fifteen years hence will be…

The well-known checks and balances provided by the framers of the Constitution have supplied the necessary centrifugal force to make the Court independent of Congress and the president…

James Madison, in his prepresidential days when he was authoring political tracts, said in The Federalist, No. 51:

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.

Madison, of course, was talking about the principles necessary to secure independence of one branch of the government from another…Here again, this remarkable group of fifty-some men who met in Philadelphia in the summer of 1787 seems to have created the separate branches of the federal government with consummate skill. The Supreme Court is to be independent of the legislative and executive branch of the government, yet by reason of vacancies occurring on that Court, it is to be subjected to indirect infusions of the popular will in terms of the president’s use of his appointment power. But the institution is so structured that a brand-new presidential appointee, perhaps feeling himself strongly loyal to the executive who appointed him, and looking for colleagues of a similar mind on the Court, is immediately beset with the institutional pressures I have described. He identifies more and more strongly with the new institution of which he has become a member, and he learns how much store is set by his behaving independently of his colleagues. I think it is these institutional effects as much as anything that have prevented even strong presidents from being any more than partially successful when they sought to pack the Supreme Court. William H. Rehnquist, The Supreme Court 215, 222-23 (First Vintage Books ed., 2002).

When King John met his barons at Runnymede where they forced him to sign the Magna Carta (originally called the “Articles of Barons”) in the year 1215- though they couldn’t possibly have foreseen it at the time- the concept of the rule of law (the idea that those who make, interpret and enforce the laws should themselves be bound by those very same laws)- would become the principle that would ultimately guide successive generations of Englishmen, and become a primary factor for why England would be governed under a constitutional monarchy and why all American judges, governors, presidents and lawmakers would themselves be citizens bound by the rule of law. Indeed, the colonies already had their “Body of Liberties” long before the American Revolution and the original Bill of Rights (itself the product of the Glorious Revolution and James II’s unsuccessful fights with Parliament) predates the United States Constitution by a century. As Urofsky & Finkelman put it so simply, “…At the time of the Revolution, Americans returned again and again to the ideas found in Magna Carta to shape the U.S. Constitution and the state constitutions.” Urofsky & Finkelman, Documents of American Constitutional and Legal History Vol I, at 1.

When Abraham Lincoln convened Congress together at the dawn of the American Civil War (something a president may only do in exceptional circumstances, see U.S. Const. art. II, §3), Congress readily granted him the funds that he sought and ultimately ratified his decision to suspend habeas corpus (see Habeas Corpus Act 1863 https://www.loc.gov/law/help/statutes-at-large/37th-congress/session-3/c37s3ch81.pdf (Last Visited February 19, 2019). The current president has already asked Congress for the funds he desires to fight the current “crisis”- and Congress has already responded with an emphatic “no.” A president may take immediate unilateral action during times of actual invasion or rebellion without first obtaining Congressional approval, but Congress alone was given the power under the Constitution to declare war (U.S. Const. art. I,§8: “The Congress shall have the power to…declare war, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water…To provide and maintain a Navy…To make Rules for the government and Regulation of the Land and Naval Forces…To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions…”) and it is Congress alone who gets the final say, for the Constitution vests all legislative power in Congress. (U.S. Const. art.I §1 “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”) If Congress deems that there is no “crisis” or legitimate cause for emergency action or war, then the president may not unilaterally act against their will. It is Congress whom the Founding Fathers deemed to be the true representatives of the people, not the president. If Congress is not faithfully and diligently (yet wisely) representing the people and their values, then the people may elect new representatives who will listen to the people. For the president to continue his actions after Congress has already disapproved puts him in direct dereliction of his Constitutional duty to faithfully uphold and enforce the Constitution and laws.

The only question remaining now is this: Should the rule of law and Constitution be surpassed for the purpose of securing short-term political goals when it will ultimately put the rights and freedoms of all citizens in jeopardy and potentially subject America to an absolutist form of monarchial/imperial government where power is concentrated all in one single branch (the Founding Fathers’ very fear- and also the primary reason for their distrust in democracy and popular sovereignty)?

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