A Government of Laws: the American Circumstance | Angus Gillan
“A government of laws, not of men” is how John Adams described the ideal form of government. The Constitution of the United States, in all its brevity, was designed to create such a government.
While Adams’ holds a less than favourable position in history compared to his contemporaries and fellow early Presidents, in part perhaps more recently due to his lack of appearance and deriding in the musical Hamilton. But, his sentiment in the quote above gifts us an inspiring ideal.
‘A government of laws’? After turbulent years, and with commentators, activists, and political figures on all sides of the divide bandying about the claim that American democracy is under threat, it seems hard to comprehend that a system of laws is in control, as opposed to the inflamed whims of individual actors.
What then did John Adams mean when he stated ‘A government of laws’?
The provision of a government of laws
The 18th Century saw American shores governed by an authoritative monarchy and a distant, aloof political body that did not allow for the representation of American colonists in matters of government. Britain dictated commerce and the civil lives of settlers, taxed them without their consent (such as in the Stamp Act 1765), imprisoned dissidents arbitrarily in violation of habeas corpus, and stationed soldiers in settlers’ homes.
In response to perceived injustice and oppressive legislation on ‘Englishmen abroad’ the Revolutionary War was kindled and erupted. Its conclusion marked the turbulent birth of a new nation, one populated by a diverse set of peoples, with no sovereign ties to a higher, more authoritative government. Following the failures of the Articles of Confederation, which too loosely connected each State and granted too weak a power to Congress to raise and use revenue. The Constitution of the United States was drafted with a view by the framers to link ‘Americans’ together before common ideals and laws under a sovereign federal government, that left civil affairs to States, but would control foreign policy, commerce and trade, and military affairs.
Republican structure vs ‘Democracy’
The Government of the United States was built upon a ‘Republican’ structure, for a Constitution is essentially, as the late Justice Antonin Scalia articulated, a structure. In a legal form it means the compiled fundamental principles, and when we inquire about a person’s constitution we are asking about the soundness of their various fundamental parts, are they strong and well. The various Articles (Article I: Congress, Article II: the presidency, Article III: the Supreme Court), provide instruction on how to run government in a conceptual form. In the view of the Framers this conceptual structure is best described by James Madison: ‘a Republican remedy for the ills of uncontrolled democracy.’
Democracy was when the majority vote held power and where the will of the majority directed the nation. Republicanism was where government had limited power. A Constitution would guard against the abuse of power to protect citizens’ individual rights, in which institutions would force deliberation, and check tyranny by separating authority into branches of government.
The Framers passionately believed that people deserved and should be given a voice in political affairs (“Jeffersonian democracy”), yet they feared the tyranny of the majority, knowing people to be emotional beings, as David Hume had written.
The Constitution, comprised as it is of various aspects such as the Bill of Rights, and later amendments, stipulates how society should be governed. America has since been governed by a system of divided powers: the Legislative branch, Congress; the Executive, the president; and the Judiciary, the Supreme Court, can all check the other in some form. It is clear that at least in appearance, there is a set of laws and principles held to by institutions that govern the United States, as opposed to individual actors.
The phrase “A government of laws, not of men” becomes even clearer when reviewing American society. At the time of independence, eight of the thirteen British colonies had official, or ‘established,’ churches, from Puritans in New England, Quakers in Pennsylvania, Baptists and Anglicans in the Carolinas, Virginia, and Maryland, and a few Lutherans and Jews amongst the States. There was also a collective of English, Scottish, Irish, Dutch, French, German … well you the get the picture; a microcosm of Western Europe was settled on the shores.
Socially, America was then, and still is, unique in its identity: unlike the nation states of Europe or much of the rest of the world, where geography and ancestry permitted group identification, the United States was a nation of various peoples united under idealism. As Harvard Professor Thomas Patterson has written: ‘Other people take their identity from the common ancestry that led them gradually to gather under one flag … Americans are linked not by a shared ancestry but by allegiance to a common set of ideals.’ John Adams was thus speaking to the unique heritage of America in his statement. The nation was not to be of ‘men’, or one sect or set of peoples, but open to all who wished to live under Enlightenment principles.
The 14th Amendment
The 14th Amendment best illustrates the importance of providing the ‘government of laws’ that Adams sought. The 14th Amendment makes provision for due process and equal protection. The whims of mankind (or the people in power), do not override the application of fair laws through the nation. The due process clause prohibits States and agents of States from keeping from individuals the rights of life, liberty, or property without the ‘due process of law.’ This is intended to prevent discrimination of groups based on immutable characteristics such as race, or faith, etc. Brown v. Board of Education is a primary example of this being upheld by the Supreme Court, who ruled that public school systems and education facilities could not be ‘separate but equal’, as in separate facilities of supposed equal quality for different races. There is therefore a unification amongst all people, before one set of standards, sharing services, enforced by law.
The Supreme Court first implemented due process in Gideon v. Wainwright. The Supreme Court ruled that defendants are entitled to legal representation, as only through having access to a lawyer could a fair trial be conducted, and due process followed. If, like Gideon, the accused was too poor to afford a lawyer the State is obliged to provide legal representation.
The notion of liberty and individual justice rang true to the Framers and is still held in high regard as a defining characteristics of Americans today; in this regard, the law, access to it, and equality before it, makes America a Government of laws.