Selected Works of
R. Carter Pittman
Originally published as 6 J. Pub. L. 444 (1958).
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The Law of the Land
By R. Carter Pittman
ONTESQUIEU SAID in his Spirit of Laws that in a republic, rulers govern by fixed and established laws while a despot governs according to his own will and caprice without laws or rules. Again he said, "In despotic governments there are no laws; the judge himself is his own rule." But in free states, he asserted, there is a law, and where it is precise, the judge follows it; where it is not, he tries to discover its spirit.
The fundamental difference between a despotism and a republic is how "the law of the land" is made or in whom legislative power is vested, in what the law consists and how it is enforced. On every side one hears that a decision of the Supreme Court of the United States is "the law of the land" and must be obeyed by everyone whether he or she was a party to the case or not. Politicians assert the doctrine and call out troops to enforce it. Newspapers and periodicals simplify, distort and perpetuate it. Pulpits echo it, and our children are taught it. Nothing like it has ever been heard in America before. It would seem that declamation has stolen a march on history and found something new.
It was to settle the question as to who should make the law that Charles I and the Earl of Strafford forfeited their heads in the Puritan Revolution and that Lord Chief Justice Jeffries died in London Tower in the Glorious Revolution.
It was to settle forever all questions as to who should make law that the very first sentence of our Constitution was made to say:
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.
It was to settle that question that Section 8 of Article I of the Constitution reiterated in its last clause that:
The Congress shall have power . . . to make all Laws which shall be necessary and proper for carrying into execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
It was to settle that question that every power of the president beyond the execution of laws of the union enacted by the Congress was spelled out in the Constitution by words so plain that anyone who can read English and knows a smattering of American history can understand.
Section 2 of Article III of the Constitution "extends" the judicial power to "Cases in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority." Article VI of the Constitution defines "the supreme Law of the Land" as: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made under the Authority of the United States." Thus Article VI repeats the words of Article III in order that the Judicial Department could never make a valid claim that its decisions in "Cases" are "the supreme Law of the Land." Section 2 of Article III "extends" the "judicial power" to other defined "Cases" and "Controversies," depending upon the laws of nations -- or of States -- not relevant here. But for that extension the courts would have been limited, exclusively, to judging cases involving "the law of the land." Since Article III limits federal jurisdiction to cases, a decision in a case becomes the law of the case, binding only upon the parties thereto -- not "the law of the land," binding upon everyone.
It was to keep federal courts from making law under the guise of finding law that the framers of the federal Constitution, unlike the framers of our state constitutions, withheld from the federal courts jurisdiction of cases and controversies arising under common law.
A republic is a government in which all laws are established by the immemorial customs of the people or are made by representatives of the people in legislative assemblies. If laws may be established or made by men not elected for such purpose by the people, whatever that government may be called, it cannot be a republic.
Writing in January 1775 in Novanglus, No. 7, a treatise on government, John Adams said:
If Aristotle, Livy, and Harrington, knew what a republic was, the British constitution is much more like a republic than an empire. They define a republic to be a government of laws, and not of men.
By 1787 the principles of republican government had been so fully discussed in newspapers, in pamphlets and in general works on law and government that the ordinary American layman fully understood that the legislature makes, the judiciary interprets and the executive executes the law in all republican governments. From 1750 until 1791, a favorite subject for discussion in America was government. Microfilms of newspapers of those years reveal thousands of pages devoted to that subject. During these years more of the common people became expert in the science of government than at any other time in our history.
The following is a portion of a typical essay on government, copied from the front page of the Virginia Gazette of September 20, 1783 (four years before the Constitutional Convention). The Virginia Gazette copied it from the Maryland Gazette of an earlier date. It reveals a deep understanding of the place of the law and the judge in a republic and is sadly prophetic too:
In republican governments, and limited monarchies, many more laws are necessary than in despotic ones: The reason is that in the two former justice is almost mechanical, the judge must apply the letter of the law, from which his judgment must not, nay cannot dissent. He must have either a law, or an established precedent for all his opinions; but in the latter he must consult his own feelings, and gratify his own inclinations in his decisions. In republican governments, and limited monarchies, we must look to the laws for our happiness and safety; but in despotic ones, depend upon the knowledge and integrity of the judge. In the first and second, we have the delegated voice of the whole body politic in favor of a legal decision; but in the third, only the opinion and caprice of a single member of the community, to depend upon for justice.
Everyone understood in 1787 that the new government, constructed by the Constitution, was to be a republic. The people were so adamant on the point that a guarantee of perpetual republican government in the states was thought appropriate to be inserted in the Constitution itself. So Section 4 of Article IV of the Constitution was made to say:
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
Thus the union of states guarantees to every state of the Union that the form of its government shall remain republican, and pledges that the republican state governments shall never be invaded from without. The same section leaves the United States powerless to use federal troops for any other purpose within a state unless called for by the legislature, or by the executive, when conditions are such that the legislature cannot be convened.
A government in which laws may be made by any man or body of men other than those who must obey those laws, or by their representatives in assembly, is a despotism.
The first paragraph of the Georgia Constitution repeats that which many American state constitutions likewise repeat:
That provision of fundamental law goes back to the Virginia Declaration of Rights just as does the preamble of the Declaration of Independence which was adopted one month after the Virginia Declaration.
The statement as originally written for the Virginia Declaration of Rights was in these words:
The idea that people may not be forced to obey laws except laws made by themselves or their own representatives is not an American idea -- it is as old as liberty itself because without it there can be no liberty. The English colonists in America and in the West Indies insisted at all times under their charters, under the common law, and under their rights as Englishmen, that they could not be governed by any laws except those made by their own representatives. A century before the American Revolution the Attorney General of England held that the colonists could be governed "by such laws only as are made there and established by his majesty's authority."(3) There was no substantial question raised about the correctness of that view in America until about fifteen years before the American Revolution.
As long as the American colonists were governed only by such laws they were happy and tranquil citizens of the British Empire. The proposition that sovereignty rests in the people and that they are bound by no laws except those they have consented to by themselves or through their representatives was contended for at Runnymede. It was fought for in England during the Puritan Revolution at the very hour when our foreparents first boarded their little ships to come to America. The proposition that kings or courts, or star chambers or judges may make laws for the people was a favorite thesis of the Stuart Kings and of Filmer.
Writing in 1659 on The principles and maxims concerning government . . . which are asserted by those that are commonly called Levellers, Thomas Brewster outlined the contentions of the Levellers who remained in England to fight to the end in the Puritan Revolution. He said in part:
I. First, they assert it as fundamental that the government of England ought to be by laws, and not by men; they say the laws ought to be the protectors and preservers under God of all our persons and estates, and that every man may challenge that protection as his right . . . .
The Levellers were not levellers. One of the cardinal principles of the Levellers was that representatives of the people are bound "from abolishing propriety, levelling men's estates, or making all things common."(5) The name "Levellers" was given to them by the minions of arbitrary power in an effort to make them appear odious.(6)
Roger Williams, the founder of Rhode Island, was a Separatist and a Leveller and hence believed in and suffered for those principles of government that were fought for in the Puritan Revolution, the Glorious Revolution and finally in the American Revolution and that eventually became the basis and foundation of republican governments, sought to be perpetuated in our American constitutions. The Levellers in government were Separatists in religion. Since Roger Williams was both a Leveller and a Separatist, he was anti-communist, anti-socialist and pro-God. In 1644 Williams wrote the Bloody Tenent of Persecution. His doctrine sounds so American and so familiar now:
[W]e have formerly viewed the very matter and essence of a civil magistrate, and find it the same in all parts of the world, wherever people live upon the face of the earth, . . . I say the same, essentially civil, both from (1) the rise and fountain whence it springs, to wit, the people's choice and free consent, [and] (2) the object of it, viz., the common weal or safety of such a people in their bodies and goods, as the authors of this model have themselves confessed.(8)
The concluding sentences of his treatise say:
All lawful magistrates . . . are but derivatives and agents; immediately derived and employed as eyes and hands, serving for the good of the whole. Hence they have and can have no more power than fundamentally lies in the bodies or fountains themselves, which power, might or authority is not religious, Christian, &c., but natural, human and civil.(9)
Thus we see that the Virginia Declaration of Rights and the Declaration of Independence said nothing about sources of power that was not being said by Americans in America 150 years earlier.
After the House of Hanover came to the throne in England and after the American colonies had grown in stature, and particularly after the French and Indian Wars, the kings and ministers of England decided it to be sociologically proper to govern the American Colonies as ancient Rome had governed her conquered provinces. Colonies were unknown in the world for a thousand years before 1600. Geography stood still that long. England had to seek an ancient precedent because there was no other. Ancient Rome sought to justify arbitrary rule over colonists by asserting that her colonies were conquered provinces and the inhabitants not entitled to human freedom, or even to be consulted about their government. Ancient Rome established and practiced the civil-law rule that government by consent does not apply to a conquered people. Indeed it was conquered people who became the slaves of Rome.
So it was that the ministers of George II and George III insisted that the American Colonies occupied the status of conquered provinces as in ancient Rome, to be governed at the will of kings and ministers by proclamations, instructions, judicial decrees and acts of a parliament that did not represent Americans. That contention was answered in hundreds of state papers prior to the American Revolution. One of the most famous answers was written into the Fairfax Resolves by George Mason, who wrote the Virginia Bill of Rights and Constitution, and later the master first draft of the federal Bill of Rights. The Fairfax Resolves was carried to Williamsburg by George Washington, where it became a model for the Virginia Resolves and later a model for the Resolves of the Continental Congress. Here are the first and second of those Resolves, adopted at a Fairfax County meeting, of which George Washington was chairman, in the town of Alexandria, Virginia, on the eighteenth day of July, 1774:
1. Resolved, That this Colony and Dominion of Virginia cannot be considered as a conquered country, and, if it was, that the present inhabitants are not of the conquered, but of the conquerors. That . . . our ancestors, when they left their native land, and settled in America, brought with them, even if the same had not been confirmed by Charters, the civil constitution and form of Government of the country they came from, and were by the laws of nature and nations entitled to all its privileges, immunities, and advantages, which have descended to us, their posterity, and ought of right to be as fully enjoyed as if we had still continued within the realm of England.
American colonial records are full of state papers, published before the Revolution, in which our forefathers hammered home the same contention that they and their posterity were entitled to be treated as freemen instead of slaves and that they were entitled to make the laws they should obey. "No taxation without representation" was merely a subsidiary slogan.
Against that background of fundamental principles settled by the American Revolution, is it any wonder that all of the constitutions of the separate states and the Constitution of the United States should provide explicitly, and in language so plain that it may not be misunderstood by anyone, that the people of America may be "governed by no laws to which they have not given their consent by Representatives freely chosen by themselves"?
Most of those in the Constitutional Convention of 1787 had risked their lives, their liberties and their fortunes in the Revolution that had come to a close six years earlier. They knew what they had fought for. They had taken up arms to decide not only who should govern but how they should be governed. Having suffered themselves and knowing the history of the suffering of their forebears and all mankind over the centuries in the struggle for freedom and dignity under the rule of law instead of the rule of men, always despotic, is it any wonder that our forefathers wrote into the Constitution of the United States the most important and valuable part of that for which they fought, which was the fundamental principle of the people's being governed by no laws to which they have not given their consent by representatives freely chosen by themselves? They made the Constitution say who should make the laws and how laws should be made. They intended that never again in America should they or their children answer the knock on the door to discover "the law of the land" standing at the threshold.
If a decision or decree or marshal of a federal court had been intended to be "the supreme Law of the Land," our forefathers would have said so in Article VI. A reason why the Constitution defined the "law of the land" was to exclude common law, judge-made law, or law that comes knocking on doors. Luther Martin of Maryland wrote that provision of the Constitution. He hated a government of men as much as John Adams, Mason and Jefferson.
The same section that defines "the supreme Law of the Land" adds clarity in its last clause: ". . . and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." So the plain and unambiguous words of the Constitution itself make the Constitution, acts of Congress and treaties made in accordance with the Constitution, supreme over "the Constitution or Laws of any State." Nothing else could be supreme over the "Constitution and Laws of any State."
The framers of the Constitution understood that courts exist to apply law not to make law. In Article VI they made all judges take an oath "to support this Constitution" above laws enacted by Congress, treaties, Supreme Court decisions or anything else that might pass for national law. If decisions are the supreme law of the land, judges appointed to office on account of their philosophy instead of their learning, and unrestrained by God or government, are free to roam at large, tinkering here, experimenting there, and destroying charters and landmarks everywhere. When the framers put judges under oath, gave them nonprecarious tenure and pay and freed them from earthly fears and wants, it was the best they knew to do. They hoped that free judges, owing their freedom to the Constitution, would support it against usurped power.
If there is one thing clear from the history of our people and from the plain words of the Constitution, it is the proposition that a decision of the Supreme Court of the United States is not "the law of the land." The word "law" is never used in the Constitution in a connotation that might justify the belief that anyone dreamed then that a judge might make law. The word "law" means law enacted by the representatives of the people or set forth in the Constitution itself or in treaties.
In Swift v. Tyson, Mr. Justice Story said for a full bench that:
In the ordinary use of language, it will hardly be contended that the decisions of courts constitute laws. They are, at most, only evidence of what the laws are .... They are often re-examined, reversed, and qualified by the Courts themselves, whenever they are found to be either defective, or ill-founded, or otherwise incorrect. (11)
One of many examples of the restricted and precise meaning of the word "law" as used in the Constitution is in clause 3, Section 9, Article I: "No Bill of Attainder or ex post facto Law shall be passed." From Jeffries and Scroggs to Warren, no judge ever "passed" a law, without usurpation!
When the Congress was adopting amendments to the Constitution in 1789, the members were just as careful in writing the first sentence in the Bill of Rights as the framers were in writing the first sentence of the Constitution itself. The First Amendment says:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Thus freedom of religion, freedom of speech, freedom of the press, freedom of assembly and freedom to petition the government for redress of grievances are predicated solely upon the proposition that only the Congress may make federal laws. If the Supreme Court can make laws or if the president can make laws or if you can make laws for me or if I can make laws for you, there is no Bill of Rights, no Constitution, and no republic and all we have is a government of flesh, which is the very definition of a despotism.
Vattel's first maxim of interpretation is that "it is not allowable to interpret what has no need of interpretation . . . . To go elsewhere in search of conjectures, in order to restrict or extend it, is but an attempt to elude it."(12) The meaning is in the letter and plain words of our Constitution. The Constitution means exactly what it says.
Thirty-five years ago, the eminent historian of the Supreme Court, Charles Warren, wrote:
The Fifth Amendment, with its due process clause, was adopted December 15, 1791. While it was binding upon the federal government only, it was never thought to forbid slavery in the District of Columbia or elsewhere. It took the Thirteenth Amendment to abolish chattel slavery in the District of Columbia as well as in the several states. On May 17, 1954, in Bolling v. Sharpe,(15) the Supreme Court held that the same due process clause of the same Fifth Amendment that did not forbid ownership of Negro slaves by white people in 1864, now requires that the children of the whites go to school with the children of the slaves. If separation of races in the schools of the District of Columbia was legal in 1791 and in 1865 and on May 16, 1954, and unconstitutional on May 17, 1954, what happened to change the law? If the "law of the land" was changed, then the Supreme Court has amended the Constitution and made a law in a manner forbidden by the Constitution.
The Fourteenth Amendment was adopted in 1868. It contains the same due process clause as the Fifth Amendment, as well as a clause providing for "equal protection of the laws," both applicable to the states -- not to persons. From 1868 until May 17, 1954, the Supreme Court held repeatedly that neither the due process clause nor the equal protection clause of the Fourteenth Amendment forbade the states to maintain separation of races in schools and elsewhere.
We hear much of Plessy v. Ferguson,(16) which was decided in 1896, holding that segregation of races is constitutional. We also hear from the apologists for the present Court that it was not by a unanimous bench of the Supreme Court. In Gong Lum v. Rice,(17) decided in 1927, the unanimous Court decided that neither due process nor equal protection are infringed by the separation of races enforced by law. That bench was composed of Chief Justice Taft and Justices Holmes, Brandeis, Stone, Van Devanter, McReynolds, Sutherland, Butler and Sanford. If integration of races is now "the law of the land," the Supreme Court usurped the power to make it in a manner forbidden by the Constitution.
When the Fourteenth Amendment was under discussion before the Congress, those with level heads and a smattering of historical knowledge foresaw the day when some new Jeffries or Scroggs or Stratford might come along and use that Amendment as an excuse to establish a judicial despotism in America. That was one reason why the last clause was added to that Amendment. It reads:
The Congress shall have power to enforce, by appropriate legislation, the provisions of this Article.
That clause is just as constitutional as any other clause. It left nothing to chance, caprice or Warren. Why did the Supreme Court usurp from the people the power to change that Amendment and from the Congress the power to enforce it? The Court blandly held that on all vital constitutional issues we must now look to "modern authority" -- modern authority, moreover, which prophetically advocates the abandonment of our Constitution as "impractical and ill-suited for modern conditions."(18)
Like the infamous Lord Bute, Prime Minister under George III before the American Revolution, the Supreme Court has found that "the forms of a free and the ends of an arbitrary government are things not altogether incompatible." Someone has said:
A people indifferent to its past will not long retain the capacity to achieve an honored history.
Charles I is a part of the "past" of our people. We are prone to think of him as a far-off king of a faraway country. We forget that he was America's King from 1625 until he was executed on January 30, 1649. No ruler in American history, or in the history of any people, by example or otherwise, influenced the making of our constitutions as much as did Charles I.
When the Long Parliament resolved to bring Charles I to trial on January 4, 1649, it declared that "the People under God are the Original of all just Powers."(19) The principal count in his indictment, returned on January 20,(20) was repeated seven days later in his death sentence. Gruesome as it is, it should inspire awe and hence fit this time and place in American history. Here is a part:
[T]hat he, the said Charles Stuart . . . being trusted with a limited power to govern by, and according to the Law of the Land, and not otherwise; and by his Trust, Oath, and Office, being obliged to use the Power committed to him for the good and benefit of the People, and for the preservation of their rights . . . out of a wicked design to erect and uphold in himself an unlimited and tyrannical Power to rule according to his will, and to overthrow the Rights and Liberties of the People, and to take away and void the foundations thereof, and of all redress and remedy of misgovernment, which by the fundamental Constitutions of this Kingdom were reserved on the People's behalf in the Right and Power of frequent and Successive Parliaments, . . . he . . . levied wars against the present Parliament and the People therein represented. . . . For all which Treasons and Crimes this Court doth adjudg That he, the said Charles Stuart, as a Tyrant, Traitor, Murderer and public Enemy to the good People of this Nation, Shall be put to death by the severing of his Head from his Body.(21)
3. 10 Calendar of State Papers, 1677-1680 (Colonial), Nos. 1346-47, at 520-21 (Sainsbury & Fortescue eds., 1896). In general consult Russell, The Review of American Colonial Legislation by the King in Council 26 et seq. (1915); Jameson, Narratives of Early Pennsylvania 208 (1912); 2 Winthrop, History of New England 352 (1953); Winslow, New England Salamander, in 2 Massachusetts Historical Society Collections 137 (Series 3, 1813).