When our founding fathers wrote the Constitution of the United States, they were writing this document from the worldview of immigrants who had fled their home country because of tyranny. Tyranny came to our founding fathers in many forms, but most often in the form of lack of religious freedom and the enslavement of the “common” man (not nobility) primarily via indenture (debt bondage) and forced labor.
Contemporary forms of slavery includes: debt bondage, serfdom, forced labour, child labour and child servitude, trafficking of persons and human organs, sexual slavery, children in armed conflict, sale of children, forced marriage and the sale of wives, migrant work, the exploitation of prostitution, and certain practices under apartheid and colonial regimes. As a legally permitted labour system, traditional slavery has been abolished everywhere, but it has not been completely stamped out. There are still reports of slave markets. Even when abolished, slavery leaves traces. It can persist as a state of mind- among victims and their descendants and among the inheritors of those who practised it –long after it has formally ended. (http://www2.ohchr.org/english/issues/slavery/rapporteur/index.htm)
Additionally, the ascendacy of individualism left its mark on the authors.
In political philosophy, the individualist theory of government holds that the state should protect the liberty of individuals to act as they wish as long they do not infringe on the liberties of others. This contrasts with collectivist political theories, where, rather than leaving individuals to pursue their own ends, the state ensures that the individual serves the whole society. The term has also been used to describe “individual initiative” and “freedom of the individual.” This theory is described well by “laissez faire,” which means in French “let [the people] do” [for themselves what they know how to do]. This term is commonly associated with a free market system in economics, where individuals and businesses own and control the majority of factors of production. Government interferences are kept to a minimum.
Individualists are chiefly concerned with protecting individual autonomy against obligations imposed by social institutions (such as the state). Many individualists believe in protecting the liberties of the minority from the wishes of the majority. Thus, individualists oppose democratic systems without constitutional protections existing that do not allow individual liberty to be diminished by the interests of the majority. These concerns encompass both civil and economic liberties. For example, they oppose any concentration of commercial and industrial enterprise in the hands of the state, and the municipality. The principles upon which this opposition is based are mainly twofold: that popularly-elected representatives are not likely to have the qualifications, or the sense of responsibility, required for dealing with the multitudinous enterprises, and the large sums of public money involved in civic administration; and that the “health of the state” depends upon the exertions of individuals for their personal benefit (who, “like cells”, are the containers of the life of the body). (http://en.wikipedia.org/wiki/Individualism)
This is why the authors of the Constitution made sure of two things that:
- The system of government they set up could be dynamic (change as needed) with a peaceful transfer of power and well-defined line of authority and reporting structure, and
- The rights of all citizens, particularly the minority, could not be infringed by the will of the majority.
That’s why we have a representative form of government with a well-articulated Bill of Rights. It prevents what we now call “government by polls,” of the Rule of Man in majority “group” form. In a pure democracy, a vote to determine the will of the people really only reflects the will of the majority — the minority never wins unless they can build a coalition with other minority groups. If the rights of ALL individuals in a society cannot be protected, the result is a tyrannical rule by the majority based on current public opinion, which lends itself to instability and uncertainty.
The authors of the Constitution knew the difference between the Rule of Law and the Rule of Man. They understood that a pure democracy was not practical. The Rule of Man — whether by one man or a group of like-minded men — is fickle and unstable — there is no consistency or continuity between rulers. There is usually not a peaceful transfer of power. Living under the Rule of Law means our founding fathers set up a system with integrity — one that could maintain continuity of government during the transfer of power and consistency regardless of who sat in the White House Oval Office or which party was in power at any particular moment in time.
The best example of how ruling by opinion polls can undermine equal rights and equal protection under the law — in a society supposedly based on the Rule of Law — is California. I believe that it would have been unthinkable to our Founding Fathers that any state vote could infringe on a minority’s rights, as has the defeat of California’s Prop. 8, which has been held up by the California Supreme Court.
The loss of the sanctity of the writ of habeas corpus (requiring a warrant for arrest, search and/or seizure of persons or property) is the most alarming, because it also involves the loss of due process, meaning that the government (thanks to the Patriot Act) can deem individuals to be enemy non-combatants, arrest them, detain them without arraignment or trial, torture them, and even refuse to give them access to an attorney until they have signed a confession written by the government. Our current president, who campaigned on restoring individual rights that had eroded during the last administration, is now considering the concept of preventive detention, where our government can arrest and detain individuals who have not actually committed an act of terror, but are considered to be potential terrorists. One of the cornerstones of our system of justice was the concept of “innocent until proven guilty” [by a jury of peers].
How can a constitutional scholar and professor not be troubled by the concept of detaining someone BEFORE they commit a crime or even make an attempt to commit a crime?
Oscar Wilde once said “Life imitates art far more than art imitates Life.” (http://www.brainyquote.com/quotes/keywords/imitates.html) In the case of this issue, Steven Spielberg’s film, Minority Report, may be closer to our new reality than we think..
When I was growing up, the Soviet Union and Red China were the “boogey-men” who committed these types of human rights atrocities. America was the country that protested this kind of treatment of individuals. Now we torture detainees. Now we are the “boogey-man.” I have not doubt that, in years to come, our behavior in reaction to terrorism will be deemed as a shameful time for Americans, much like our treatment of Japanese Americans during WWII.