From September 26, 2010
Time Line of the Development of Law
Athens development of democracy
Rome development of democracy/empire
Code of Justinian
Canon Law/New Testament
Protestant Reformation/Martin Luther
Age of Enlightenment
British Common Law
American Constitution/ The Federalist Papers
French Rights of Man
United Nations: Universal Declaration of Human Rights
Law, as with society, did not just sprout out of the ground one day when the founding fathers had nothing else to think about. The development of our law, our Constitution, is a by-product of millennia upon millennia of human civilization. As we learned how to live with each other from hunter-gatherer to agrarian society to industrial revolution, so too did society development, create, curtail and implement laws that suited its purpose of existence. Law is the history of human development. We can see within the study of law how people thought of one another, how they thought of business, how they thought of foreign policy and the importance of peace versus war. It is not a little thing to study the development of law. For our Constitution and way of life is based upon the trials and errors found in the human experience.
Legal, as with societal development, starts with the very basic of defining right from wrong. Hammurabi is well-known and best understood as the progenitor of the written code. Before him everything was the whim of the monarch, not that that wasn’t also the rule with Hammurabi, but with Hammurabi at least most people did know what they were getting into. It was the first time in history that rights, obligations and duties were outlined for society. You knew what you had to do and the punishment that would be meted out if you did not tow the line. It was a unique version of society for its time and quite frankly set the pace for our society today. From then on any society that wished to continue to exist and develop wrote down their rules of continuity and requirements for membership. Besides the immense benefit this was to the people at the time, it has provided historians and legal scholars with a look into the worlds of ancient peoples and ancient ideals.
What we find in many respects is that the human experience is not that different today than it was eons ago. People wanted the same things. They wanted the right to live their lives as they saw fit. It was the reason for wars, revolutions and upheavals. Of course, wars were usually started by maniacal rulers seeking glory, but that trade, wealth, and ironically water access was the main reasons for most ancient wars. It is why the Levant, what we call Israel today has been the centerpiece of history for all time. It is the most strategically placed piece of real estate on the planet. The Levant is right smack in the middle between east and west, the regulator of some of the most lucrative ancient and modern seaports, and trade routes and whomever controls the Levant controls the Jordan River Valley, the controller of the water system for the entire area. Many may say the conflict has mostly to do with religion, but when it does come down to it, it has more to do with water than anyone truly cares to think about.
Now why is this important? It is important because our Constitution was not written in a vacuum. While the Constitution and its interpretation is uniquely American, it derives from law wholly not American. It derives from British Common Law. The founding fathers went to war against Britain not because they wanted Independence (at least at the onset of hostilities), per se, but because they were deprived of their rights as natural-born Englishmen. There was no great societal upheaval when the war was over. Our society remained intact. There was no overturning of the old guard. That old guard (such as it were for a people that had existed for a little over 100 years) is what started the Revolution.
Imbued with the ideas of the enlightenment, well versed in Voltaire and Rousseau our founding fathers sought to bring to the United States the benefits of the humans who had come before them. They combined the European enlightenment concepts with American individualism and derived the US Constitution. They took from their experiences as European bred gentlemen ideals and challenges that they had faced while developing an infant society of the United States. History needs to remember that the Constitution was not the first attempt of governance by the United States, but the second. The Articles of Confederation, a total disaster came before. It was from these Articles that Madison, Jay and Hamilton were able to develop a system of government that for us, works until today.
But the Constitution never was a document devoid of the acknowledgement of the role of human history. It is this acknowledgement that this document was the best at that time. The authors purposely left so much of it vague because they knew that our society would continue to develop, change and mold itself with each new and passing generation. The authors of the Constitution knew that humans continue to grow and that in order for our society to continue we needed to be able to change our basic governing documents if necessary.
So why is this truly important? It is important for many reasons, not least of all is the acknowledgement that our Constitution comes from ideals not wholly American. We have taken the ideals that had been developed in a foreign land and twisted and turned it into a purely American philosophy, but it did not start off as an American zygote. The ideals of the US Constitution were the already born offspring of European liberal philosophy that had been taken and changed to resemble its American parent. It is as if the ideals were adopted in its infancy and raised by those that did not give birth to it. An argument, as you will, for nurture versus nature.
Much has been said over the past week because of Justice Breyer’s comment about curtailing first amendment freedom of speech rights in the case of the Florida nutcase. But the argument that we should not look outside ourselves to find the answer is not a good argument, for our Constitution is born of ideas not formed in the US. We have changed it and made it our own, but the basic concepts are not American. Now what does this mean for the Justice?
Many have derided the Justice for his comments. Truthfully it is quite the inane proposition that freedom of speech should be curtailed anywhere because some violent individuals don’t like what you do. We need to remember that this is the same court that upholds flag burning as a symbol of free speech. Of course, you may say that that is because what the founding fathers were doing in protecting free speech was to protect political speech, and perhaps you are right. However, as the US developed it has become recognized that freedom of speech encompasses all forms of speech and that the government is hard pressed to curtail any form of speech. In fact an interesting little point about Justice Breyer’s comment about shouting fire n a crowded theater, he forgot the word, “falsely.” It is quit the huge word too. For the idea behind that decision was that you cannot start a panic for no reason, however, shouting fire in a crowded theater to warn people to escape a danger is not prohibited by law.
Furthermore, there is the discussion of “fighting words” as a curtailment of freedom of speech. When you purposely speak to cause societal upheaval or societal discord that may be prohibited by the government. However, in the case of Skokie, Illinois, where a group of neo-Nazis wanted to speak in a town inhabited largely by Holocaust survivors, the court held that that was not enough of a provocation of violence. When the virulently anti-Semitic Nation of Islam head, Louis Farrakhan, wanted to speak in NYC , a city with the second largest Jewish population in the world, and the City tried to stop him, the Court held that there was not enough certainty of violence that speech should be curtailed. It is not easy to curtail speech in the United States. Now the question then becomes why should we curtail speech in the United States because someone thousands of miles away will become violent?
Apart from the apparent sense of blackmail and the idea of self-righteousness by the openly and virulently anti-Semitic Islamic world (here, here, here) that they would decry the burning of the Koran, the question becomes why do they have a right to infringe upon what we do here within the borders of the United States? The Justice talked about the reach of the Internet and the responsibilities of Universal citizenship and sensibilities when making decisions. But then the questions become, why is it that we must be the ones to curtail our belief system? What makes their system superior? Is it the violent nature of their system that begets them what they want? Do you allow the bully to override your sense of self? Do you allow the bully to destroy your rights to be a human being and to do and say what you please? What would we do if they erupted in violence here in the United States? Would we curtail our entire system of rights so that they might not be offended? The concept of freedom is that at times you are offended. The concept of freedom is that quite frankly you need to be a grown-up.
Now, this is not to say that the lunatic in chief in Florida was right in what he was going to do by any stretch of the imagination. However, he had a Constitutional right to do it. But the larger question becomes did he have a moral and ethical right to do it? This is the same argument used in the Ground Zero Mosque debate. No one says that the Mosque builders do not have the right to build, but sometimes rights need to be tinged with morals and ethical reasoning as well.
While I do not agree with the Justice that our rights here in the United States are subject to the whims of other nations, particularly nations that are totalitarian, theocratic and devoid of the same respect for human rights, however, I do think he poses an interesting issue. What are our obligations in a world that is for all intents and purposes flat? What sensibilities are we required examine? What if any legal perspectives do we need to change, if any? I wonder if the Justice has been caught up in the idea that Americans are Islamophobic because we don’t want the GZM built (despite the fact that anti-Semitic crimes out number anti-Muslim crimes 6 to 1. Nobody thinks the US is an anti-Semitic nation). Or is he truly just thinking outside the box.
However, I think for the Justice, the greater question should be, why is it we, the Untied States that has to change our way of thinking and perceiving the world? Why does the United States have to accommodate those that refuse to accommodate others? Why do we as the United States have to accommodate those that do not follow the simple international agreement of the Declaration of Human Rights, never mind the US Constitution? Why is it the United States that has to kowtow to those who are diametrically opposed to our way of life? Why do we allow these particular individuals to set the discussion? Why do we allow these violators of human rights to define right and wrong? Is this just political correctness, once again gone amok? Or even worse, is this political correctness being allowed to threaten our very Constitutional foundations?
Personally I think we need to change nothing about our democracy, but that is just me channeling Voltaire speaking to Rousseau;
I may not agree with what you say, but I shall defend to my death your right to say it.