Lapham’s Quarterly Spring 2018: Rule of Law, review pt. 2 & final

[CATEGORIES: Literature, Lapham’s Quarterly, Reading, Book Review]
[Click HERE to see my previous posts referencing Lapham’s Quarterly.]
[Some of LQ’s contents are available free.]
[L.Q. cover, quotes, and images from L.Q. Spring 2018: Rule of Law]
[New to Lapham’s Quarterly? See the standard notes at the end of this review. After 40+ LQ reviews I jump right in.]

“Therefore, since brevity is the soul of wit,
And tediousness the limbs and outward flourishes,
I will be brief…”  (From Shakespeare’s Hamlet, 1602, Act 2, Scene 2, Page 4)

I will make every effort.

The main body of any LQ issue is called Voices in Time and most often has three sections. This issue they are Call to Order, Reasonable Doubt, and So Ruled.  As usual I find the naming too clever by half, or I not clever enough to relate the contents to the title.

YOU dear reader, and this time I do mean YOU, are fortunate this issue in that many of the finest essays and extracts are available free online.  You may forestall your subscription yet again.

Lewis Lapham’s Preamble (always insightful) and the very fine, contemporary, full-length essays in Further Remarks at the end can be found here:

https://www.laphamsquarterly.org/rule-law#essays

I found William Hogeland’s full essay Separation Of Power to be exceptional.

As a contemporary essay it mentions current president Trump and highlights the independence and success of the judiciary branch in thwarting some dictatorials from the executive branch.

While I’m not as vile, vehement, or vitriolic  as some in expressing my dislike of Trump I certainly harbor no sentiment for him either.  I consider his presence a less than silent scream from the vox populi (an electoral college majority if not a numerical one) that people want REAL… CHANGE.  Be careful what you wish for was never more applicable.

Let me digress a moment on majority rule (a rule of law?) that other people seem to want so desperately.  I agree with Ayn Rand:

“If we discard morality and substitute for it the Collectivist doctrine of unlimited majority rule, if we accept the idea that a majority may do anything it pleases, and that anything done by a majority is right because it’s done by a majority (this being the only standard of right and wrong)—how are men to apply this in practice to their actual lives? Who is the majority? In relation to each particular man, all other men are potential members of that majority which may destroy him at its pleasure at any moment. Then each man and all men become enemies; each has to fear and suspect all; each must try to rob and murder first, before he is robbed and murdered.”  “How to Read (and Not to Write),”
The Ayn Rand Letter, I, 26, 4

“The American system is not a democracy. It is a constitutional republic. A democracy, if you attach meaning to terms, is a system of unlimited majority rule; the classic example is ancient Athens. And the symbol of it is the fate of Socrates, who was put to death legally, because the majority didn’t like what he was saying, although he had initiated no force and had violated no one’s rights.

Democracy, in short, is a form of collectivism, which denies individual rights: the majority can do whatever it wants with no restrictions. In principle, the democratic government is all-powerful. Democracy is a totalitarian manifestation; it is not a form of freedom . . . .

The American system is a constitutionally limited republic, restricted to the protection of individual rights. In such a system, majority rule is applicable only to lesser details, such as the selection of certain personnel. But the majority has no say over the basic principles governing the government. It has no power to ask for or gain the infringement of individual rights.”  “Textbook of Americanism,””
The Ayn Rand Column, 89

Back to Hogeland, Trump, and change.  Hogeland discusses how the intention of the Founding Fathers for independent branches of government was more for protection of property rights for the relative elitists of that time.  He talks about Federalist Paper 78 as their argument for an independent judiciary but points out that their reasons then may have been different than ours now.  He posits that the 13th, 14th, and 15th Amendments may have been more influential on our present day circumstances.

A few insights from Hogeland’s essay:

John Adams’ favorite definition of a republic, “a government of laws and not of men.”

“Trump administration’s dizzying incoherence… total disdain… for the restraints legally imposed on the office.”

“Not that our government has always or even often enough operated according to the rule of law. The current president has taken violation to a degree of heedlessness so grotesque that we can’t be sure he knows he’s violating anything.”

“It’s not surprising, therefore, that the founders’ Constitution—the main body, ratified in 1788, and the first twelve amendments, ratified 1791–1804—has become a focus of optimism about the rule of law in the public discourse of resistance to Trump.”

“But the constitutional element receiving the most attention in this crisis has to do with how we govern law itself, a rule of law for the rule of law: the federal judicial branch’s independence from the executive and legislative branches.”

“Anti-Trump forces rallying round judicial independence are focusing not on Adams but on Alexander Hamilton.”

“Hamilton’s Federalist 78, the most detailed of those essays, is now receiving much public appreciation.”

“Confusion begins in misconstruing the essay’s purpose. Hamilton was writing neither a meditation on judiciaries nor a guide to ours.”

“Context for that effort involves Hamilton’s and his colleagues’ perception that in judicial independence lay a mechanism not for promoting democracy but for the reverse: checking what seemed to be potential dangers posed by the lower house of the proposed national legislature. Hamilton’s persistent concern was to defeat what he and others of his class called the “leveling” impulse: efforts by lower orders to equalize society economically by undermining the value of property and investment, and thus, went the prevailing line of elite thought, destroying liberty itself.”

I suggest reading it before the others, here:

https://www.laphamsquarterly.org/rule-law/separation-power

My second most favorite piece this issue was the extract by Oliver Wendall Holmes:

https://www.laphamsquarterly.org/rule-law/times-change

His very brief extract says we must study history and use law as it has evolved as we can’t create afresh during our short time of life, but we must assess the applicability of the old on our current new time.

”The rational study of law is still to a large extent a study of history.”

”It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.” (P. 136)

Jose Hernandez’ poem was insightful and eloquent:

“Since you’re choosing what questions you fancy you’re choosing the thorniest kind, but that doesn’t worry me so much and I’ll answer you in my own way:
the Law is made for everyone but it only rules the poor.

The Law is a spider’s web — that’s how I see it, though I’m ignorant. It’s not feared by the rich men, and never by the ones in command — because the big flies break out of it and it only catches little ones.

The Law is like rain — it can’t fall the same everywhere.
The one who gets wet may grumble, but it’s a simple matter — the Law’s like a knife, it doesn’t hurt the one who’s holding it.

A sword is what people call it* and this name suits it well.
The ones who control it, they can see whereabouts they’re going to cut — but it falls on whoever’s underneath and cuts without seeing who.

There are plenty of learned Professors and I don’t doubt they know a lot. I’m just a poor rough black man and don’t understand much of this —
but every day I can see their law is like a funnel, with a big end and a small.”

It is available on pages 57 and 58 here:

http://sparrowthorn.com/MartinFierro_PART_TWO.pdf

HELP!

Other good works are available online:

Nuremburg Tribunal:

https://www.laphamsquarterly.org/rule-law/cold-comfort

John Paul Stevens:

https://www.laphamsquarterly.org/rule-law/money-talks

Abraham Lincoln:

https://www.laphamsquarterly.org/rule-law/mobocracy

Anne Boleyn:

https://www.laphamsquarterly.org/rule-law/plea-bargain

John Marshall:

https://www.laphamsquarterly.org/rule-law/land-our-land

I spent more time than usual on Wikipedia, finding more information on the many authors with whom I was not familiar.  Great stories.

Read, dear people.  Read.

The standard notes:
1. Since L.Q.’s inception with the Winter 2008 issue its size is always 7″ x 10″ x 1/2-17/32″. It is white-covered, printed on high quality paper throughout, with richly printed reproductions of fine art from time immemorial, and 221 pages up to a page or two of addenda at the back.
2. Each issue contains extracts about the title topic from great authors and thinkers spanning all recorded history. It begins with an eloquent, to a fault, preamble/introduction by editor Lewis Lapham. The main body is called Voices In Time and contains 3 or 4 subcategories of the topic with about 25 extracts per section. Noteworthy sidebars, side quotes, and depictions of appropriate art from the ages are liberally distributed throughout. Several extended contemporary essays bring up the rear. There are several other small sections every issue (Among the Contributors, Conversations, Miscellany, ‘The Graphic’).
3. Per the L.Q. website:
“Lapham’s Quarterly embodies the belief that history is the root of all education, scientific and literary as well as political and economic. Each issue addresses a topic of current interest and concern—war, religion, money, medicine, nature, crime—by bringing up to the microphone of the present the advice and counsel of the past.”
4. I encourage all to subscribe to this fine publication. It is a rich supplement to anyone’s reading.