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Lawrence Glazer

Lawrence M. Glazer

A Government of Laws

November 24, 2017

The phrase “a government of laws and not of men” was popularized by founding father John Adams in a series of articles published in 1774 undeer the pseudonym “Novanglus.” The brilliant curmudgeon would later serve as chief drafter of the Constitution of the Commonwealth of Massachusetts, which was adopted by the voters in 1790. That Massachusetts Constitution included the phrase:

“In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.” [emphasis supplied]

The Massachusetts Constitution is today the oldest written constitution in continuous use in the world*, and it still includes the phrase quoted above.

When the clause is read in its entirety, it appears that the phrase “government of laws and not of men” was originally intended to refer to the separation of powers of the three branches of government.

But that was 2-1/4 centuries ago; since then the phrase has taken on a somewhat different (though related) meaning.

While there is no single “official” definition, It has become generally accepted in the legal world that courts’ decisions are to be governed by the Constitution and common law (i.e., legal precedent), rather than public opinion or the dictates of powerful public officials. As conservative intellectual Roger Kimball succinctly expressed it:

“Generally, that famous phrase—a government of laws not men—is taken as naming a prophylactic against capricious or arbitrary rule by individuals. Even the sovereign, it was said, is subject to the law. Recognition of that fact was at the center of what made Magna Carta ‘magna.’ ” (Roger Kimball in the blog “American Greatness”)

Advocates of various political causes often attempt to use the phrase in support of their positions, turning it into something it is not.

It is not, for example, legislation, which naturally changes with the times. It is court decisions and court decisions only. (Adams’s use of the word  “laws” probably made this confusion inevitable.) Likewise, it does not encompass the effects of changing social customs, which bring about changes in the law without corrupting it. A modern example is the changing popular attitude toward gay marriage, today accepted by a majority of Americans, reflected in turn by court decisions which would have been unthinkable just forty years ago.

The clearest explications of our fealty to the law – or lack thereof – arise when large sections of the public express a passionate desire for an outcome which the law does not permit. Two examples from recent history illustrate this.

In 1999 a divorced mother, along with her boyfriend and the child of her dissolved marriage joined a group fleeing Cuba in a rickety boat. The boat and eleven of its thirteen  passenngers, including the mother,  did not survive the trip, but the five-year-old child, Elian Gonzalez, was found alive, floating on an inner tube by passing fishermen, who brought him to Miami.

Relatives of Elian’s Cuban family had emigrated to the U.S. years before, and they took him in. But Elian’s father, with whom the boy had a close relationship, demanded that the U.S. return his son to him in Cuba.

Before long the dispute had become a cause celebre. Elian’s U.S. relatives asserted that his life would be much better if he were raised in America. They were soon joined by prominent Florida politicians, anxious to attract the support of the large community  of Cuban emigres in Florida.

There never was much doubt that the law required  Elian’s return to his father, but the Florida relatives pettitioned the courts to let him stay. Eventually, both state and federal courts deecided that the Miami relatives had no rights in the matter and the boy must be returned to his father in Cuba. When the Miami relatives refused to cooperate, armed U.S. INS agents forcibly removed Elian from their home and he was re-united with his father. The law prevailed.

On February 25, 1990, 27-year-old Terri Schiavo suffered  a cardiac arrest at her home in St. Petersburg, Florida. An EMR team was dispatched to her home and were able to restore a heartbeat, but her brain had been deprived of oxygen too long and suffered severe damage; she was in a comotose state  from which she was unable to recover.

After several months without improvement, the physicians changed their diagnosis to  “persistent vegetative state”. Several years of therapy and experimental treatments were tried, without result.  In 1998 her husband, Michael, petitioned a state trial court to be allowed to remove her feeding tube, which Florida law allowed. Terri Schiavo’s parents intervened to oppose the petition. After hearing evidence from  both sides, the judge ruled that Terri Schiavo would not have wished to have her life prolonged in her present condition, and authorized removal of the feeding tube.

The case made national news and set off a firestorm, eventually involving Florida Governor Jeb Bush, the  U.S. Congress and President George W. Bush. The Congress enacted and the President signed a new statute removing jurisdiction to the federal courts. Years of litigation followed.

Finally, in 1999, after virtually every state and federal court had ruled in favor of Terri’s husband and the U.S. Supreme Court declined to take up the case, the feeding tube was removed and Terri Schiavo passed away thirteen days later, on March 31, 2005. Once again, under enormous public and political pressure against it, the law prevailed.

Plenty of other examples exist, including our current President’s rage at independent courts that allow suits against his “university” and impede his efforts to ban immigration from Muslim-populated countries.

Are there exceptions – – cases where we fall short of adherance to the law?  Undoubtedly.  That’s one reason why we have appellate courts. Of course even they occasionally fail (Bush vs. Gore was a special case, worth its own column). But on the whole our federal and state judges do an admirable job, day in and day out, of giving us a genuine government of laws.

*The Massachusetts Constitution was adopted seven years before the United States Constitution and served as a structural model for the federal document.

Lawrence M. Glazer is the author of Wounded Warrior, a recently published biography of former governor and Supreme Court justice John Swainson. He is also a retired Ingham County Circuit Court Judge and former legal advisor to Gov. James J. Blanchard.

November 22, 2017 · Filed under Glazer



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