It must be owned that Mr Locke, and other theoretical writers, have held, that “there remains still inherent in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them: for when such trust is abused, it is thereby forfeited, and devolves to those who gave it.” But however just this conclusion may be in theory, we cannot adopt it, nor argue from it, under any dispensation of government at present actually existing. . . So long therefore as the English constitution lasts, we may venture to affirm, that the power of parliament is absolute and without control. — William Blackstone, Commentaries on the Laws of England
Blackstone’s view of Parliament brings to mind a speech I delivered years ago titled “Who’s in Charge?” in which I argued that most corporate organization charts are grossly misleading. They typically show authority flowing upward through layers of management until it converges on the board of directors and, ultimately, the CEO. He or she is portrayed as the final authority—the one who pays no rent, the one whose decisions are absolute. But, in a free market, the CEO, like the rest of the company, is just another subordinate. At the top of the chart should be a box reserved for “Customer.”
Imagine a company staying in business without customers. Imagine a government continuing to rule without the cooperation of the governed.
In most cases, a dissatisfied customer can take his business elsewhere or do without the product or service. With government, there is no opt out. Elections, if they’re allowed, never change the fundamental relationship of rulers to ruled. There will be taxes, there will be corruption of the money, there will be favors to dispense to those who keep the engine of state governance running. The government, in this case the state, will be the last man standing, even if the man has nothing to eat.
The sovereignty of the consumer is derived from the free market in which people can choose and act on their choices. They can say “no” to a salesman or a once-in-a-lifetime offer. Or they can travel thousands of miles to hire someone to do a job the way they want it. They part with their money voluntarily, if at all.
What happens to people when they ponder political issues? Whatever happens, it’s not entrepreneurial. They take certain paths that control their options. Elections? They vote and wait for the results. Whatever the outcome, they serve to certify the state’s legitimacy—taxes, legal counterfeiting, war, suppression of speech the regime doesn’t like. The state, not you, is sovereign.
Oddly enough, the country’s founders opposed all of this. Will Americans be celebrating the founders or the status quo on the Declaration’s 250th anniversary?
Not All Jurists Bowed to the State
Blackstone wasn’t the only English legal authority. Sir Edward Coke (“Cook”) was another, and—while serving as Chief Justice for the Court of Common Pleas in 1610—he ruled in favor of common law over Parliament in what became famous as Dr. Bonham’s Case. Thomas Bonham, M.D. had been imprisoned for practicing medicine without a license, and Coke agreed with the majority opinion that Bonham had been wrongfully imprisoned, even though he had violated a statute. Under common law one needed only the consent of the patient to practice medicine, not a license.
Unfortunately, the decision did not void any statutes nor did it serve as a precedent. The decision angered the king, and parliamentary sovereignty was never seriously threatened. In 1613, Coke was removed from the Common Pleas.
But Edward Coke rose from the dead a century and a half later and helped inspire the Revolution. With smuggling rampant in New England, Britain began enforcing some of the Navigation Acts by granting customs officers general writs, meaning the power to search anywhere without stating a reason. In February 1761, James Otis, Jr., along with 63 Boston merchants, challenged the writs in what became known as the writs of assistance case. As a young lawyer, John Adams witnessed the case amid a packed courtroom.
Defending the Crown, Jeremiah Gridley, Otis’s tutor in law,
. . .admitted that the writs had provoked widespread antagonism by infringing on the common rights of Englishmen, but he defended the principle of a search warrant. How could a state protect itself against foreign enemies or subversives at home? Which was more important, protecting the liberty of an individual or collecting the taxes efficiently? Gathering public money must take precedence.
When Otis took his turn, he slammed his former teacher with arguments that have survived the ages, though seldom mentioned today. The British constitution? A farce, since it meant only and whatever parliament said it was. “Every man lived in a state of nature,” he said. “Every man was his own sovereign.” Both true and radical in the extreme. Otis continued:
No other creature on earth could legitimately challenge a man’s right to his life, his liberty and his property. That principle, that unalterable law, took precedence . . . even over the survival of the state.
Take a deep breath—he wasn’t saying “national security” is paramount. He was saying your rights and mine were.
In his four-hour oratory, Otis invoked several pithy phrases, including “a man’s house is his castle” in defending his right to privacy. He even declared that liberty was the right of all men regardless of color.
Long after his term as president, John Adams recalled the courtroom scene in a March, 1817 letter to William Tudor:
Otis was a flame of fire!—with a promptitude of classical allusions, a depth of research, a rapid summary of historical events and dates, a profusion of legal authorities, a prophetic glance of his eye into futurity, and a torrent of impetuous eloquence, he hurried away every thing before him. American independence was then and there born; the seeds of patriots and heroes were then and there sown, to defend the vigorous youth, the non sine Diis animosus infans. Every man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance. Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain.
Otis was not merely objecting to a search warrant. According to common law, judicial precedent established a legitimate body of law, which, in Blackstone’s interpretation, meant Parliament, not the king, was the ultimate legislative authority. In other words, common law was law only if Parliament permitted it to be law. On this point, Otis rejected Blackstone’s position and, in effect, supported Coke in saying acts of Parliament were subordinate to the natural rights of people.
While these thoughts percolated among independence-minded colonists, they received a radical upgrade on January 10, 1776 when Paine’s Common Sense hit the streets.
Paine argued:
“The will of the king is as much the law of the land in Britain as in France, with this difference, that instead of proceeding directly from his mouth, it is handed to the people under the formidable shape of an act of parliament. For the fate of Charles the First hath only made kings more subtle — not more just.”
In other words, the king was still in charge, not Parliament.
“Were the impulses of conscience clear, uniform and irresistibly obeyed, man would need no other lawgiver; but that not being the case, he finds it necessary to surrender up a part of his property to furnish means for the protection of the rest; and this he is induced to do by the same prudence which in every other case advises him, out of two evils to choose the least. Wherefore, security being the true design and end of government, it unanswerably follows that whatever form thereof appears most likely to ensure it to us, with the least expense and greatest benefit, is preferable to all others.”
In other words, we need to protect our property and for that we surrender a part of our property to protect the rest. We need a specific service, and for that we pay for it. But for Paine, and virtually everyone else, this service was a government service, not a market service.
Ideologically, Americans went from Blackstone, to Coke, to Otis, to Paine, to the Declaration, to winning the war for independence (the latter two with Paine’s help). The undoing of this unprecedented victory for human liberty began in 1786 with the exploitation of a government-caused revolt called Shay’s Rebellion. Liberty has taken the hit ever since.
What exactly will Americans be celebrating this year, the past or the present?
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