By What Authority
The Honest Husbandman ...
Repairs the banks, but does not usurp upon the stream.
by Richard Grossman (January 2001)
A Meditation on our Society's Arming Property with the Rights of Persons
Appreciating the Corporate Seizure of the 14th Amendment: Thoughts Provoked Whilst Browsing through Howard Jay Graham's "Antislavery Backgrounds of the 14th Amendment"1
Quoting Thomas Cooley that Abolitionists (or "immediatists") were "pioneers in the wilderness of political morality," 202 Graham writes: "Their enduring contribution to our political theory and fundamental law ultimately was a theory of a paramount national citizenship which embraced the concept of due process and equal protection of the laws." 202
He writes that "the cardinal premises of liberty, freedom and equality had begun to express themselves in a new criteria of arbitrariness. The rise of humanitarianism, the spread of philanthropy, broader social sympathies, more enlightened views of racial differences — all continued to undermine notions of inferiority. In the mid 19th century, Weld declared, it was incumbent that 'persons be treated according to their intrinsic worth, irrespective of color, shape, condition or what not.' Negroes and slaves were 'persons.' It was degrading to other persons if they were denied human status and refused the rights of personality [RG emphasis]. An ethical principle was at stake...'We claim these rights for all men,' declared the Rhode Island Anti-Slavery Society, 'because the golden rule of righteousness requires us to do so. We claim them for all men, because we would have all men claim them for us.' " 201
"What was slowly changing and continuing to act reflexively on men's social outlook was their power of observation, their psychological insight, their innate sympathy and social consciousness." 202
So, here we have creative rethinking sustained across generations, building upon ancient principles, exploring not only "Biblico-moral and ethico-religious, natural rights arguments" [Graham 202], but also English common law's 'law of the land — due process' concepts. The direction was towards embracing more and more people within these principles; towards limiting the power and authority of the few over the many.
All this intellectual and psychological work, this educating, this propagandizing, this provoking by word and deed (all through the 19th century up to the Civil War, slaves were rebelling and escaping, whites were helping slaves escape, men and women were preaching, teaching and practicing defiance of this fundamental WRONG, often at the risk of life and limb) created a body of ideas, of values, and finally of laws.
For a mass of people (not all, certainly, but for large numbers), ways of thinking about right and wrong, normal and abnormal, fair and unfair, were changing. Graham: "In this double identification — first of the common law with the natural law, then of slavery with the crimes of false imprisonment and assault and battery — one gets valuable insight into the initial aims of the abolitionists. Clearer too are the ingenious cross-substitutions and transfers which presently were to quicken use of due process and equal protection....Slavery simply was institutionalized false imprisonment, an invasion of the Negroes' inalienable right to liberty by their masters' collective 'lawless' acts..." 204
"Racial discrimination was repugnant both as a breach of equality and as a breach of protection. Because it was a breach of protection, it was also a breach of equality, and because it was a breach of equality, it was thereby an even greater breach of protection. Nor was this simply circular reasoning. It was rather the outcome of the triple-barreled major premise which posited the purpose of all government to be the protection of inalienable rights bestowed upon all men by their Creator. Once that compound premise was granted — and in the sixty years since 1776 virtually all Americans had spoken as if they granted it — the abolitionist's conclusions were unassailable. The great object and need were simply to 'abrogate all unjust, unequal laws and customs,...and restore the supremacy of all just and equal laws within the jurisdiction, over all persons alike...' " (Olcott, 205).
So over these sixty years, a motley of the enslaved and formerly enslaved, of women with rights denied and of men variously free and less free, refined and redefined basic ideals of liberty, equality, of government as defender of all people's inalienable rights.
They traveled light years beyond the slavery-impacted, aristocracy-drenched, property-obsessed, rabble-fearing Founding Fathers2 in their discussions and actions around oppression, liberty, law, human rights, constitutions and governance.
Graham: "A quest for law, for the protection of law, and for an end to 'outlawry' and 'despotic power' and 'irresponsible control' — the odious distinguishing badges and incidents of slavery — these ends Stanton lumps together in the concept 'citizenship.' This is not the constitutional lawyer's concept, but simply 'citizenship with the dignities and immunities of manhood.' Here one grasps the ideal that shaped the popular meaning of 'citizen' and ultimately determined its choice and content. That ideal was 'emancipation into law' and 'the equal protection' thereby and thereunder of all persons and citizens. 207
OK. All this human work, all this thinking and rethinking and struggle in village squares, all this challenging of illegitimate authority (and the sacred texts), all these dramas of life and death (slaves beaten and killed, John Brown's raid, pain and suffering, heroism and glory, fear and loathing...) added up to cosmic changes in public consciousness...and to the 13th, 14th, and 15th amendments.
And with the 14th A being apotheosized, as Muhammad Ali might say, as The Greatest. A wonderful HUMAN story.
It is hard for people today to appreciate the damage done by judges who armed aggregations of property with due process and equal protection of the law.
Can we calculate what happened to the human psyche and our collective unconscious when men of property and their corporations seized the harvests planted by valiant Abolitionists of generations past?
Can we describe what happens when our culture arms property with due process and equal protection?
There is no noble story here. No "pioneers in the wilderness of political morality." Only usurpations committed by operatives for hire, robber barons and men in black robes.
They usurped the evolving essence of what it means to be human.
Judicial utterances perverted humanitarian history into gobbledygook legalizing pretense and wrongfully appropriated authority. They enabled the flowering of powerful old language, artifices, governing mechanisms and traditions for the purpose (once again, alas, of course) of the few taking life, liberty and property; denying human rights; destroying the Earth.
Pervert, bastardize, subvert, corrupt, seduce, debauch, distort, twist, misapply — can such words convey what a few men did, what our corporate culture is reproducing at home and around the world?
For men of property to seize and subvert histories, values, and language, no real struggle was necessary. It's a pisser. They faced no soul searching. No challenges to authority. No risk to life and limb.
They merely oiled the friendly gears of governance built by their propertied forebears. With the wealth stolen from men and women workers, from animals and plants, and from the bowels of the Earth, they had oil galore to hire mouthpieces, to write briefs, to lie — to instruct men at bench and bar to pronounce the values of the land, to declare the law of the land.
Today our nation's institutions, and our most honored and respected people, do not question this history. Doubts among the rabble is seen as heresy.
Property, wielding the 14th Amendment and the Bill of Rights, easily orders the police, courts and armed forces — not to mention newspapers, radio, television, universities, public schools — against logic, common sense, and the majority.
So yet once more the rabble risks life and limb, status and honor, to contest the country's sacred values and fundamental rule of law.
"If a state permits inequality in rights to be created or meted out by citizens or corporations enjoying its protection it denies the equal protection of the laws...What the State permits by its sanction, having the power to prohibit, it does in effect itself." - Congressman William Lawrence, 1874.3 2004
People in other eras had a word for all this: usurpation. Given all the wrongful seizings, occupyings, oustings, arrogatings, inflictings, appropriatings, & encroachings through the ages, it is not surprising that such a word was created, and was well known — and used from horticulture to governance.
The unabridged Oxford English Dictionary devotes several columns to usurpation. Here are excerpts of definitions, and of uses by poets and political activists:
"...to seize for use; to appropriate wrongfully to oneself (a right, a prerogative);
"...That pretense of Right, which the violence of the Sword hath usurp'd upon other men's Estates." 1674
"...The almighty fiend whose name usurps Thy honor." Shelley, 1813
"...to intrude forcibly, illegally or without just cause...to assume or arrogate to oneself (political power, rule, authority) by force...to claim unjustly...
"...The Acts of power usurped...are not acts of public authority." Hobbes, Leviathan, 1651
"...to assume unjust rule, domination, or authority over...
"...to occupy or take the place of physically, to encroach or tread upon...
"...Ivy usurps the laurel's place of growth." Byron, Manfred, 1817
"...to take possession of, occupy, assume predominance in (the mind, bosom), etc.
"...When tumult...usurp'd authority's just place..." Cowper, 1781
"...to take or hold possession of (something belonging to another or others) by sleight or force; to appropriate by ruse or violence; to steal...
"...to make use of (something not properly belonging to own's own estate); to use or employ wrongfully...
"...to assume or claim (a name or title) unduly as one's own; to arrogate, to take to oneself, to assume, bear; to exercise, practice or inflict (injury, cruelty, etc.), to put into act, impose...
"...to supplant, oust, or turn out (a person); or deprive (one) of possessions;
"...to claim or make pretension; to assume or attempt arrogantly to be or do something; to act or play the usurper...
"Sensual appetites...usurping over Sovran Reason, claimed Supreme Sway." Million, Samson Agonizes, 1667
"...to assume authority or domination over; to become superior to...
"The honest husbandman...repairs the Banks, But does not usurp upon the Stream." Cleveland, Rustick Rampart, 1687
How about "slander":
"...a false or malicious statement or utterance intended to injure, defame, or constitute detracations on the person about whom it is made...false report, rumor...malicious misrepresentation to defame or injure; calumny; defamation; discredit, disgrace."
in law: "writing of a treasonable, seditious or immoral crime...act or crime of publishing such a statement or writing." as a verb: "to spread defamation." [originally, "a little book, a short treatise or writing"]
Today, lawyers, law schools and men of property keep showering upon us malicious misrepresentations, calumnies and defamations.
Protected by the Rule of Law, men of property usurp all species' rights, authorities and pleasures.
In collusion with public officials they libel and slander a planet, a solar system, a cosmos.
Enabled by our Constitution, they oust all species by sleights of hand and by force.
They deprive life and place of pasts and futures.
in Graham, Everyman's Constitution, Madison: WI Historical Society, 1968 (orig., WI Law Review, 1950)
Cornell University political scientist Clinton Rossiter, in his 1961 New American Library mass circulation paperback book edition of The Federalist Papers, began his introduction with these words: "The Federalist is the most important work in political science that has ever been written, or is likely ever to be written, in the United States. It is, indeed, the one product of the American mind that is rightly counted among the classics of political theory. This work has always commanded widespread respect as the first and still most authoritative commentary on the Constitution of the United States....It would not be stretching the truth more than a few inches to say that The Federalist stands third only to the Declaration of Independence and the Constitution itself among all the sacred writings of American political history....It is valued not merely as a clever defense of a particular charter, but as an exposition of certain timeless truths about constitutional government...." ad nauseam.
Congressman Lawrence was referring to the equal protection clause in the 14th Amendment, and its purpose of making all men equal before the law.
Graham: "The pioneering antislavery strongholds along the Ohio, the Tuscarawas, the Muskingum, the Scioto and the Great and Little Miami, and along Short and Paint Creeks were among the first to be converted to militant immediatism by Weld or later by the "Twelve" and the "Seventy." Still later they constituted the heart of constituencies which elected Giddings, Bliss, Bingham, William Lawrence and others to serve as representatives in Congress." p. 199