FW: The Economist: Why and when to go in

Mark Jones jones.mark at SPAMbtconnect.com
Thu Jan 11 13:28:06 MST 2001

Jose G. Perez wrote:

> Maybe it is easier to take the U.S. Constitution seriously from far away.

Well, I do think one should take it seriously.

>The plain fact is that
> the constitution as written expired by the mid-1800's because of the
> irrepressible conflict between the North and the South. All the famous
> compromises and so on of that epoch were simply the nullification of the
> carefully crafted document, and the civil war represented its being torn to
> shreds.

I understand where you are coming from, but I do think there is a risk of throwing
the baby out with the bath water. We should not try to be *too* hard-headed and
gritty about these things. We should hold them to account, take them at their word,
even if we know and they know that the whole thing is an exercise in mass hypocrisy
and self-deception. But in fact it's much *more* than that. The fact that US
democracy is often more honoured in the breach, and that US law is a witches' broth
which has its real origins in feudal customs like trial by ordeal in Anglo-Saxon
England, does not mean that we should wash our hands of the elemtnary idea of
justice, equity and of counting the goddamn votes. That's a mistake. I am not in
favour of cynicism, despair and political apathy. There's too much of that about

If you think US law is a pig in a poke, think about where it came from. It's usual
these days to mock King John and the rebel barons -- what were these guys doing,
wandering around in pointy shoes and chain mail and looking like gigantic animated
pan-scourers, anyway? What was all this Magna Carta stuff?

Nobody any more has the faintest idea what the phrase 'English Common Law' actually
means, and it's usual to pour scorn on all that fair play stuff and to talk instead
about schematics of Roman law and the Code Napoleon, or better still, about Kant and
Hegel and the _gaze_ of the law etc.

In Norman times there were two kinds of law: the law which noblemen applied to
themselves, and the law which they applied to their underlings, those scurvy Saxon
knaves and vilains. After Magna Carta, however, this began to change and people got
the idea that 'the Law' ought to apply 'in common' to all, equally. Hence Common
Law. Actually, nothing like this had happened before in history (AFAIK). Thus, and
the Victorians knew this, English Common Law was the foundation of all subsequent
notions of civil rights, equality before the law etc. However, when you start to
scrutinise English Law, be it Acts of Parliament or manorial registers or pipe
rolls, then you may start to wonder. In practice (and Common Law is nothing if it be
not custom and ye olde practice), English common law is a quaint and indecipherable
old thing.  Maybe the French _philosophes_ were right after all, and one should
start out with a code or a Bill of Rights or a written constitution or something.
Common Law is astonishingly opaque stuff, and tends to be celebrated in the absence
rather than presence of any obvious commitment to Universal Rights.

Take the Strange Story of Thomas Elderfield for example. This is true and dates from
about 1240 and it tells you something about the state of English jurisprudence soon
after Magna Carta (1215 AD). I'm posting this separately, and apologise for the
tangential nature of it, but anyway. It is hard to see in this tale of a man who
loses his trial by ordeal, and loses much more besides, any sign of incipient
awareness of human rights, let alone of Christian charity. Nevertheless, I humbly
submit that Common Law, with its fixation on the equality of the individual subject
before the law, is a strangely powerful and enduring historical reality which has
permeated the subconscious of what used to be called the Anglo-Saxon Race (I am
Welsh, and you are Hispanic, but even we have bought into it, I'm sure). Viewed
rightly, even Thomas Elderfield, missing testicles and all, somehow exemplifies it.

The obvious looniness of much of US law and custom and practice, the astonishing
criminality and blatant dereliction of duty often found (evidently) among US law
officers, courts, judges, etc, is one of the great glories of US social history and
a fecund source for cine scenarios. Nevertheless in popular consciousness, the
enduring notion of common law, which probably reached its apotheosis in the society
of the Frontier, ie the Old West, still towers over all these shenanigans. (BTW, it
is no coincidence that the rebel barons most keen on Magna Carta and the idea of
equality before the law, were the Marcher Lords who lived in the frontier world of
Wales and England, and who enjoyed precocious conceptions of right and freedom, even
while cheerfully massacring the Welsh aborigines and being massacred by them).

Now, the greatest symbol and iconic distraction of US folklore, the very glue of
mass popular consciousness, is the Presidency. The US president is a guy like any
other. The greatest US presidents, men like Andrew Jackson, were born and raised in
log cabins which they built themselves with their own hands. They stood foursquare
between soil and sky and they emblematised all that is right and good and virtuous,
and their wives wore gingham. One thing they definitely could not do was to steal
the office of President and get away with it. That is one debauch too far. Once that
sort of thing happens it is only a step away from Caligula ripping the guts from his
own mother in order, as he put it, to see for himself the birth canal thru which
such a godhead could arrive in the world. I do not know if Mrs Bush wears gingham
skirts. Perhaps she wear rhinestones and cowgirl boots. As you say, I live a long
way off and am looking thru the wrong end of the telescope. But I still say and
maintain that this time the buggers went too far, and they'll pay for it.


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