America Was Different

Purpose: I had the good fortune to grow up American but I’ve also had the sometimes gut-wrenching experience of observing how the rest of the world has to live. Before examining the difference, let us first acknowledge that America has some gut-wrenching history too: the enslavement of African-Americans; the genocides of Native-Americans; detention camps for Japanese-Americans, and numerous other oppressions committed by our own government and tolerated by us, even approved by some. These events show that America can be the same as the rest of the world. But despite these tragic episodes there was also something different about America, something good. It’s that difference that I want to identify.   Some threads of the Truth that I want us to remember, and build on, to advance toward the ultimate Truth: all problems (war, crime, poverty, etc.) solved.

In this article the term “Founder” means someone whose influence made America different; the term “American” means someone who is different, someone who holds “these truths to be self-evident”.

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Part 1. The Difference

In 1776, America was just a collection of colonies on a patch of planet Earth. Then they declared independence and listed their reasons. Within 60 years, with only average resources, a relatively small population, and a fledgling infrastructure which would be decimated by two wars, these former colonies became the hope and dream of mankind and the economic power of the world. Why hasn’t any other country ever prospered like this? What made America so different?

In 1776, some of America’s Founders wrote the difference down in black and white, and pledged to support that difference with their Lives, Fortunes, and their sacred Honor. They declared that difference to the world so there would be no question what that difference was. They wanted the world to know that from 1776 on, America was going to be different. They wrote:

“We hold these truths to be self-evident:”

self-evident:

“Evident without proof or reasoning; that produces certainty or clear conviction upon a bare presentation to the mind;” American Dictionary of the English Language, Noah Webster,1828.

 

“that all men are created equal;”

This is our First Truth, the Foundation that everything American builds on. By 1776, the idea that rulers were mortal representatives of God, and so had “divine right” to rule, was completely discredited. The idea that some had authority to rule over others was replaced by a model called the State of Nature, governed by a Law of Nature. This idea holds that man is created naturally free, to order his affairs as he sees fit without asking leave of any other man. Every individual is born to this equal station among their fellow man. No one wants to subordinate their life to the will of another, and likewise, no one should want to impose their will on another, for we are all of the same human nature. [Please read Chap. 2 “Of the State of Nature” p. 189, (only 10 pages!), of the classic that changed the world: Two Treatises of Government, John Locke, 1690. Free download at Google ebooks.  https://books.google.com/books?id=K5UIAAAAQAAJ

The Old World has its kings and slaves but Americans welcome everyone as equals. We don’t recognize any mortal authorities, we don’t have any superiors, we answer to the Creator and our conscience. We have prejudices but so does everyone else. Prejudice is not what makes us different, it’s not what defines us as American. It degrades our credibility as Americans but ultimately we know the Truth, so we strive to love our neighbor as ourselves.

“that they are endowed by their Creator with certain unalienable Rights;”

unalienable:

“Not alienable; that cannot be alienated; that may not be transferred;”   American Dictionary of the English Language, Noah Webster, 1828.

There are certain rights that are inherent qualities or characteristics that we have, simply because we are human; we are created that way. For example, it is in our nature as human beings to communicate with each other. Therefore, communication is a natural, proper, or right characteristic, or more simply, a Right. Also: we form families, and groups; we observe the world around us and consider our proper actions in it; on our own initiative we engage in constructive and entertaining activities; and avoid, or resist if necessary, those actions we consider improper. All Mankind is endowed with these Rights; they may be interfered with, but they cannot be removed from human nature, they are unalienable.

 

“that among these are Life, Liberty, and the pursuit of Happiness.”

Just as matter is endowed with its physical characteristics and the laws of motion, man is also endowed with Life and the laws of human nature. And being in the image of the Creator, man also has free will and the ability to reason so he can determine the natural laws governing his decisions as he survives in life. It is a maxim (accepted truth; principle) of law, that human nature is designed so that happiness is the reward for successfully observing this natural law. Departures from natural law are caused by clouded reason, due to: passion, prejudice, illness, or ignorance. And these departures are unhappiness. Therefore, it is essential that man be honest with himself and others, and that he has the Liberty to exercise his own reason, so long as his departures do not interfere with the rights of others. That man should obey this natural law, or in other words, that he should pursue Happiness, is the foundation of Ethics and all the laws of man, and any law of man in conflict with this higher law is a mistake and is invalid. [Paraphrased from: Commentaries on the Laws of England Vol. 1, Section II, p.38, Of the NATURE of LAWS in General, William Blackstone, Professor of Law, Oxford, 1765. Please read (3 pages!) what every student of law understood as legal fact in 1776.]  http://books.google.com/books?id=GuoKAAAAYAAJ

Continuing with the specific example of communication-we exercise this characteristic/right by speaking, writing, music, etc. It is a maxim, of law and reason, that to infringe on the means of exercising a Right is to infringe on the right itself. One means of exercising the right of communication is the printing press. Therefore, per the maxim, we consider that the Liberty of building/buying/operating “the press” is also an unalienable right. Furthermore, it is in our nature to improve our own and others’ condition in life, by working, helping, and exchanging with others, to create wealth, acquire property, earn an education, and so on. The aims of these efforts are not rights, they are not endowed by the Creator, we must pursue them with our own efforts. Therefore, Americans claim no right to wealth, education, etc., but we do recognize the inherent right to pursue these things if that is what makes us happy. No king or any other mortal has the lawful power to grant, take, alter, tax, license, or in any other way infringe, on any right that was endowed by the Creator. From where would anyone get such authority?

 

“That to secure these rights, Governments are instituted among Men,”

A government is an organization which uses force to achieve its purpose. There are two kinds of force: defensive, and offensive.   Because rights are the natural and proper conduct of mankind, securing these rights is the defensive use of force. The offensive use of force violates rights and is called crime. There is one, and only one, lawful purpose for governmental force: to secure rights (defensive force). Any other use of government is, by definition, criminal (offensive force).

 

“deriving their just powers…”

It is instinctively understood by all men of all nations in all times, that there are unalienable rights inherent in all men, and that they should defend themselves against violations of these rights. It is also understood, and expected, that men defend the rights of others. This inherent right of defensive force, for self and others, is sometimes a group effort. For those times when support of the group is needed, human societies have developed traditions for applying this force standardly, justly, for all. These traditions are based on natural law and were called the common law (because it was common across the land), or, the law of the land. This law is senior to, and distinguished from, the king’s law, or legislation, which is “laws” made up at various times by various rulers. The common law is mankind’s attempt to discover and organize the natural laws governing the group’s use of defensive force, to secure rights and resolve crimes. The organization instituted by man to administer this law, government, is not endowed by the Creator with any rights. In order to allow a government to lawfully assist in securing his rights, man delegates the use of some of his defensive force. (Remember, the right of defense is an inherent quality of human nature, it is unalienable; delegation of this right does not and cannot diminish or transfer the individual’s right of defense.) A just power then, is the government’s exercise of the delegated right of defense.

 

“…from the consent of the governed;”

Historically, governments have had one of two origins:  they either used offensive (criminal) force to subdue and rule a population of subjects, or a free people instituted them by consent to help secure their rights.

The supreme authority, the source of a government’s power, is called the sovereign. Governments exercise certain powers which are delegated to them from their sovereigns, but the sovereign remains, by definition, the supreme authority. Europeans are resigned to the idea that “rulers” are sovereign and people are “subjects”, subject to the “ruler’s” power. Americans know that all men are equal; there are no “subjects”. Man is inherently self-determined and rules his own life. No adult, unless under duress, would say to another, “Rule me, take care of me”. The idea is contrary to human nature. In America we hold this Truth: the individual is the sovereign, and we sovereigns delegate some of our power to a subordinate government. We then expect it to assist us in creating an environment where rights are secure so we can live free and pursue happiness. Other than that, Americans expect it to stay out of the way.

 

Part 2. Securing the Difference for Posterity

Having delegated some of the use of force to a government, how do we ensure that force is not used offensively? This question has tested Man’s ingenuity throughout history, and all history has shown that positions of power attract corrupt and incompetent persons as well as statesmen. There is, however, a method which has been effective. This method was an ancient Saxon tradition, and it was included in the Magna Carta of 1215 to help secure the liberties listed in that document. The Magna Carta (Latin for Great Charter) was a list of demands that the barons (nobles below the king) forced the tyrannical King John to agree to. The Magna Carta hardly restricted the king’s legislative (law-making) power; it mainly reconfirmed the king’s traditional duties to observe the law of the land. But this Saxon tradition provided enforcement, and when John was forced to agree to it he asked why the barons did not simply take the kingdom. When the Pope read the Magna Carta, he asked if the barons intended to dethrone the king.  Centuries later Theophilus Parsons, who would become Chief Justice, Massachusetts Supreme Court, said this method empowers the people to resist tyranny “…without being driven to an appeal to arms.”  (In Convention, January 23, 1788).  And Thomas Jefferson wrote, “…I consider [this method] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” (Letter to Thomas Paine, dated July 11, 1789). This method is continually sabotaged, by corrupt or perhaps well-intentioned but honestly naïve officials. The Saxons called this method the judgment of peers; today we call it the trial by jury.

What does the trial by jury have to do with dethroning kings? How does it resist tyranny without taking up arms?  How does it anchor a government to its constitution? Obviously it’s not about the guilt or innocence of a citizen. It’s about the law.

The primary duty of the juror in a criminal trial is to judge the justice of the law itself, and if the juror considers that law, or its application in the case, oppressive, then to judge that law invalid, and to find the accused not guilty of violating it, regardless of the facts. For example, if a homeowner is charged with illegal possession of a weapon, because he shot a burglar while defending his home with an unlicensed gun, the jury can easily see that no crime (violation of a right) was committed, judge the law invalid, and find the homeowner not guilty. Or an elderly couple is charged with buying inexpensive medicine in Canada and smuggling it back home; the legislation of tyranny is endless. Jury selection must be random of course, to prevent the government from packing the jury with those whom it expects to render the “proper” verdict, which would effectively emasculate the jury and turn the trial into a mere fact-finding exercise. Jury packing became common during slavery because juries, when randomly selected, refused to convict anyone for helping slaves escape. In order to enforce the Fugitive Slave Act, corrupt judges began questioning potential jurors to determine if they would judge the facts only, or if they were opposed to slavery and would judge the law. Jury packing gained still more popularity with corrupt judges during alcohol prohibition when juries, if randomly selected, refused to convict anyone for using alcohol. Again, it cannot be overemphasized that in a criminal case, the primary and paramount purpose of the trial by jury is to decide if the law itself should be enforced, in that particular case. This effectively slaps the crown off any would-be tyrants by preventing their oppressive legislation from being imposed. Before applying any law against an individual, the government must figuratively kneel before the source of its power, and request unanimous permission from 12 of its masters. If only one master (that’s you, a sovereign American) believes the charge is unjust and votes not guilty, the government cannot enforce its tyranny. But where an actual crime (violation of a right) was committed, and the evidence is sufficient, a unanimous verdict is easily obtained (unless the jury was packed), for all men are essentially agreed that a violation of a right is wrong.

In America the government was only delegated the temporary use of force, to hold someone in custody until the sovereigns decide whether the charge is just and should be enforced. The citizens, if they are randomly selected as jurors, remain the supreme authority over the government.

Jury:

“…juries…decide both the law and the fact in criminal prosecutions.” American Dictionary of the English Language, Noah Webster, 1828.

“It is not only his right, but his duty, in that case [of the judge instructing the jury to judge the facts only, and not judge the law], to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” John Adams, Feb 12, 1771. Read this Founder’s words in The Works of John Adams, vol. 2, p. 161-162, in The Online Library of Liberty:  http://lf-oll.s3.amazonaws.com/titles/2100/Adams_1431-02_EBk_v6.0.pdf

[you have] “…a right to take upon yourselves to judge of both…the law as well as the fact in controversy.” U.S. Supreme Court Chief Justice John Jay’s instructions to a jury in 1794. Please read this Founder’s instructions!! Search online for: ”Georgia v Brailsford 3 US 1”. Note: this was a civil case, judging the law was not the jury’s primary duty. Still, these are wise instructions that everyone should read before serving on any jury.

For a quick study, see: the William Penn case; Bushel’s case; and the John Zenger case. In your judgment, which judges were honorable? Which, if any, were fools/tyrants? What did each think about the rights of jurors? Do you see a pattern?

For another historic example, see the impeachment trial of Samuel Chase, the only Supreme Court Justice ever impeached. I’ll summarize to make a point, but you should refer to this link: http://digital.library.unt.edu/ark:/67531/metadc30341/ Gales and Seaton. The Debates and Proceedings in the Congress of the United States, Eighth Congress, Second Session. Washington D.C.. UNT Digital Library.

The first Article of Impeachment [p. 85 in the above link], charged him with “…endeavoring to wrest from the jury their indisputable right to hear argument, and determine upon the question of law, as well as the question of fact, …[this conduct is] as dangerous to our liberties as it is novel to our laws and usages, …to the disgrace of the character of the American bench…in open contempt of the rights of juries, on which, ultimately, rest the liberty and safety of the American people.”

At his impeachment trial on Feb 4, 1805 [p. 101], his counsel described the situation. He had restricted the defense in arguing the law, and he admitted this may have been an error in judgment, but he explained why he thought it was justified in this case. Then he said [p. 107-108], “He [Chase] well knows…the power of juries to decide on the law as well as on the facts in all criminal cases. This power he holds to be a sacred part of our legal privileges, which he never has attempted, and never will attempt to abridge or to obstruct.” After hearing his justification (and probably taking into consideration his previous service to country, and his prior reputation for defending the rights of juries) the Senate forgave and acquitted U. S. Supreme Court Justice Samuel Chase, a Founder, and Signer of the Declaration.

In 1805, it was an impeachable offense to interfere with the jury’s purpose, even if you were a Founder! The trial by jury meant something when it was written into the Constitution, and the Constitution has never been amended to alter or repeal that original purpose so it is legally still in effect. No act of the legislature, no executive order, and no Supreme Court decision has the lawful power to amend the Constitution; that can only be done through the lawful amendment process. The purpose of the trial by jury as the Founders understood it, and as ratified by the people, and by the States, is still the supreme law of the land. This purpose is not anyone’s opinion; it is indisputable legal fact and any “authority” who denies this fact is perhaps not being truthful, but more probably, honestly lacks knowledge of the subject. As long as we (including judges) continue to believe them, the enemies of freedom will continue to deceive us. Do some research of your own, read the facts with your own eyes, and never let a judge or any other politician (or this author!) bluff you about the purpose of jury duty. If anyone does try to bluff you, ask for a source. If their “source” is written, ask them if it amended the Constitution. If they quote “authority”, do you see the pattern?  The Founders are counting on you to stay vigilant, and so is posterity.

For a legal and historical analysis, see An Essay on the Trial by Jury, Lysander Spooner, 1852. Spooner was a lawyer and abolitionist. Free download, Google ebooks. https://books.google.com/books?id=mm935Sdx9xcC

Remarks by King John and Pope Innocent III are paraphrased from The History of England, p. 252-254, Laurence Echard, 1707. Free download, Google ebooks. https://books.google.com/books?id=tghDAAAAcAAJ&vq

Theophilus Parsons is quoted explaining why he believes the people will be secure from tyranny with the new Constitution.  Elliot’s Debates, vol 2, p. 94.  Free download, Google ebooks. https://books.google.com/books?id=-zkOAAAAIAAJ

Thomas Jefferson is quoted expressing his concerns that the new French government may fail, in part because the French had no trial by jury to keep the Judiciary in check. The Writings of Thomas Jefferson, vol 3, p. 71.   Free download, Google ebooks. https://books.google.com/books?id=Om9XAAAAYAAJ

From a 17^th century pamphlet for English jurors: “As juries have ever been vested with such power by law [to judge the law, as well as the fact], so, to exclude them from, or disseize them of the same, were utterly to defeat the End of their Institution.” [Emphasis in the original]  The Englishman’s Right, p. 18, John Hawles, 1680. Hawles later served as solicitor-general to King William III (of William and Mary). Read his historic explanation of the original intent of the trial by jury, why jurors must judge the law. Free download, Google ebooks: https://books.google.com/books?id=_AJXAAAAcAAJ

And from a more recent Founder, “…one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that ‘An unjust law is no law at all.’ …To put it in the terms of St. Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law.” Letter from Birmingham Jail, Dr. Martin Luther King, Jr., 1963. Online at: http://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html

Before 1776, there were countless heroes, most of them edited from history, who were hung, beheaded, burned at the stake, and crucified for declaring the Truth for their fellow man. They succeeded. America’s Founders heard them, gathered their truths, and again declared the only philosophy that works. They did not fully implement this pure philosophy; it was radical even for them and they were greatly outnumbered by politicians who wanted to keep some Old World institutions. But they made a great start at the federal level and we’ve made tremendous progress in some ways. We know there are no slaves now, but we’ve forgotten that there are also no kings. Our modern day “kings” are mercilessly legislating us into the ground (for our own good, they tell us), and their officers are mercilessly enforcing their legislation (just following orders).  And the purpose of the trial by jury has been forgotten! Even so, our First Truth, our Foundation, is much more powerful than it was in 1776 and we’re in a position right now to explode into the future.

We don’t have to remember these truths, we can become European again, forget we were ever American. What will we leave our posterity?   If we want to be American again, if we want to be American, we’ll have to hold these truths to be self-evident. We’ll have to remember:

1. What unalienable rights are;
2. The purpose of government;
3. The primary purpose of the jury in a criminal trial.

We know the Truth works. Let’s build on the Foundation we have, and this time let’s go all the way. And this time, let’s all do it together.

Mankind is watching us, hoping. Governments are glaring at us; and up there, the stars are waiting.