William Dameron Guthrie was a distinguished American lawyer. He was educated in Paris, London, and at Columbia Law School. He appeared in major cases before the Supreme Court. He was a Storrs Lecturer at Yale and for many years a Professor of Constitutional Law at Columbia. He was, I think, a Republican, and a consultant to the Rockefellers. He is therefore entitled to be called a jurist, a fine lawyer and thinker from the great juristic nation that gave the world Holmes, Cardozo, and Pound. He was plainly of the elite.
In 1916, Guthrie published a collection of addresses and speeches under the title Magna Carta. I bought it two years ago for the 800th anniversary, but it was only recently, that I looked at it properly.
The first address in the book was given in 1915 on the 700th anniversary of Magna Carta. In my experience, Americans, or at least the sane and sensible ones, show more veneration for the achievement of Magna Carta than either we or the English do. As the author remarked, ‘it was Magna Carta that established the greatest of all the English constitutional doctrines, that of the supremacy of the law over every official however high.’ The king is under the law because the law makes the king. Professor Guthrie then referred to the article in the Charter that said that the Crown would ‘appoint as justices, constables, sheriffs, or bailiffs only such as know the law of the realm and mean to observe it well’. That provision is of course flouted whenever the government makes what are called ‘political appointments’ to the judiciary.
But the comment that really caught my eye is on the first page.
This ceremony must again emphasise the great truth that everything which has power to win the obedience and respect of men must have its roots deep in the past, and that the more slowly institutions have grown, so much the more enduring are they likely to prove.
Although labels are very dangerous, that proposition does seem to stand for much of what I understand the word ‘conservative’ to stand for. It is certainly a proposition that I would embrace.
The second address concerned The Mayflower Compact, that means so much for Americans, with its reference to ‘just and equal laws.’
Surely, this simple, comprehensive and lofty language, in the style of the Bible open before the Pilgrims, embodies the true and invigorating spirit of our constitutional polity as it flourishes today.
The third address is in my view the most important for our purposes today. Its title is ‘Constitutional Morality.’ It begins as follows.
The text of this address is taken from Grote’s ‘History of Greece.’ The historian, reviewing the state of Athenian democracy in the age of Cleisthenes, points out that it became necessary to create in the multitude, and through them to force upon the leading men, the rare and difficult sentiment which he terms constitutional morality. He shows that the essence of this sentiment is self -imposed restraint, that few sentiments are more difficult to establish in a community, and that its diffusion, not merely among the majority, but throughout all classes, is the indispensable condition of a government at once free, stable and peaceable. Whoever has studied the history of Greece knows that the Grecian democracy was ultimately overthrown by the acts of her own citizens and their disregard of constitutional morality rather than by the spears of her conquerors.
In my view, the collapse of faith in government that we are witnessing across the Western world is in large part linked to the failure to embrace what Professor Guthrie calls ‘constitutional morality’ – and in my view in each of the UK, the US and Australia, it is the parties who like to style themselves as conservative who have been in the vanguard of this collapse. They have abandoned all ‘self-imposed restraint’.
On the next two pages of that address, this learned jurist makes observations about relying on the ‘people’ that go to the very heart of our present problems.
We are meeting again the oldest and strongest political plea of the demagogue, so often shown to be the most fallacious and dangerous doctrine that has ever appeared among men, that the people are infallible and can do no wrong, that their cry must be taken as the voice of God, and that whatever at any time seems to be the will of the majority, however ignorant and prejudiced, must be accepted as gospel. The principal battle cry today seems to be that, if the people are now fit to rule themselves, they no longer need any checks or restraints, that the constitutional form of representative government under which we have lived and prospered has become antiquated and unsatisfactory to the masses, and that we should adopt a pure democracy and leave to the majority itself the decision of every question of government or legislation, with the power to enforce its will or impulse immediately and without restraint.
We find many political and social reformers advocating an absolute legislative body, whose edicts, in response to the wishes, interests, or prejudices of the majority, shall at once become binding on all, no matter how unjust or oppressive these edicts may be.
Remember that those remarks were made when Lenin, Mussolini, and Hitler were barely clouds the size of a man’s hand. Today we are looking at a building called the White House and at a scarcely literate rogue bully who tweets contempt at a federal court for suggesting that the President of the United States should be under the law, a proposition established for the Crown of England more than 800 years ago. This federal court decision could unhinge this president because it shows that he is not as powerful as he thinks he is.
How are the mighty fallen. It took us 800 years to build this edifice, but the evidence of last century shows that it can all fall over in a hurry.
Only God knows what the good William Dameron Guthrie would make of all this.
Poet of the month: Dante, Inferno, Canto 1.
Then was the fear a little quieted
That in my heart’s lake had endured throughout
The night, which I had passed so piteously
And even as he, who, with distressful breath,
Forth issued from the sea upon the shore,
Turns to the water perilous and gazes;
So did my soul, that still was fleeing onward,
Turn itself back to re-behold the pass
Which never yet a living person left.
After my weary body I had rested,
The way resumed I on the desert slope,
So that the firm foot ever was the lower.
And lo! almost where the ascent began,
A panther light and swift exceedingly,
Which with a spotted skin was covered o’er!