Law is a priestly craft…. Societies are not transformed…They evolve…. although abstract thinking matters, it contributes less to the development of societies than instinct and experience.  (Jonathan Sumption, The Challenges of Democracy)

The white people who occupied America were religious zealots who had a covenant with their God.  This enabled them to treat their Promised Land as a source of profit so that their God would never stand between them and the dollar.  It also meant and that they could treat the original inhabitants of the land in the same way those who had first occupied the first Promised Land had been treated in what they called the Holy Land.  The union of God and the dollar was complete from the start.  You see it on their currency.  Then they further debased their humanity by introducing slavery.  They have never recovered.

They revolted when the mother country said they should pay their way.  (It was a spoiler for what the United States now says to Europe.)  The War of Independence was in part a savage civil war that England’s traditional enemy, France, bailed them out of.  (And in so doing, bankrupted themselves and brought on their own revolution in 1789.  It is an open question whether France has ever recovered.)

The issue of slavery led to another civil war, this time one that was far more brutal.  Lincoln saved the Union, but too many white Americans have never accepted the verdict. 

The still divided nation came late into two world wars, but the Great Republic finally found its heroic place in the world by leading its reconstruction after World War II. 

Sadly, it has not won a war since, and a line of mediocre leaders and bruising inequality and racial insecurity has led to a government intent on repudiating most of what was decent in its past.  The United States is withdrawing from the world and forfeiting all trust.

What went wrong?

I Deception and ideology from the start

The Declaration of Independence of the United States was of, by, and for, white men, and not men of any other colour.  Opinions were asserted in 1776 that would find no place in America more than two hundred years later. 

The Indians were written off as savage mass murderers: ‘He [King George III] has incited domestic insurrections amongst us and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian savages, whose known rule of warfare is an undistinguished destruction of all ages, sexes and conditions.’ 

So, an entire people is dismissed, Old Testament style, by reference to race.  It may remind some of incidents in the Holy Land today, and whatever else might be said of Indian war-making, they did not have the same means for dealing out death that their enemies had – they were for the most part just trying to protect their own people and land; and no one could ever accuse the Indians of genocide.  This, I think, is what psychologists refer to as ‘projection.’

The reference – or, as the Declaration was issued, the lack of reference – to African Americans is no better.  Jefferson had drafted a clause making the fatuous suggestion that the English – well, they said King George III – had instituted a trade of slavery, frustrated attempts to stop it, and then excited the blacks to rise up against ‘us’ – and ‘we’ were by implicit definition white. 

All this is expressed in the most colourful language: ‘He has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the person of a distant people who never offended him.’  ‘This piratical warfare, the opprobrium of infidel powers, is the warfare of the Christian king …. He has prostituted his negative for suppressing every legislative attempt to prohibit or restrain this execrable commerce ….’  And so on.  Mercifully, Congress struck all this nonsense out.  But they left as it was the phrase ‘all men are created equal’ and that statement was, to their certain knowledge, untrue in their minds. 

Well, this evasion, if that is the term, on the subject of slavery might be expected from a slave-owner from the largest slave-owning state.  But what was not to be expected was the lack of candour on the causes of the revolt.

The American Declaration of Independence tracks the form of the English Declaration of Rights.  It records the conduct complained of to justify the termination of the relationship.  (This is what common lawyers call ‘accepting a repudiation’ of a contract.)  The English did so in short, crisp allegations that were for the most part devoid of the oratorical colour that we find in the American Declaration.  (The first draft was prepared by a junior barrister, John Somers – whom no-one has heard of.)

How does the American Declaration of Independence go about this process?  Before it gets to an allegation that the king maintains standing armies, which is a relatively specific charge, it made ten allegations of misconduct that were so general that they would not be permitted to stand today as an allegation of a breach of the law on a conviction for which a person might lose their liberty.  The fourteenth allegation, which is hopeless, but which appears to be an attempt to invoke the English precedent, is that: ‘He [King George III] has abdicated government here.’  (During the English revolution in 1688, James II had fled, throwing the Great Seal into the Thames.) 

Then there is the fifteenth allegation: ‘He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.’  If that allegation of plunder and murder – the old word was ‘rapine’ – had been seriously put, you might have expected to see it before an allegation of abdication – and before every other allegation.  The eighteenth allegation relates to the Indians. The nineteenth was the allegation relating to slavery and which was struck out.  Those drafting the Declaration were not evidently keen to get down to the subject of people of another race.  Or tax.

Let us put to one side that all these allegations are made against the Crown, and not the British government, and that none of these allegations refers to any statute of the British government.  There is no history of the American Revolution that has been written that says that the American colonies revolted from their subjection to the British Crown for any of the reasons that are set out in the eighteen clauses of the Declaration of Independence.  The primary reason that history gives for the revolt of the colonists was the imposition, or purported imposition, of taxes upon them by the British parliament – when those who were being taxed had no direct representation in the parliament levying the tax.  Most divorces are about dollars, and this one was no different. 

But British taxation is only mentioned once in the Declaration of Independence.  That reference is fallacious.  It is against the King.  The Glorious Revolution made it plain that the King could not impose a tax in his own name.  (The only reference to the English legislature comes when those drafting the documents scold the English for ‘attempts by their legislature to extend an unwarrantable jurisdiction over us’).  Given that the 1688 revolution secured the supremacy of the English parliament over the English Crown, and made it transcendentally clear that only the English parliament could levy a tax on its subjects, it may have seemed a little odd for Jefferson to be suggesting that the American colonies were somehow subject to the English Crown, but not to the English parliament.  ‘Jurisdiction’ is a word that has come to bedevil American jurisprudence, and it looks like the problem may have started very early.

Tax is one price of membership of a commonwealth.  It is inherent in the language of the ‘common weal.’  A childish resentment of that brute fact of life has disfigured the Great Republic since its birth.  And it reached its apogee under Trump and his rich mates.

The American Declaration of Independence is therefore of limited historical value in explaining why the American colonies proceeded as they did, or what values of humanity they proposed to pursue in their future.  The tragic truth is that the barefaced lie about slavery would haunt the young republic until it was thought to have been expunged by the death of more than six hundred thousand Americans in the Civil War, and by the moral courage, intellectual genius, and cool hand of Abraham Lincoln, the one unquestionable gift of the United States to humanity. 

Then, one of the great tragedies of the Union is that the South did not in substance accept the verdict of the Civil War.

The new republic was born under cover of deceit, and a many splendored deceit at that.

2 Failure of responsible government

Australia adopted the Westminster System of government from the English.  As its name suggests, the English invented it.  And the one fundamental of our (Australian) jurisprudence is that the English common law is the source of the authority of the Parliament of Westminster.  The Westminster System was in large part in place by 1776, when the American colonies seceded.  They deliberately declined to follow it – which is not surprising given the lethal enmity between the two sides.

For us, government is seen to come in three parts.  The Parliament makes the laws.  The executive branch carries them into effect.  And the judges rule on any disputes about the working of the laws. 

The king is in theory the head of the executive, but there are four parts of the Westminster System dealing with the working of the executive that are fundamental to our notion of ‘responsible government’.  And an essential part of that is that the de facto head of government, the Prime Minister, and the rest of the Cabinet and ministry, sit in Parliament and are answerable – responsible – to Parliament.  Having the head of government outside Parliament is barely comprehensible to us.  (As would having a CEO of a public company not a member of the board of directors – at least in the way that Australian and British corporations trade.)  The System provides as follows.

First, the king only acts on the advice of his Ministers.

Secondly, those Ministers – some of whom comprise the Cabinet – must have the confidence of the Parliament – and they must resign if they do not.

Thirdly, there is a permanent non-political civil service chosen and trained to give effect to the wishes of government, the members of which are under the supervision of a Minister – the Ministers of course being the members of parliament and who have the confidence of parliament.

Fourthly, the Ministers are responsible to the Parliament for the working of the civil service under them.  If the civil service makes a mistake that cannot be dismissed as trifling, the Minister must account to Parliament for the error – and depending on its gravity, either apologise or resign.

That at least is the theory.  The last is at best wobbly for us now, but you see immediately just how different things are in the U S.  Since this point about responsible government is central to this paper, it may be as well to set out what A V Dicey says:

….it is now well established law that the Crown can only act through Ministers….who not only become morally but legally responsible for the legality of the act…. Hence, indirectly but surely, the action of every servant of the Crown, and therefore in effect of the Crown itself, is brought under the supremacy of the law of the land.

This would cause wild surmise in Washington.  Would it be possible for someone with the history of Donald Trump to head a government in Australia?  Would it be possible for something like the collection that Trump calls its cabinet to be installed in Australia?  Either idea is absurd.

Perhaps because in 1776 the U S was moving away from a monarchical government, its constitution invests much more power in its president than do similar constitutions where the monarchy is retained.  But the Founding Fathers had a taste for ideology that they certainly did not get from the Mother Country.  The English have no taste for theory or doctrine in the common law or governance.  They look only at experience, and ask the simple question: Does it work? 

The English constitution turns on the legislative and political sovereignty of parliament.  The parliament makes laws and ministers must respond in parliament for the formation and execution of policy.  The United States does not share that notion of ministerial responsibility.  Its ministers are answerable to their president not to Congress.  That to us savours not of 1776 but 1576 – when the nobles in the ministry answered not to parliament but to the king.

Something in the air in the last part of the eighteenth century lead the secessionists to think more like the French.  Does our scheme accord with our ideology?  Must we not follow the dogma of Montesquieu and avoid any infringement of the doctrine of the separation of powers?

In the result, the president does not have to answer to Congress in person, but now may be confronted by a hostile Congress which is bad for both the efficiency of government and the faith of its citizens in the workability of government.  McConnell and others ruthlessly exploited this weakness against the first black president, and the U S is now held up to world ridicule on a regular basis by being shut down.  Congress effectively takes strike action – against those who put them there and the institutions they are sworn to uphold.

There is a related problem of the president not being in the parliament – neither is the leader of the opposition, because there is no such office.  This does not conduce to honesty or sense from the party not holding presidential office.  Since neither party is hardly allowed even to mention the word ‘tax’, the result is a sustained divorce from reality that is not healthy and that cannot last. 

As we speak, the absence of a formal Opposition to a president trampling on law and custom poses a direct threat to the U S polity.  We see it as essential to the principle of parliamentary control that ministers sit in parliament and answer to it.  That has never been the case in the United States.  If you said that Trump and his Cabinet were out of control, or simply not responsible, you might be uttering a legal truism.  What, if anything, has Congress done to control President Trump or make him responsible to it?

3 Failure to provide for peace, welfare and well-being

We see our common law coming from England as having started about when the king sought to replace the vendetta with an action to protect the peace of the king.  Instead of leaving it to the family of the victim to extract revenge from the family of the accused, the king proceeds in his own name against the person accused.  He, most usually, was charged with having acted contra pacem regis vi et armis (‘against the peace of the king by force and arms’).  It was now the function of the king to deal with crime.  As steps forward go, this may be on par with the discovery of fire or the invention of the wheel.

Later, the role of government would be extended to providing for the welfare and well-being of the community.  Matters of health, education and age would no longer be left to the family, the church, charity and the community, but to government itself.

If you asked most Australians or Canadians or New Zealanders if they would prefer to live in the U S, your best result may be a funny look.  If you asked them to say what are the grounds of your hostility, you might reply – guns and medicare. 

Then, you might say that the very first sentence of their Constitution reads:

‘We the People of the United States in order to form a more perfect Union, establish Justice, ensure domestic Tranquillity, provide for the common Defence, and general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity ….’

Well, since we the people outside the United States think that they have failed to ensure domestic tranquility by their gun laws, and that they have failed to ensure general welfare by their other laws, or absence of laws, dealing with the poor and health care, what went wrong?

I will not here rehearse my reasons for saying that the relevant rulings about guns of the U S Supreme Court were sadly unsound in history and at law.  Not the least disturbing thing about Heller was the judicial giggling about a national tragedy, and the cavalier rudeness and malice shown by the majority to those of a different mind.  This misbehaviour simply should not be seen or heard in a court of law.  And when it comes to being rude, the ‘conservative’ justices are anything but conservative.

But I must say something about the failure of the United States to provide adequately for the welfare of its citizens. 

When we speak of the kind of the community that we want to live in here in Australia, we tend to mention notions like a belief in human worth or dignity, universal rights, the prospect of each of us being able to flourish, the government needing our consent to act against us, and a subscription to the notion of the rule of law that gives us reasonable prospects of protecting those rights. 

Some apply the term Liberalism to this bundle of values.  The Americans spoke of inalienable rights to ‘life, liberty, and the pursuit of happiness.’  Others might prefer the more emphatic statement of the Germans at the start of their constitution: ‘Human dignity shall be inviolable.  To respect and protect it shall be the duty of all state authority.’  

No, we speak of dignity in the sense of intrinsic worth – a word Kant invoked in discussing his ‘principle of humanity.’  The first meaning of dignity in the Oxford English Dictionary is ‘the quality of being worthy…worth…desert.’  We speak of that worth being intrinsic because we see it as deriving from the fact that we are human – and nothing more.

But in one way, ‘dignity’ may be a little like an elephant.  We may have trouble defining it, but we know one when we see one.  And we certainly know it when we see the flat opposite – as we do in, say, in governance in Russia or China or Iran. 

Together with the sentiments that some address as Liberalism, there is something else that matters to us here in Australia and those nations that we respect – except for the United States.  We may have a sense of compassion for those not doing so well – like the sick, the aged, or the unemployed – but we go further and recognise that it is a function of government to look after such people.  We think that they deserve more than just our sympathy, and that they need and that they should get help from us through our government.

The English had accepted that view about the responsibility of government for looking after the poor from at least the time of Queen Elizabeth I (1533-1603).  That was a long time ago, but it never took hold in the New World over the water.  That nation was founded by stern Puritans who saw both success and failure as coming from God.  The Puritans were gladly ushered out of England, but they had the numbers in America.  What is sometimes called the Welfare State is an essential part of our governance.  It is in practice irremovable here.  That has never been so in the U S.

It is worth pausing on this huge chasm between us and America.  In the sixteenth century, before white people had even seen America, the English people had assumed obligations for their poor that would have been abhorrent to their Puritans back then, and which still look at best alien to Americans today.  By 1563, the English had made a law for the compulsory levy for the maintenance of ‘impotent, aged and needy persons’.  The Oxford History of England records that the English accepted that the poor were ‘a charge on public benevolence’ and that ‘responsibility in the matter could not be left to the conscience of the individual, but must be enforced by law upon everyone.’ 

The distance from this very old English position to that in America now is as deep as the Atlantic.  And the Elizabethans were not driven by ideology, God, or charity.  They were too hardnosed for that.  In Tudor times, unemployment took the form of vagrancy.  The Tudors knew the threat to the peace of the realm (pacem regis) posed by vagabonds.  They could terrorise small farms or villages.  (And just look at how they rose up in France in 1789.) 

To repeat, the ‘commonwealth’ inevitably involved the ‘common weal’.  Under the heading ‘paternalism’, Sir Geoffrey Elton said that the ‘doctrine of the body politic knit together demanded obedience and assistance from the governed and put upon the government the duty of looking after its subjects…..Of necessity, therefore, the state had to accept the responsibility for the failures and victims of society, and the admission and elaboration of this important principle mark the development of the effective poor law from 1536 to the great Elizabethan codifications in 1597 and 1601.’  (My emphasis.)

This concern for welfare was to find its clearest statement when two future prime ministers of England presented what would be called the People’s Budget in 1908.  In June of that year, Lloyd George, the son of a Welsh cobbler, introduced a bill for an old age pension to the House of Commons.  In doing so, Lloyd George, who was aided by Winston Churchill, the son of an American heiress, stated the premise of what came to be called New Liberalism.

These problems of the sick, the infirm, of the men who cannot find a means of earning a livelihood … are problems with which it is the business of the State to deal.  They are problems which the State has neglected for too long.  (Emphasis added.)

In so acting, the English were following the example of the great Prussian, Count Otto von Bismarck, hardly a darling of the Left.

But even before the twentieth century and the rise of the Labour Party in England, the old-fashioned conservatives – the lords of the manor, or the Tory knights of the shire – showed what Professor Simon Blackburn in The Oxford Dictionary of Philosophy called ‘benevolent paternalism’.  That is no mere catch-phrase.  The whole feudal compact depended on the notion that both lords and vassals had obligations as well as rights, andas we haveseen the Tudors accepted their paternal role as essential in their governance of the common weal.  Paternalism had been blessed by the ‘law and order’ party.

This vast ocean between us, England, and most of Europe on one side, and the United States on the other, is too little noticed.  The difference in political worldviews is fundamental. 

And one word will never be applied to the United States of Trump’s America – dignity.  It dies on our lips.  MAGA has left America soiled and in the gutter.

It is sad that a flirtation with theory can become an addiction to ideology that leads to what we see as the disasters in America of their attitudes to violence (and not just in guns) and welfare (health and poverty).  Their whole history dictates traits that we and the U K and Europe could not tolerate.

4 Bill of Rights written into Constitution

It is wrong to say that the English do not have a written constitution.  You can find it in documentary form.  The difference is that it is not is not contained, or mainly contained, in a single document or instrument.  At bottom it stands on the common law, a blend of judicial precedent and ancient statutes, mainly Magna Carta, Habeas Corpus, the Bill of Rights, and the Act of Settlement.  And the British Parliament could legislate about any of those tomorrow.  There is no requirement of a referendum.  Parliament is supreme.  This is the ultimate endorsement of democracy and the U S Founding Fathers did not want much of that kind of democracy.

The Australian Constitution is set out in a schedule to an act of the Imperial Parliament.  It has long been accepted that the English Constitution forms part of the common law.  As such, each is the result of a natural process of evolution.  It follows that it would be at best problematic and at worst misconceived to take a phrase uttered at one point of that process of evolution and try to freeze its meaning and effect as at the time it first surfaced.  It would be wrong to take a notion expressed in the seventeenth century as frozen in time although invoked in the twenty-first century.  It would be wrong because it contradicts the whole notion and process of evolution.  Evolution and revolution are ‘clean’ two different things. 

(In this context, as I have mentioned before, the Supreme Court in Heller did not refer to the statement of Sir William Holdsworth, the leading authority on the history of English law, that the Tudors had prohibited the carrying ‘of certain kinds of arms – such as pistols and handguns’.  On that basis, the English Bill of Rights would never have applied to hand-guns.  The suggestion would have been ridiculous in any event in light of the history of the law relating to the duty as well as the right to bear arms going back to the medieval fyrd.)

In the U K, the law relating to what we call civil liberties comes from the common law as modified by statute.  As such, the Parliament could change it all tomorrow.  We in Australia do not regard legal issues about civil liberties as part of what we call ‘constitutional law,’ and it may be as well to remember that the Bill of Rights was entered into and enacted to settle the state in England after a revolution which, by definition, was outside the law, and of which the great legal historian F W Maitland said ‘we cannot work it into our constitutional law’.  Ultimately any rule of law must derive from an historical source – a brute matter of fact, such as a conquest, or a revolution that leads to the founding documents of a new regime.

The U S mindset is here fundamentally different to the U K and us.  There the civil rights are most set out in amendments to the written constitution and they can only be changed by the procedures there set out.  So, we can put that form of change to one side.

The Bill of Rights inevitably raises political issues for resolution by the U S Supreme Court.  As a result, that body engages in political or ideological debate that can degenerate into personal abuse in a way that would never happen in a higher court sitting in, say, London, Paris, Canberra or Berlin.  The Court is effectively a law-making body because its power to declare the meaning and effect of the Constitution becomes a de facto power to make laws in a body that is not elected, but the members of which are seen to have an agenda.

Then you get the ultimate irony – and ideological heresy.  People vote for the President, the head of the executive, so that he can appoint well sounding candidates to the judiciary, who will then stand in place of the legislature to make laws about abortion.  But only after they have stone-walled at the inquisition conducted by the real or lawful lawmakers.

That for us is an abomination.

The Australian Constitution is a remarkably prosaic affair that has little to do with what we call civil liberties.  Its one indulgence of the transcendental – trade between the states shall be ‘absolutely free’ – caused heartburn to our High Court justices for ninety years, before their Honours announced that having looked at the debates that produced the Constitution, they could identify the purpose and narrow reach of this law – and normal business was resumed.  That is that the court deals with these issues legalistically, and as apolitically as possible.

In 1942, Sir Owen Dixon, our greatest jurist, said this to the American Bar Association:

…. our constitution makers refused to adopt any part of the Bill of Rights of 1791, and a fortiori, they refused to adopt the Fourteenth Amendment.  It may surprise you to learn that in Australia, one view held was that these checks on legislative action was undemocratic, because to adopt them argued a want of confidence in the will of the people. 

Another way of saying that is that those who framed our constitution did not want to produce a document by which the political aspirations of the people could be frustrated by a claque of nitpicking village elders erstwhile clad in ermine.

It is not surprising, then, that polls give the U S Supreme Court low approval ratings.  I am not aware of any such process for our High Court or the UK Supreme Court.  The question of political alignment in those courts simply does not arise – except beyond the fringe.  And no-one would ask what is the breakdown of religious beliefs in members of our highest court.  (The closest we get to prurience is when we ask how many of them had a private school education.)

Then, by chance, the three Justices appointed by Trump got the chance to do what they were appointed to do – and they changed the law on abortion.  As I read the reports in the press, five of the six justices who voted for the change were Catholic, and the sixth was raised as a Catholic. 

It is hardly surprising that in a contest for loyalty between the nation and God, God won.  Uncle Sam (now called POTUS) is potent.  God is omnipotent.  And depending on which version you choose, He might cause you agony for eternity if you let Him down.  It was to be expected, then, that the altar would prevail over the bench.

And in reversing their law on abortion, the justices used the same kind of strident language that they had used on guns – including the epithet ‘grotesque’ for those of a different mind.  Instead of a reasoned resolution of a legal issue, we get the impassioned assertion or defence of a position.  Judges are not there to take sides.

Haven’t these judges learned the first lesson of judging?  The most important person in the courtroom is the loser.  And the time for fighting cases stopped when they left the bar.  They are there to quell conflict, not provoke it.  You say what you have to say in order to determine the case, and no more – and then you call on the next case.  All we ask is that you do your job – and that’s it.

Well, if the Americans are about three hundred years behind the English on guns, their position is worse with the Germans – well over two thousand years worse.  In his history On Germany, Tacitus said of the Germans before the birth of Christ that ‘it is repugnant to their custom for any man to use arms, before the community has attested his capacity to wield them’.  It is impossible to imagine a state of the U S trying to pass a law to that effect. 

As I recall it, Gibbon said the Romans did not subscribe to the ‘barbarous practice’ of wearing arms in the midst of peace and commented that he ‘who considers this circumstance as the test of civilisation would disdain the barbarism of a European court.’

There are two other differences between us and the U S in our approach to the law.  We follow the English tradition that you learn the practice of the law on the job – and we do not have much time for law schools or universities.  The Americans tend to lionise law schools and their products – especially from the ivy league.  That looks unreal to us – and downright snooty. 

We also follow England in having a separate bar.  We see that as essential to a solid and independent bar and judiciary – both of which were fundamental in the history of the common law and the constitution.  Europe knew nothing like it. 

The response of the legal profession in America to Trump has been at best wobbly.  And that is very worrying.

5 Bad electoral laws

When I was about sixteen, I studied nineteenth century English history – the Age of Reform.  One reform was to legislate for a secret ballot at election polls – so that people could vote free of pressure.  I never understood the argument against it. 

Nor have I ever understood the argument against making voting in elections compulsory.  That process is fundamental to our whole process of government, just as stopping at red lights is fundamental to our road traffic regulation.  We do not make that process voluntary – nor do we make jury service, another pillar of our democracy, voluntary. 

There is every reason to think that the U S would not find itself in the mess that it is in now if voting was compulsory.  This is I suspect another case of common sense being trumped by ideology – and party loyalty.  Which looks to be the case with appointing judges for life in the U S.  Why do to the nation what you would not allow people to do to each other?

And that is before you get to gerrymandering and rigging the vote – corruption at the level of eighteenth-century England or nineteenth century Tammany Hall.

This aspect of U S democracy looks to be irredeemably soiled.

6 Failure to deal with God

In England, the Lord Chancellor was a member of the legislature, judiciary and the executive.  Doctrinal anathema.  The head of state was and is the head of the state church – and liable to be deposed if he ceases to be in communion with the Church.  Worse than anathema!  Heresy!  Yet, the influence of religion on the governance in England is so slight as to be invisible.

Not many U S presidents believed in God.  But they could not be heard to say so.  Atheism was verboten, so most of them danced a minuet.  Freedom of speech is a tricky phrase, but no sane person could suggest that the present incumbent believes in God – at least in any way that may impede his ego.

The 1641 revolution in England may be called the Puritan Revolution, but after the death of Cromwell, the Puritan influence in Britain fell, and the Puritans there had trouble keeping up their status as Dissenters. 

It was different in America – the Puritans were in the majority and they had their own way.  It still shows.  As we have seen,the upshot of this continuing impact of the Puritan and frontier influences is what the rest of the western world sees as a cold indifference to the fate of those who are less fortunate – a reluctance to legislate for the welfare of the citizens of the United States. 

And the one shot that was heard around the world came in 1831 when the British Parliament outlawed slavery.  That very significant act of political and moral courage was brought about after an inspired campaign to change and direct public opinion in Britain that was organised and directed by the established church, the Church of England, and a group of religious fanatics who had been hardly done by in America, the Quakers.

Otherwise, although the Founding Fathers sought to sterilise the impact of religion in the republic, at least by banning any state church, it is difficult to avoid the conclusion that the impact of religion on the U S has been as sinister as it was pervasive.  And that would be unthinkable here or in the common Mother Country.

There is not much point speculating which presidents may have been communicant Christians.  Gary Scott Smith devoted years of study to the subject and published the results in Faith & the Presidency, a work of 400 pages and a North American quota of footnotes of half as many pages again.  Its conclusions contain the following remarkable propositions.

The belief that God has especially blessed the United States and selected it for a special mission in the world is biblically suspect.  It has inspired Americans to fight injustice at home and abroad, but it has also contributed to simplistic moralizing, overlooking national flaws, a lack of awareness of moral ambiguity, and an understandable hatred abroad of American hubris.  (My emphasis.)

The author is obviously a deeply religious man, but he agrees with a scholar who spoke of the ‘rhetoric of empire’: ‘The assumption that the United States is morally superior to other nations, the assertion that it must redeem the world by spreading popular government’, and ‘faith in the nation’s divinely ordained destiny to fulfil this mission.’  The ‘rhetoric of empire’ is a lot worse than the Napoleon complex – that cost more than five million lives in European wars fought so that Europe might know the blessing of French republican liberty – and Napoleon did not even claim to be sent by God.

This kind of talk is terrifying to those outside America.  And all of that was written many years before the arrival of Donald Trump.

Finally, the twin American indulgences in violence and fake religion came together shockingly in the Ku Klux Klan, an evil group of men more frankly vicious than the Nazis – and with a similar level of representation in the community.  It is a fearful blot on their history that Americans are not handling anywhere nearly as well as the Germans. 

Millions and millions of ‘ordinary’ Americans in the heartlands, for the love of God and the hatred of race, indulged in orgies of violence and loathing that make the torch-lit parades of the Nazis look like Sunday School picnics.  The personal inclination to rape of the Grand Dragon of the Evil Empire would have appalled Heydrich and Himmler, and the rampant credulity and cowardly anonymity of the robed gutter-rats prefigured the banality of evil of Eichmann. 

If you read a book like Timothy Egan’s A Fever in the Heartland, you might blanch if you ever have to fly over states like Indiana or Oklahoma again.  Not the least revolting aspect of the Klan was that it became more popular as it brushed with an unavailing law, and its leaders were shown to be anything but ordinary Americans.  The failures of the nation found salvation as the victims of those who kept it down.  The whole history of the Klan was the reaching after a mythical past that left no room for the Civil War or Abraham Lincoln.  The losers erected statues of losers.  On what then could the republic stand?

If you have survived a diagnosis of terminal cancer, you wonder what poison may be left in your blood, and whether it might come back.  We have had, and still have issues of race in Australia, but we have been spared the vicious combination of race hate, raw cruelty, and fake religion that still haunts and disfigures America. 

In 1925, the Klan had more than six million members who paraded grandly in major cities to warm applause.  Their savage cruelty went back to medieval or Roman times.  The journal of their fake religion was The Fiery Cross. 

The Klan and MAGA have something in common – they see themselves as victims – a proposition that would be hilarious in Myanmar, Rwanda, or Venezuela – who have been appointed as champions of other victims.  They are characterised by hatred and contempt for those they regard as inferior – even if only because they are different.  People who are content with their lot in life do not join outfits like the Klan or MAGA.

In April 2025, the federal Attorney-General of the United States said she would call for the death penalty for a man charged with murder pursuant to instructions from the President to Make America Safe Again.  A life for a life.  The victim was a totem of capitalism, and his alleged killer was the subject of broad support among the people.  It is very hard to avoid the conclusion that there is something rotten in the state of America.  And 10 April 2025 sees the hundredth anniversary of the publication of The Great Gatsby, the novel about ‘careless people’ that blew to Kingdom Come the myth of the American Dream.

7 Conclusions

The above look to me to be some of the ways the Americans find themselves in their current decline.  And so much of it comes from their failure to follow the English, or Anglo-Saxon, model of preferring the empirical call of experience to the intellectual call for theory. 

Sir Owen Dixon thought that the United States’ adoption of the separation of powers was ‘a curious and surprising departure from, indeed violation of, British constitutional practice and theory.’  His Honour was not, then, pulling punches.

The failure of the doctrine of separation of the powers of government to achieve a full legal operation here is probably fortunate.  Its failure to do so may be ascribed perhaps to mere judicial incredulity…. Legal symmetry gave way to common sense.

Sense before style or theory is the way of the common law.

In 1921, the great American jurist Roscoe Pound published his majestic treatise, The Spirit of the Common Law.  It contains juristic learning of the kind that we do not see today.  Pound was the Professor of Jurisprudence at Harvard, but he did not have a law degree.  He got that learning the hard way at the bar table before Nebraskan juries.  (Perhaps for that reason, the book of 224 pages does not contain one footnote.) 

On the second page, the author set out his stall:

For the strength of the common law is in its treatment of concrete controversies, as the strength of its rival, the modern Roman law, is in its logical development of abstract questions.

Elsewhere Pound summed it up with the crispness of a botanist:

The doctrine of precedents means that causes are to be judged by principles reached inductively from the judicial experience of the past, not by the deduction from rules established arbitrarily by the sovereign will… The common law doctrine is one of reason applied to experience. 

The latter follows a very well-known statement of Justice Holmes, but at times the United States prefers logic to experience.  We stick with Sir Owen Dixon when he said that conceptions derived from theory may be ‘too transcendental for a working lawyer’.

As I see it, ultimately our whole commitment to the rule of law rests on a certain state of mind that comes from a very long history that goes back to the forests of Germany in the time of Tacitus.  When I refer to a ‘state of mind’, I mean that when the time to decide finally comes, we are likely to be moved unconsciously, perhaps, by what Sir Owen Dixon referred to as ‘instinctive assumptions’ or ‘tacit assumptions’.  Montesquieu said that what mattered was the spirit of the laws, De L ’Esprit des Lois.  It got tricky when others sought to apply his teaching by the letter.  The Founding Fathers preferred the dogma of France to their inheritance from the history of England.

I have tried to set out how I see the relevant state of mind in America as being very different to that which prevails here and in the U K.  We have touched on three ways in which England tended to differ from those across the Chanel. 

First, in thinking – philosophy – they much preferred the empirical to the rationalist or metaphysical.  They disdained theory and were at best uncomfortable with intellectuals. 

Secondly, this mindset is reflected in the distinction between the common law and its preference for experience and Roman or civil law and its preference for codes and formal elegance.  That in turn is mirrored in the distinction between the adversarial and inquisitorial modes of trial and the English reliance on the jury. 

Thirdly, the governance of England has since the Middle Ages involved paternalism toward those not so well off – such that the word ‘socialism’ becomes more fraught than ever.

The deviations of the United States since 1776 look to veer toward the European rather than the English model – and in ways that have no appeal for us.

As we speak, we can see the very fabric of the United States being torn apart by a president elected by a people who were on full notice of his propensity to do just that, having tried and failed to rebel against a duly elected government. 

And in the dark time just before dawn, they and we may have to deal with the unthinkable, and wonder if the nation of the United States has the fibre to go on.  This is how Sebastian Haffner saw the collapse of one of the most civilised nations on earth.

The only thing that is missing is what in animals is called ‘breeding’.  This is a solid inner kernel that cannot be shaken by external pressures and forces, something noble and steely, a reserve of pride, principle and dignity to be drawn on in the hour of trial….  At the moment of truth, when other nations rise spontaneously to the occasion, the Germans collectively and limply collapsed.  They yielded and capitulated, and suffered a nervous breakdown….  The Kammergericht [superior court] toed the line.  No Frederick the Great was needed, not even Hitler had to intervene.  All that was required was a few Amtsgerichtsrats [judges] with a deficient knowledge of the law. 

I have no idea what the answer may be.  But I cannot see that we or anyone else with a similar history would seek to follow the lead of Uncle Sam.  Rather, in the words of their musical from their one Golden Age, ‘we’re going to wash that man right outa our hair – and send him on his way.’

Notes

Dicey on responsible government: A V Dicey, The Law of the Constitution, Macmillan & Co, 1885, 332.

Presence of Ministers in Parliament: W E Hearn, The Government of England, Longmans, 1897, 236.  (Sir Owen Dixon was a great admirer of this work.)

Prior remarks on gun laws: I refer to District of Columbia v. Heller, 554 U.S. 570 (2008) and Gibson, The Dragon in the Cave, published in Looking Down the Well, Papers on Legal History, Amazon, 2015. 

Sources on welfare in U S: What follows draws on Gibson, The War against Humanity, The Decline of Courtesy and the Fall of Dignity in Government and Business, yet to be published.  The remarks on governance also drew on it.

Kant on dignity and principle of humanity: Edited extracts from Groundwork of the Metaphysics of Morals 4.431 – 4.435; Practical Philosophy, Kant, Cambridge University Press 1996, 81-84.

Elizabethan property laws: Black, J B, The Reign of Elizabeth 1558-1603, being Volume XIII of The Oxford History of England, Clarendon Press (2^nd ed, 1959) 265.   

Elton on paternalism:  England Under the Tudors, Folio, 1997, 183ff.  

Lloyd George and New Liberalism: cited in Gibson, History Essays, The Last Two Samurai, Amazon, 2018.

Bismarck:The role of Germany, and Bismarck in particular, in the introduction of what we call the Welfare State is not generally known here.  In 1883 and 1889, Bismarck pushed through legislation for accident insurance for workers and then old age and disability insurance.  For the first, the German government said it had put an end ‘to all those attempts to make health insurance a private matter …and asserts the role of the state’: see Jonathan Steinberg, Bismarck, A Life, Oxford, 2011, 417. 

Blackburn on paternalism: Oxford Dictionary of Philosophy, O U P, (2d Ed), 2005, 75.

Maitland on historic foundations: Constitutional History of England, Cambridge, 1963, 285.

Dixon on Bill of Rights: Jesting Pilate, Law Book Co, 1965, 102.

Change in abortion law: Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022). 

Tacitus on Germany: Germania, 13.  But it is repugnant to their custom for any man to use arms before the community has attested his capacity to wield them.  Upon such testimonial…. some kinsmen dignify the young man in the midst of the assembly with the shield and javelin.  This among them is the manly robe, this first degree of honour conferred upon their youth.  Before this, they seem no more than part of a private family, but thenceforward part of the Commonweal.  That looks very advanced beside the United States in 2025.

Gibbon on Germans’ wearing arms: The Decline and Fall of the Roman Empire, Folio, 1987, Vol 5, 294.

Religion of U S: Scott Smith, Faith and the Presidency, OUP, 2006, 423.

Dixon on separation of powers: Jesting Pilate, above, 52.

Pound on common law; The Spirit of the Common Law, Marshall Jones, 1921, 2, 182-183.

Dixon on the transcendental: The Common Law as an Ultimate Constitutional Foundation, Jesting Pilate, above, 207.

Dixon on assumptions: Jesting Pilate, above, 38,106.

Haffner: Defying Hitler, 2002, 110.

The musical: South Pacific, Rogers and Hammerstein.