This is the third in a series of anticipated posts closely reading the Constitution of the United States for homeland security implications. Readers are encouraged to use the comment function to add background, analysis, exegesis or exposition related to the text highlighted.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Several of the Framers would have been able to quote various classical sources on justice. In the Republic Plato argued, “Everyone ought to perform the one function in the community for which his nature best suits him. I believe that principle, or some form of it, is justice.” This Greek notion seeming very similar to the mishpat of the Jewish scriptures, a favorite of Puritan preaching (especially when mishpat dances with tsedeq).
Cicero was even better known than Plato among the Latin-reading (less often Greek-reading) men of the mid-to-late 18th Century. His Stoic conception of justice was similar, “Justice is the set and constant purpose which gives every man his due.” What was due certainly might be culturally framed, but Cicero claimed, “justice must be observed even to the lowest.” From most of their ancient texts, Founders and Framers received an idea of justice that exalts in the dignity of each individual. (At least if the individual is white, male, and Protestant, but a case can also be made that this idea — seeded with care in the 18th Century — just had a very long germination period.)
Of the fifty-five delegates at the Philadelphia Convention thirty-five were lawyers, most of whom had read William Blackstone’s Commentaries on the Laws of England. Consistent with the Greek, Roman, and Judeo-Christian understanding of justice (especially when consonant with the Protestant revolution), Blackstone addresses the rights of the individual (I apologize for this very long passage, but Blackstone is tough to quote both accurately and succinctly. The bold second paragraph would be easy to misunderstand outside the context of the first paragraph, and even here, Blackstone has much more to say).
By the absolute rights of individuals, we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it. But with regard to the absolute duties, which man is bound to perform considered as a mere individual, it is not to be expected that any human municipal law should at all explain or enforce them. For the end and intent of such laws being only to regulate the behaviour of mankind, as they are members of society, and stand in various relations to each other, they have consequently no concern with any other but social or relative duties. Let a man therefore be ever so abandoned in his principles, or vicious in his practice, provided he keeps his wickedness to himself, and does not offend against the rules of public decency, he is out of the reach of human laws. But if he makes his vices public, though they be such as seem principally to affect himself, (as drunkenness, or the like,) then they become, by the bad example they set, of pernicious effects to society; and therefore it is then the business of human laws to correct them. Here the circumstance of publication is what alters the nature of the case. Public sobriety is a relative duty, and therefore enjoined by our laws; private sobriety is an absolute duty, which, whether it be performed or not, human tribunals can never know; and therefore they can never enforce it by any civil sanction. But, with respect to rights, the case is different Human laws define and enforce as well those rights which belong to a man considered as an individual, as those which belong to him considered as related to others.
For the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature, but which could not be preserved in peace without that mutual assistance and intercourse which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals.
The justice to be established is much more than procedural (though that too) and even the notion of equity under law is not sufficiently expansive. Justice involves honoring the particular potential of each individual within a society that seeks to optimize the potential of all.
Implications for homeland security
Well… while certainly easier said than done, sounds like about the best possible long-term counter-terrorism strategy.