It is not at all clear to me why the Founding Fathers matter. I understand the significance of the colonies’ break with Britain. And the creation of a new secular order, a federal government of limited powers binding together independent states, endures today. But resorting to the founders, their intentions, their ideas, and their ideals, is a pernicious form of question-begging. I say we ought on Independence Day to consider seriously our own commitment to liberty. We sell it cheaply when we defer to those long dead, as though they had decided fundamental truths for all time.
One need look no further than John Adams’ defense of British soldiers in the Boston Massacre trial in 1770 to see how far we have fallen from the world of the founders. Yet no one seems to notice. There is no revolutionary hue or cry. We go like sheep into the arms of strangers.
On March 6, 1770, Captain Thomas Preston and a phalanx of British soldiers met an angry job of Bostonians outside the custom house in Boston. Bostonians threw ice, oyster shells, pieces of coal at the soldiers, who were there on behalf of the sovereign. Shots were fired by the soldiers. Five Bostonians lay mortally wounded and died.
Then something truly remarkable happened. The British soldiers were placed on trial in a Boston courtroom. A jury of citizens evaluated charges of murder levied against them. John Adams volunteered to defend the men at trial, securing the acquittal of Preston and six of his men. Two soldiers were convicted of manslaughter.
Ye liberty loving people who enthuse about the founders and how they speak to us today consider this: that trial would never take place today. We have placed the sovereign beyond the reach of ordinary justice. No civilian court is permitted to sit in judgment of the sovereign’s men today. We the people have been neutered, the courtroom doors darkened by claims of sovereign immunity and qualified immunity. There has been a silent revolution in the courts, a revolution killing trials by jury.
The founders would have shuddered to see how we have permitted the judiciary to slam the courthouse doors in the face of justice.
Yesterday, New York Times illustrated just how far we have fallen. The editorial page carried annotated excerpts from a recent Supreme Court decision involving a man named John Thompson. He spent 18 years behind bars, 14 of them on death row, before he was finally exonerated. It turned out that prosecutors in New Orleans deliberately hid evidence tending to show he was innocent. They did so in violation of clearly established law. So Thompson turned to the courts for justice, just as John Adams did. A jury awarded him $14 million, and sought to punish the prosecution.
Then the Supreme Court stepped in. By a vote of 5-4, the Court held the prosecution immune from this sort of suit. In other words, when the soldiers on the Commons take aim and fire, your corpse is not their problem. The Times expressed justifiable outrage over this decision: “With this ruling, the court made it even more likely that innocent people will be railroaded by untrained prosecutors -- with the terrible prospect of their being put to death for crimes they did not commit.”
Where’s the public outrage over this?
I spent the day yesterday getting acquainted with a fellow named Andrew Breitbart. He is well know to politicos. He is an Internet tyro of the right. He helped to fell ACORN by publicizing videotapes of misconduct by ACORN workers; and he was right their on the front lines of the Weinergate, helping to topple New York Representative Andrew Weiner by publicizing Internet communications between the congressman and his libidinal targets. I am always behind the times on online doings. I wanted to know more about Breitbart, so I read his new book: Righteous Indignation: Excuse Me While I Save the World.
The dustcover features a photo of him, eyes squeezed shut, his mouth open, apparently howling in rage. What does he hate? The New York Times. The mainstream media. Liberals. He is a not-so-merry prankster looking to show that those who criticize the emperor for wearing no clothes are, in fact, wearing no clothes. At one point, he pronounced that, if sued, he would seek the best “Federalist Society” lawyers he could find.
Did he say “Federalist Society”? Aren’t these the necromancers who make a fetish of the intentions of the long-since dead and gone? Aren’t these the legal theorists who decided it an outrage that anyone thought the Constitution embodied a right to privacy and then set out creating a Constitutional counterculture closely wedded to social conservatism?
Breitbart is a smart and talented guy. But his book left me depressed and unsatisfied. All that rage, and no where to go. Is hatred enough?
There is plenty to scream about on Independence Day. I say rage against judicially-created immunities that would have made John Adams heroic defense impossible because the soldiers would never have been charged. We worship the founders today without really knowing why. They have been conscripted and set to serve a master we cannot even challenge in the courts. The founders are dead. If we truly sought to honor them, we would do what they did; we would revolt and seek to challenge a sovereign that acts with impunity and without our consent.
Happy Independence Day. If you dare. Or perhaps you’d rather just eat a hot dog or two and mumble something about Thomas Jefferson, a slave owner. The founding fathers have been kidnapped, I say. Who is going to set them free?