AND JUSTICE FOR ALL

I have been mulling over the matter of ‘just’, or should I just say “I have been mulling the matter of ‘just’”, the word ‘over\ being implied by ‘mull’. Be that as it may, justice, what is just, is a problematic concept. In particular when it comes to current events in the United States.

 

I do not know why I harp on about America. Although I was born there, when I was six, my family moved to Europe. We returned to the US, to California, for about 18 months, returned to Europe again, went back to California, where I stayed for 9 years and I returned to Europe in 1965.  I’ve actually spent little time in the USA. But this is just a mulling interlude.

 

Getting back to justice and America, there are a couple of documents of importance held in the United States National Archive in Washington DC. The Declaration of Independence and the Constitution of the United States.

 

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

 

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, 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.

 

I post the above preambles of the documents as they clearly state the primary concerns of those seeking to establish a government, or as Lincoln put it, to bring forth a new nation.

 

Equality, rights, justice and power from the consent of the governed is what forms the basis of government. This concept was restated to great affect by Lincoln on November 19 1863 one hundred and fifty-seven years ago, or rather seven score and seventeen years ago at Gettysburg, “…that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.”

 

Lincoln 1809 - 1865

The first function of the formation of the Union then is to establish justice, the second, domestic tranquillity, third, common defence, fourth, general welfare, fifth, secure liberty.

It lays its foundation by organising power in such form as to them shall seem most likely to affect safety and happiness.

 

The establishment of justice in the constitution is in fact quite a short Article 3, with 3 sections- 1-Judicial Powers, 2- Trial by Jury, Original Jurisdiction, Jury Trials and 3- Treason. The actual composition of the Court was set up by the Judiciary Act of 1789 during the first session of the Congress of the United States providing for six Judges. Subsequently, some 18 years later, under the Seventh Circuit Act of 1807 the number of Judges was increase to 7. After another thirty years, under the Eighth and Ninth Circuits Act of 1837, it was increased to nine judges, with any five constituting a quorum. That has remained the case for just over 180 years. Jefferson was President during the first extension and the second extension come into law under the Presidency of Andrew Jackson. Jackson by all accounts was a severe and contrary individual. 

 

It is recorded that he believed in the ability of the people to "arrive at right conclusions." They had the right not only to elect but to "instruct their agents & representatives." Office holders should either obey the popular will or resign. He rejected the view of a powerful and independent Supreme Court with binding decisions, arguing that "the Congress, the Executive, and the Court must each or itself be guided by its own opinions of the Constitution" Jackson thought that Supreme Court justices should be made to stand for election, and believed in strict constructionism as the best way to ensure democratic rule. He called for term limits on presidents and the abolition of the Electoral College.

A. Jackson 1767 -1845

It must also be remembered that Jackson was a prosperous cotton planter, owned about 150 slaves, was an enforcer of Marshall law and decimated black and Native American tribes. Under Marshall Law he had no hesitation in executing some of his dissenting militia.

 

The people arriving at the right conclusions? Could one say that the 73 million who voted for Mr Trump arrived at the right conclusion? Or the 78 million who supported Mr. Biden? And what about obeying the popular will? But I digress.

 

My primary purpose is to mull over Justice. A while back I spent some time in Paris sitting in on various classes in philosophy at the Sorbonne. The Scottish Enlightenment was very much on the agenda, in the shape of Adam Smith and David Hume. As another digression, and on looking into Smith and Hume, I found a piece that I had written on the 23^rd January 2017, two days following Mr. Trump's inauguration: (https://fbuffnstuff.blogspot.com/2017/01/ )

 

But I come back to the first part of Hume’s thought on external objects considering the operation of causes – the problem of finding connections and not being able to bind the effect to the cause. 

 

What initially and topically springs to mind is how nearly 63 million American citizens voted for such an external object as Donald Trump. The puzzlement is that nearly 66 million voted for Hilary Clinton, yet in terms of actual electoral votes the object carried 30 out of the 50 States to succeed to the Office of President. Yet that is the electoral system. What is the quality that binds cause and effect in that?  Only 55% of eligible voters actually turned out and just under 46% of them voted for the object, which means that about 25% of the voting public have put this man in office. That appears to be a fact. It is an undeniable, bewildering and disturbing fact which, in my view, has no foundation or quality, Yet it is so. 

 

On the other hand, the effect caused by this fact was yesterday’s Women’s March attracting over 2.6 million protestors round the world. Marches were organized in all 50 U.S. states and Puerto Rico, as well as in 55 global cities, including Tokyo, Sydney, Nairobi, Paris, and Bogotá.  On the morning of the march, people marched in Paris, London, Berlin, Amsterdam, Mexico City, Bangkok, Delhi, Cape Town, and many other cities.  My initial feeling is that the external object, the cause of this global demonstration of disapprobation, will pay no heed to this initial effect of his newly acquired position.

 

So perhaps Andrew Jackson was correct in suggesting people arrive at the right conclusions and that the Electoral College should. be abolished. Where was the Justice in Mr. Trump being installed as President when the 3 million more people chose Ms. Clinton, and only a quarter of the people voted for Mr. Trump.

 

Getting back to Justice, both Smith and Hume had very clear ideas about the concept of what is just and equitable. Their view of humanity was seen from a softer and kinder perspective. They held that human beings were far more empathetic than they actually are. Smith was a great believer in society. Here is a short paragraph from his Theory of Moral Sentiments:

A. Smith 1723-1790

 

Though nature, therefore, exhorts mankind to acts of beneficence, by the pleasing consciousness of deserved reward, she has not thought it necessary to guard and enforce the practice of it by the terrors of merited punishment in case it should be neglected. It is the ornament which embellishes, not the foundation which support the building, and which it was, therefore, sufficient to recommend, but by no means necessary to impose. Justice, on the contrary, is the main pillar that upholds the whole edifice. If it is removed, the great, the immense fabric of human society, that fabric which, to raise and support, seems, in this world, if I may say so, to have been the peculiar and darling care of nature, must in a moment crumble into atoms. In order to enforce the observation of justice, therefore, nature has implanted in the human breast that consciousness of ill desert, those terrors of merited punishment, which attend upon its violation, as the safeguards of the association of mankind, to protect the weak, to curb the violent, and to chastise the guilty.

 

Without Justice everything falls apart. But what is just? What is right? If we have a firm belief in something and are slighted and feel hard done, we feel that what has been done to us, or not done for us, is unjust. We claim there is no justice. If we feel hard done by, it is unjust. If a criminal is given a sentence we find not to our liking, there is no justice. Justice should be about making things even, compensating for transgressions against us, making good the mental or physical injuries one has suffered. I should have got that job, I’m more qualified. I should have got that part, I’m a better actor. That man should rot in jail. She doesn’t deserve that, who cares about positive discrimination, and so on…There are many examples of ‘justice’ seen from a personal and prejudiced perspective, but is it right? Is it right in a rich society that people should be homeless, unemployed, uneducated, unhealthy, found guilty when innocent, mistreated, exploited, overlooked, unheard, enslaved, racially, sexually and physically abused? I believe most people would say not.

 

So if a constitutionally elected Government chooses to further the idea of liberty and justice for all, that’s not socialism, nor is it communism, it is what Americans claim to pledge to do every time they look up at the flag.