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Sunday, October 10, 2021

Fair Play and Democracy

Turning back to the subject of FDR's Constitution Day Address, here is one passage that stands out: 

Nothing would so surely destroy the substance of what the Bill of Rights protects than its perversion to prevent social progress. The surest protection of the individual and of minorities is that fundamental tolerance and feeling for fair play which the Bill of Rights assumes. But tolerance and fair play would disappear here as it has in some other lands if the great mass of people were denied confidence in their justice, their security and their self-respect. Desperate people in other lands surrendered their liberties when freedom came merely to mean humiliation and starvation. The crisis of 1933 should make us understand that.

A common theme in the 1930s and 1940s was that democracies in Europe failed after World War I because nations could not respond effectively to economic distress and inequality. One implication of this view is that law was neither a cause nor the salvation. You see this idea in Learned Hand's "Spirit of Liberty" speech in 1944 and in some of Churchill's writings from the same period. This is the intellectual context for FDR's statement in the Address that the Constitution is a "layman's document, not a lawyer's contract." Lawyers are not the heroes in his constitutional narrative: they are the villains. The fact that they are the villains explains why lawyers and courts have ignored the Address for as as long as they have. (As I'll point out in my paper, the Constitution Day Address is a pre-civil rights era story of the United States. Lawyers look better after Brown.) 

When people consider the more recent democratic failures, they instead emphasize cultural factors. The Arab Spring, for instance, is not seen as something grounded in economics. Neither is the failure of democracy in Russia in the 1990s. But you could describe both events in those terms. Granted, there was a stronger link between economics and politics in the 1930s and 1940s (think of people like Keynes and Hayek and their influence). But even in the 1980s, I would venture to say that successful democracy was associated closely with economic success in a way that faltered in the 1990s. Perhaps that is because of the rise of China. More on that in a later post.

Posted by Gerard Magliocca on October 10, 2021 at 09:44 PM | Permalink


Isn't the real reason lawyers in particular have ignored the Constitution Day address that Roosevelt gave it on September 17, 1937, a couple of months after the court packing effort collapsed? Read in that context, it sounds whiny.

Posted by: Mark Regan | Oct 13, 2021 10:19:59 PM

Which begs the question, why didn’t those Justice’s who first and foremost did not recognize the fact that The Rule of Law applies to all sons and daughters of human persons, and were not capable of even defining person, a.k.a, human individual, recuse themselves, least Roe v. Wade result in an error n Substantive and thus Procedural Due Process Law, as it ultimately did.

Posted by: Nancy | Oct 12, 2021 10:10:30 AM

Without freedom, there cannot be innovation, this does not change the fact that in a democratic form of government one can still vote to instill a tyrannical form of government, if the people choose to render onto Caesar what Has Always and Will Always belong to God.

Thank God, Our Republic is grounded in the self- evident truth that our inherent, Unalienable Right to Life, to Liberty, and to The Pursuit of Happiness is Endowed to us from God, and not Caesar, for “When God is denied, human dignity disappears, whoever defends God, is defending man”, - Pope Benedict XVI
And when human dignity disappears, anything can become permissible, including the destruction of the life of a beloved son or daughter residing in their mother’s womb.
“Things of Truth do not become valid or invalid because of the time in which they are enunciated. A thing true on Monday, does not become untrue on Tuesday.”- Father Schall
“For we wrestle not against flesh and blood, but against the rulers, against the powers, against the world forces of this darkness, against the world forces of this darkness, against the spiritual forces of wickedness in the heavenly places.”
“Our Constitution was made only for a moral and religious people.” - John Adams

For only a moral and religious people can affirm the self evident truth, that our inherent, Unalienable Right to Life, to Liberty, and to The Pursuit of Happiness, has been Endowed to us from God, the purpose of which can only be, what God intended.
Choose Life-affirming and Life-sustaining Love, and our Constitution will Live, deny that God Is The Author Of The Rule Of Law, and tyranny will beckon us, for only in The Eyes Of God, does every human perison have equal Dignity, and thus Is equal before The Law.

Posted by: Nancy | Oct 12, 2021 8:56:27 AM

Important issues.

But, that notion that the constitution is a "layman's document, not a lawyer's contract" is baseless, or rather meaningless. The law and constitution is not a game. Such notion doesn't help in reality. Nothing almost can be understood prima facie in law and in the constitution. Laymen can't exceed it.

We shall illustrate it:

The constitution grants certain immunity to Congress members (speech and debate). But, what about sitting president ? Well, had to be granted by courts. Constitution couldn't help.


The fourth amendment forbids arbitrary seizures and searches or arrests. One officer needs probable cause. Reasonable suspicion. Judicial warrant etc.... But, can't be reconciled with searches in borders or check points (like air ports). For there, officers don't need neither warrants, nor, reasonable suspicion. That contradicts the fourth amendment. Done by courts.


If you say that it has been done by courts, then you say, lawyers. Courts means lawyers. Lawyers are also lawmakers in this respect (unintentionally so of course). For courts can't do nothing typically, without lawyers that bring lawsuits, for consolidating and better interpreting the law itself, and lacunas therein.

Simple as that.


Posted by: El roam | Oct 11, 2021 5:59:57 AM

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