NEW SERIES: An Introduction to American Law (Part 2)

>> soon on The Savvy Citizen -- savvycitizen.substack.com

Oct 15, 2024

I practiced law for 15 years, enough time to have battle scars and stories that should never be told. When I closed my office door for the last time, I thought I’d ended the “legal” season of my life. But it just won’t go away and sometimes that annoys me. But lately, I’ve been grateful to have some insight into the American legal system, its foundations, and its intended framework.

We’re in a strange time because the progressive American Left has systematically moved political disputes into the legal arena at an alarming pace. Historically, using the law for political gain has been one of the Left’s most impactful policy tools and one they’ve used strategically and skillfully (to the right’s chagrin), but their pattern of conduct has gone largely unnoticed by the general public. Only law professors, legal historians, and some politicos who went to law school talked about it and usually did so with a nod of approval. Workaday practitioners, like I used to be, are hyper-focused on reading the law and applying it to clients’ specific cases, so politics and theory talk don’t make it onto the menu.

But that means no one’s been watching the till … until now.

I’ve hesitated to comment on the myriad legal headlines, save a few, to protect my cognitive capacity and my sanity, but the law and law-adjacent issues have overtaken the news cycle, and most ordinary people, that is pretty much everyone but law professors, legal historians, and politicos, don’t have the knowledge or mental mechanisms to make heads or tails of what any of it actually means. They’re left with the shallow, enervative, and biased reporting from the media and, quite frankly, it’s appalling. Admittedly, the lack of information, misinformation, and disinformation polluting the airwaves makes my brain hurt, but I’m trying to stay steady since I have so much “real life” to manage. I’m much more interested in digging below the fray than fighting in the fray, but it’s getting harder to abstain.

All of this to say when former journalist Mark McGee, and author of an eponymous Substack newsletter for journalists, invited me to contribute content to his publication on legal issues important for journalists, the law bug bit me and I jumped. Many reporters have left big media and no longer have access to corporate legal departments, so they're flying by the seat of their pants. Avoiding unforced legal errors can save writers, journalists, and truly any independent entrepreneur loads of money, time, and stress, so I’m happy to help if only in a small way. My content will focus on legal risks facing journalists themselves and on the law generally so they’re better equipped to report on active litigation of public interest.

Why am I telling you this?

Mark has permitted me to share the posts I author directly with you, my audience. Although it’s tweaked for journalists, the information is for everyone who has an interest in understanding American law. I’ll be posting the articles on my second Substack - The Savvy Citizen - a co-authored project with my husband that we’re getting up and running (there are already a handful of foundational articles on the American Founding and citizenship to whet your appetite), and also sharing them here on Confessions of a Truthaholic so you don’t miss out if this type of content is your jam.

While we’re preparing The Savvy Citizen for this new series, I’ve copied the second article originally published on Mark McGee’s newsletter below.

I trust this will be an informative read for those who are new to the law and/or a refresher for those who’ve been so deep in the weeds they don’t have time to “redo” law school.

Thank you as always for supporting my content.

xo,

Kelley

(From Mark)

I’m pleased to bring you the second part of legal expert Kelley Keller’s ‘Introduction to American Law,’ specifically for journalists and other people working in fields of mass communications.

Kelley has extensive experience in the legal field, as you will see in her bio at the end of this article. I hope you will take notes, print the newsletter, share it with others in journalism and communications, and by all means — use the information. If you have not read the first part of this series, you can link to it here. Be sure to read it first, since each part of this series builds on the previous part.

By Kelley Keller

American Law Builds on a Long Tradition of Law and Order

American law wasn’t created in a vacuum, nor was it developed from ground zero. It emerged within a long and storied tradition of law, order, and justice in the Western world that began at the end of the 11th century. Indeed this tradition helped to bring Europe out of the Middle Ages. When American law first began to take shape in the 18th century, it was building upon 700 years of Western legal thought and legal systems, including the approximately 200 years during which the British legal system operated in the colonies. They knew what worked and what didn’t work.

Our Founders were learned statesmen (many with great wives too!) and had deep knowledge of the tragic tyrannical outcomes when the laws are created by some (ruling class) but only applying to others (everyone else). This is classic tyranny. They were intent on trying something new, a bold experiment where the law applies to everyone equally; where no one is above the law, and no one is below the law.

Law is a Form of Social Order and Is Necessary for Organized Society

“I know no safe depository of the ultimate powers of a society, but the people themselves: and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is, not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.” - Thomas Jefferson, September 28, 1820

Man’s fight for survival, including his struggles for food, shelter, and power, was a bloody business for most of human history. Aside from a few short periods, it wasn’t until the American founding that the world was presented with a solution that made living together peacefully and prosperously possible. According to Constitutional scholar Paul B. Skousen, the Constitution, which is the Supreme Law of the Land, “was the brilliant, ingenious and elegant solution that humanity had been missing. It pointed the human race toward self-government as the best solution to preserve human rights and to encourage inventive exploration.” Giving power to the People in the way the Framers proposed was a revolutionary way to govern that’d never been tried before, even in ancient Athens and Rome.

¹ Thomas Jefferson, Letter to William Charles Jarvis (Monticello, September 28,1820), https://founders.archives.gov/documents/Jefferson/03-16-02-0234

² Paul B. Skousen, How to Read the Constitution & the Declaration of Independence (Salt Lake City, UT: Izzard Ink Publishing, 2017), 1.

Prior to writing the Declaration of Independence and ultimately the Constitution, the American Framers carefully studied the world’s political systems to determine how much power each exercised over their people. They discerned that nearly every political system fell into one of two buckets: tyranny or anarchy. Tyranny is the result of too much government, too much control, and too much centralized power. Whatever the ruling class commands, the ruling class gets. The laws don’t apply to them if they don’t like them. Anarchy is just the opposite. With anarchy, there is no government, no control, no laws, and no centralized political power to establish and enforce order on society. It gives rise to tribalism and mob rule.

The goal of the Framers was to find a balance between the two extremes of tyranny (Ruler’s Law) and anarchy (No Law). And, they did so by giving all power, control, and law making ability to the People (the People’s Law). We, the People, could choose to delegate powers to a government, but We, the People retained full control over the nature and scope of those powers and could modify them at any time. In essence, We, the People, not a ruling class of elites, and not lawless mobs, create and control our own government.

A New American Law

Still reeling from the exhausting Seven Years’ War between Great Britain and France (fought over land disputes in North America), England’s King George III was a tired, frustrated, and struggling monarch in the 1760s. Britain had won the war, but was dead broke as a result. To refill the Crown’s coffers, King George decided to tax the American colonies without increasing their representation in Parliament. Naturally, this effort went over like a ton of bricks since the colonists’ had experienced very low taxes for approximately two generations of Colonial rule. In response, they protested with letter writing campaigns and, eventually, by boycotting British goods. Not only did the King ignore their complaints, he took an increasingly tougher stance with each protest. Finally, the American colonists hit their breaking point and determined their only course of action was to sever ties with England. They announced this decision on July 4, 1776 with the Declaration of Independence.

Declaring Independence

Thomas Jefferson wrote the Declaration of Independence over the course of 17 days. Once finalized, the Declaration outlined why the American colonists were so angry with the King and provided justification for the necessity and timeliness of their revolt. When the American Revolution ended on September 3, 1783, seven (7) years after the Declaration of Independence, the 13 original colonies were officially independent American States. As the Framers began to craft a new government by the People and for the People, they looked to the Declaration to provide its philosophical foundation.

³ Skousen, How to Read, 4-5.

SIDEBAR >> By way of recap from Part 1 (link to Part 1), here’s the high-level organization of the Declaration:

Preamble: Identifies the purpose of the Declaration
Assertions: Describes 8 ancient principles of freedom and unalienable rights
The Charges: Lists 27 acts of tyranny and despotism committed by King George III
The Defense: Lists the actions colonists took to resolve their differences with the King
The Declaration: Actual Declaration of Independence from the King and his parliament.

The Philosophical Foundation: Eight Ancient Principles of Human Freedom and Unalienable Rights

While writing the Declaration, Thomas Jefferson spent half of his time articulating eight ancient, immutable, and self-evident principles of human freedom, human rights, and good government. They are expressed in the Declaration’s Preamble and Assertions and are summarized below.

Self-Evident Truths: There are some things that are so clear and so obvious, they don’t require proof or reasoning. They’re so self-evident that they’re axiomatic.
Laws Come from God and Nature: God’s law (revealed law) and natural law, not just man-made laws (positive law), exist and everyone must obey them. All man-made laws must align and accord with both revealed law and natural law, else they’re invalid.
All Humans are Equal: Every human being is created equal by God and therefore, every human being has equal God-given rights and stands equal before the law.
Human Rights are Unalienable: Human rights are given by God and are therefore universal in nature. They apply equally to everyone at all times and in all places and may not be taken away by anyone. Rights created and supplied by the government, however, may be taken away.
Life, Liberty, and Property are Among the Most Important Human Rights: Of all human rights, the rights to life, liberty, and private property are at the top of the list. The right to private property forms the basis of economic systems and is the primary right attacked by tyrannical governments (primarily socialist and communist).
Government Must Protect Rights: The sole purpose of government is to protect the unalienable rights of the people. There is no other valid reason to organize into a nation-state and establish a government.
Governments are Permitted to Exist: We, the People, decide how and by whom we will be governed. Governments have no inherent powers.
People May Change Government At Will: If a government fails to protect the human rights of its citizens, the people have not just the right, but a duty, to sever from it and establish a new one in its place.

The Seven Ancient Pillars of Tyranny

During the other half of his time, Jefferson described how King George III had abandoned each of the eight principles of human freedom and deprived the colonists of their unalienable rights. Jefferson charged the King with using each of the seven ancient pillars of tyranny, also known as the seven ancient enemies of freedom, in his abuse of the settlers and outlined 27 specific ways he’d done so. These are set forth in the Charges section of the Declaration. Here’s a summary of the ancient pillars of tyranny.

Rulers: When a ruler (or rulers) is unaccountable to the laws of the land, to the governmental representatives, or to the people, (s)he exercises unlimited power. Unaccountable and unlimited power is freedom’s public enemy number one. What the ruler giveth, the ruler can taketh, whether the People like it or not.
Castes / Class: An unaccountable ruler protects his/her supporters by designating them part of an elite class with special rights and privileges unavailable to ordinary people.
Things in Common: When an unaccountable ruler assumes control over a nation’s economy, (s)he often demands redistribution from the “have’s” to the “have not’s” under the guise of “leveling the playing field.” The Framers warned specifically against this practice since, over time, redistribution always impoverishes everyone, except, of course, the ruler and the ruling class.
Regulation: Unaccountable rulers will often promise equal outcomes for everyone (aka having “all things in common”). To deliver on that promise, (s)he will regulate the economy by controlling prices, production, and distribution of goods and services.
Force: What the ruler wants, the ruler gets, regardless of the amount of force required.
Information: The ruler and his/her caste of elites exercise strict control over the content and flow of information to shape public opinion according to their desires. This usually involves telling people their lives will be so much better if they will just follow the new rules of the rulers, i.e. abandoning freedom of speech.
No Rights: The ends always justify the means. If the People’s rights are in the way of the ruler getting what the ruler wants, (s)he will simply trample all over them without a second thought.

After the Preamble, the Assertions, and the Charges, the Declaration of Independence concludes with a summary of the amicable actions the colonial settlers took to resolve their complaints and the formal statement declaring independence.

We’ll stop here for now and be back next time with a point-by-point analysis of the Declaration of Independence itself. We’ll examine the specific ways Jefferson builds the philosophical foundation for a new government by incorporating the eight principles of human freedom and firmly opposing the seven pillars of tyranny. The Declaration was, and still is, the launchpad for a government of laws, not of men.

For more of this type of content, including our daily CIVICS 101 posts, subscribe to The Savvy Citizen right here on Substack: savvycitizen.substack.com!

Thank you …

xo,