Blue Lives, Black Lives, ‘The Republic’ and ‘Leviathan’

Plato of classical Athens, to this day, is one of the ten most cited intellectuals in contemporary scholarly publishing. This should at least give us pause since he was also one of the Western tradition’s most ardent critics of democracy. In any case, we have decided to make a go of it, and, accordingly, we can’t simply sit back and blame our problems on a tyrant. A democratic republic places responsibility for our state of affairs squarely upon our shoulders, and the loss of life in our African-American communities at the hands of the police is no exception. This piece is about the relationship between our sovereign and her citizens.

Signed during the summer of 1215, the Magna Carta was an agreement between an unpopular English king and his barons. More than just commercial issues, the Magna Carta guaranteed a modest set of civil liberties to the wealthy aristocrats subject to his rule. Within weeks, the document was scrapped, and, some years later, annulled by the pope, but the Magna Carta earned its place in history as the first time limitations were imposed upon the authority of a legitimate European monarch.

The need for such an agreement had become clear; the West has been no stranger to tyranny. The first ruling family of the Roman Empire, the Julio Claudians, gave us two of history’s most famous tyrants. Germanicus, better known by his nickname, Caligula, and Nero, whose malevolence became legendary. A democratic republic doesn’t necessarily inoculate against the rise of a tyrant. The Roman Republic, which preceded the Empire, produced Sulla, and Hitler came to power by completely legitimate means. Indeed, the Frenchman Alexis De Tocqueville counseled us against the, “tyranny of the democratic majority.”

This conversation was defined by Thomas Hobbes of 17th century Europe. Hobbes believed that we are a fundamentally flawed species. He believed that life for, “man in the state of nature,” was unpredictable. “No arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish and short.” His masterpiece, “Leviathan,” published in 1651, argued for a strong central government to check the passions and proclivities of men. “Leviathan” may be the second most influential work of political theory we have after Plato’s “Republic”.

And, herein lies the problem: A strong central government may be necessary to keep us in check, but that same government may be employed as a tool of oppression in the hands of a tyrant. In 1748, Montesquieu published “The Spirit of the Laws” exhorting us to divide our government into separate, coequal branches with a Judicial Branch dedicated to mediating the executive’s desire to enforce the law contra its citizens. President Rutherford Hayes, in 1878, signed the Posse Comitatus Act into law promising the American people that they will never face the United States military.

Today, our state and federal constitutions serve has a bulwark against such abuse. The Bill of Rights, the first ten amendments to our national Constitution, is enforceable only against the government to stem overreach. The First Amendment guarantees the government won’t punish us for speaking our mind. The Fourth Amendment ensures freedom from unreasonable search and seizure. And, the Eighth Amendment promises we won’t be subject to cruel or unusual punishment. The government must prove our transgressions in a court of law, as required by the Sixth Amendment.

Understanding manufacturing processes is part of any good business school curriculum. No one cares if you’re building cars, rugs or light bulbs; the principles are the same. So, when the professor gets the inevitable question from one of her students, she responds, “Today, we’re building ‘Widgets’.” Likewise, no two Americans are alike. We all have different histories, biases and beliefs. Some of us are caring and gregarious while others sharp or perhaps a bit slow. Some hold good will in our hearts and others less so. A police officer has no idea who he will encounter on any given shift so he is trained for any contingency.

When it comes to lives both blue and black, l would simply like to make one point. When a confrontation takes place on our streets between a police officer and a black man, consider this: On one side of this equation is a police officer with a badge and a gun. Standing behind that police officer is the municipality by whom he is employed. Standing behind that municipality is, in my case, the Commonwealth of Massachusetts, and standing behind the Commonwealth, by operation of the 10th Amendment, is the most powerful political entity in the history of civilization. On the other side is a widget.

Mike Frates practices criminal law in the City of New Bedford, Massachusetts. Originally published in the New Bedford Standard Times, November 6, 2016.

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