“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
~ First Amendment of the Constitution of the United States of America, ratified 15 December 1791
There is a reason that the Founders specifically indicated that Congress was to make NO law with respect to these rights. It is because true liberty can only be achieved through the absence of law, not the presence of it. This is the very reason that John Adams said that our Constitution could only govern a “moral and religious people” – the “laws” required to maintain our Republic are not those passed in the various legislative bodies, the required laws must reside in our own bodies, in our hearts and minds.
There is an oft noted quote of James Madison referencing “voluminous laws” but citing only this small excerpt from Federalist #62 does a great disservice to the wisdom of Publius. What comes after is at least equally as important:
“The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?
Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uniformed mass of the people. Every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. This is a state of things in which it may be said with some truth that laws are made for the few, not for the many.”
How true it is that laws are made for the few, not for the many, that it has become acceptable for laws to be selectively created to advantage this group or that, while trespassing on the rights of the majority to do so.
I do not argue that there should be no laws as that would imply anarchy – but I while I do understand that laws to protect basic rights and liberties are necessary (prohibiting murder for example), I also understand that laws that seek to govern all aspects of human interaction are like fractures on the surface of a frozen lake, radiating out from the initial point of stress in infinite and random directions. Their magnitude and reach are impossible to predict as is the degree of destruction and weakness they impart to the ice. You may be able to cross without falling though, you may not – and with every step you take, the fractures spread further and in even more unpredictable directions.
Such is the nature of law.
Publius (Madison) ended Federalist #62 thus:
“No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability.”
The stability of which good Pubilus speaks is necessary for liberty. Contrary to our modern propensity to regulate all, Publius and the other Founders understood that since laws are made for the few, there is an inverse relationship between the amount of law and such stability.
The downfall of the American Republic lies in too many laws, not too few. It lies in the substitution of government control for self-control. I think this is what Ben Franklin meant when in response to the question of what type of government we created, he said:
“A Republic, if you can keep it.”
More laws augur less stability and therefore, less liberty. An irrefutable truth is this: that which governs best is that which governs least.