Ordered Liberty is Not White Supremacy and Does Not Date from 1619

The November 3 election will be an existential moment for the United States. As my friend, mentor, and boss Richard Viguerie has been saying, “it’s the ballgame.”

The Democrat party has been overtaken by radical leftists bent on undermining those parts of the constitutional rule of law that interfere with their Marxist agendas.

People see the corrupt, mentally infirm Joe Biden as a Trojan Horse candidate for the next stage of the Democrats’ Obama-Marxist wing’s transformation of America. Naming the “female Obama” Kamala Harris -- who sank from top-tier status in the Democrat Party primary as her smarmy, unlikeable persona became more widely known -- as his pick for his transition to private (and perhaps wealthier) citizen, provides easy speculation Biden cut a deal with the Obama-Marxist wing.

In the midst of this election year we are seeing widespread assaults on freedom of speech of those who do not share the leftist dogma. Dissenters from the doctrine are labeled “racist.”

The assaults on freedom of speech have been accompanied by rioting and violence in mostly Democrat-run cities under the guise of protests against “institutional” or “systemic” racism in policing and law enforcement. These riots are being conducted by Marxist-anarchists, and leaders of the Democrat party only began to condemn them when the polls reflected negatively on the Party’s chances for November.

On the other side of this ideological civil war are those who believe in the positive aspects of American tradition, with its institutional and systemic protections of ordered liberty. In Donald Trump the conservative grassroots, independents, and sane Democrats have found a leader with the energy, dedication, and cojones lacking in so many establishment GOP leaders.

Conservatives and others who cherish the Judeo-Christian bases of our Anglo-American rule of law, have become the true leaders of American civil rights, with the Democrat party having almost all but abandoning notions of traditional liberalism. Exasperated former New York Times editor Bari Weiss recently issued an insightful warning about her side’s betrayal and abandonment of true American liberalism. She yearns for the old-school principles as:

Not liberal in the narrow, partisan sense, but liberal in the most capacious and distinctly American sense of that word: the belief that everyone is equal because everyone is created in the image of God. The belief in the sacredness of the individual over the group or the tribe. The belief that the rule of law—and equality under that law—is the foundation of a free society. The belief that due process and the presumption of innocence are good and that mob violence is bad. The belief that pluralism is a source of our strength; that tolerance is a reason for pride; and that liberty of thought, faith, and speech are the bedrocks of democracy.

The 2020 Marxist riots and censorship, with their attacks on law and order, have brought a certain clarity about the historical ignorance or willful deceit of the radical leftists in the streets, at the keyboards, and on television.

Slate, for example, touts the “racist roots of formal policing in America.” Malaika Jabali at The Guardian writes, “many researchers consider slave patrols a direct ‘forerunner of modern American law enforcement.’”

The principles of America’s law enforcement system, however, are based in the English system from even before the time of America’s Founding. Those principles are some of the greatest human achievements to protect both law and order, and liberty. That liberty is based in principles of private property and freedom of conscience. And, it is no coincidence that the Marxist riots of 2020 are diametrically opposed to those principles.

Examples of the comprehensive principles underlying the practices of the English system of law and order that influenced America’s are found in Volume II of Sir Mathew Hale’s History of Pleas of the Crown, published posthumously in 1736.

The 17th Century English jurist Hale wrote of “certain officers and ministers of public justice, that virtute officii (by virtue of their office) are empowered by law to arrest felons, or those that are suspected of felony, and that before conviction, and also before indictment.” These officials ranged from predecessors of modern street-walking police and sheriffs to justices of the peace.

The principal purposes of these law enforcement officials was not just to keep “the King’s peace,” in other words, to prevent uprisings or even violence that disrupts the physical safety of people in the community, but to arrest petty thieves and transgressors of private property rights.

Hale goes into great detail describing the protocols and procedures law enforcement officials must follow for the execution of warrants to arrest, warrants to search homes, arrests made without warrants but with probable cause that a crime had been committed, and other duties that to this day are common needs of ordered liberty and security of the community.

Hale was working from a body of law that had developed over centuries, and was based in statutes and court decisions, which we refer to as the “common law.” What is evident from these principles described by Hale is that the English law intended to prevent arbitrary use of law enforcement powers. For example, he writes that “warrants are judicial acts,” which sets forth one of the essential protections against abuses of government authority, the separation of powers.

Among the judicial opinions from which the English common law drew was Semayne’s Case of 1604 by the great jurist Sir Edward Coke, in which he famously stated, “the house of every one is to him as his Castle and Fortress as well for defence against injury and violence, as for his repose.” This case informed the bases of search and seizure principles underlying the Fourth Amendment and judicial opinions interpreting its scope, and the principles of when searches may in fact be unlawful trespass by the government.

Inherent in this English system of law enforcement that was adopted by America are the great principles of justice and protections of liberty found in our Bill of Rights: probable cause, due process, rights of defendants and witnesses, and more. But even with protections of liberty in place, there have always been those who abuse power. That’s not the fault of the systemic protections of ordered liberty.

More importantly, what the American law enforcement system adopted from England relates to what we think of as the “rule of law.”

One of the most celebrated documents of liberty is Magna Carta. Its importance is not only what it said regarding rights, but that it informed the rule of law as applying to -- indeed governing -- government itself.

In his marvelous book Inventing Freedom: How The English-Speaking Peoples Made The Modern World, Daniel Hannan writes of this phenomenon, “[t]he rules did not emanate from the government, but stood above it, binding the King as tightly as they bound the poorest ceorl.” This invention about the rule of law over and governing government helped allay arbitrary power like no concept before, and unleashed liberty and prosperity.

Hannan writes about this basis for the American rule of law, “English exceptionalism was defined with reference, not to racial characteristics, military prowess, or island geography, but to law, liberty, and representative institutions.”

The English rule of law over government itself was never formalized by a written constitution, but it created a fabric of liberty within the system of law enforcement. America took it to the next level. In a 2015 concurring opinion Justice Clarence Thomas described that our written and “overruling constitution . . . was an improvement in the science and practice of government reserved to the American states.”

Had the Democrat party moved to the middle instead of radically lurching leftward, and had Biden, Nancy Pelosi, and Chuck Schumer sided more with moderates such as Tulsi Gabbard, real reforms in law enforcement could have been achieved.  After conservatives watched the criminalization of politics and even an attempted coup by players in the FBI, Justice Department, and others in the Deep State, reforms could have been bipartisan.

Instead, they chose “the Squad” and the radicals who insist America began as racist and must be transformed from its foundations. With that shift to anti-American principles, their side has engaged in riots and street violence, widespread censorship, utter dishonesty in reporting news, an attempt through the New York Times’ 1619 Project to “reframe the country's history,” and an attempted coup of sitting American president.

This election is about preserving the American tradition of the rule of law over not just society, but over government itself. On our side are those who agree with Calvin Coolidge’s 1926 Inspiration of the Declaration of Independence where he said, “If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final. No advance, no progress can be made beyond these propositions.”

This election is the ballgame, folks.

Graphic adapted from the New York Times Magazine

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