e g r e g o r e s: The "Unconstitutional" Canard

Thursday, January 6, 2011

The "Unconstitutional" Canard

"We believe that the Constitution of the United States is the greatest charter of human liberty ever conceived by the mind of man."
[Article One, Platform of the States' Rights Democratic Party, 1948]

Prior to the election of Franklin D. Roosevelt, the Supreme Court had repeatedly torpedoed all attempts to pass federal legislation outlawing child labor, regulating working hours, establishing a minimum wage, protecting the right of workers to form labor unions, and so forth. These were all deemed to be "unconstitutional"!

Even after FDR's election, the Supreme Court continued to strike down many provisions of the New Deal on the same grounds. Finally, Roosevelt reminded the Court that the Constitution allowed him, in theory, to appoint as many Supreme Court Justices as he pleased. At first the Justices thought he was bluffing. But as the Judiciary Reorganization Act of 1937 (sometimes called Roosevelt's "court packing plan") began to work its way through Congress, suddenly the nation's highest court began to change its tune. Eventually that bill failed, but so did the attempted judicial activism of right-wing Justices opposed to the New Deal.

In 1948, President Harry Truman ordered the desegregation of the US military and established the President's Committee on Civil Rights. Worse still, in the eyes of some die-hard bigots, the 1948 Democratic Convention adopted a Civil Rights plank, at which point a number of southern Democrats walked out of the Convention. These southern Democrats soon announced the formation of a new party, the first plank of whose unanimously adopted platform states proudly: "We believe that the Constitution of the United States is the greatest charter of human liberty ever conceived by the mind of man."

But the Civil Rights movement continued to make progress, all the while being opposed by those who proclaimed their undying love for the Constitution. When the University of Alabama was ordered, by a federal judge, to allow black students to enroll, then Governor George Wallace delivered his famous "school house door" speech in support of segregation, in which he used the word "Constitution" 18 times.

After delivering that speech, George Wallace stood aside to allow Vivian Malone Jones and James Hood, accompanied by federal marshalls and Alabama National Guard troops, to enter Foster Auditorium and register as students.

2 comments:

Kullervo said...: I'm honestly not sure how its a "canard." Developing the Constitutional basis for the kinds of laws you are talking about was honestly problematic. At the end of the day, the 13th and 14th amendments proved to be fairly serviceable, but since the question of "constitutionality" is developed within an ongoing interpretive framework, the issue is a legitimate one and one on which reasonable minds can surely differ, especially when dealing with issues on the cutting edge of developing law.

What many people do not fully realize is that the New Deal ushered in/accompanied what was possibly the most radical philosophical upheaval in our legal system since the Constitution was ratified. The New Deal was unconstitutional, and so our legal conception of the Constitution changed to accomodate it.

A law isn't consitutional just because we think its a good law. That's purposely not how the constitution works.; January 6, 2011 at 4:39 PM
Apuleius Platonicus said...: Legal arguments one way or another are not canards.

It's when people argue, for example, that proponents of child labor laws are part of an evil conspiracy to destroy the Constitution, then it is a canard.; January 6, 2011 at 8:38 PM

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FAR LEFT: "Goddess of Freedom", sculpture by Thomas Crawford, placed atop the US Capitol in 1863. CENTER: from the painting "Bacchante", by William Adolphe Bouguereau, 1894. FAR RIGHT: "The Tyrannicdes", Roman copies of the original sculpture by Antenor from Athens (ca. 408 BC), commemorating Harmodius and Aristogeiton. ALSO shown are a practitioner of African Traditional Religion, Hypatia and her father Theon, the Saxon Heathen war leader Widukind, Crazy Horse, Sri Aurobindo and Alexandra David-Neel.

"The part of life we really live is small."

Seneca: De Brevitate Vitae

The majority of mortals, Paulinus, complain bitterly of the spitefulness of Nature, because we are born for a brief span of life, because even this space that has been granted to us rushes by so speedily and so swiftly that all save a very few find life at an end just when they are getting ready to live. Nor is it merely the common herd and the unthinking crowd that bemoan what is, as men deem it, an universal ill; the same feeling has called forth complaint also from men who were famous. It was this that made the greatest of physicians exclaim that "life is short, art is long;" it was this that led Aristotle, while expostulating with Nature, to enter an indictment most unbecoming to a wise man - that, in point of age, she has shown such favour to animals that they drag out five or ten lifetimes, but that a much shorter limit is fixed for man, though he is born for so many and such great achievements. It is not that we have a short space of time, but that we waste much of it. Life is long enough, and it has been given in sufficiently generous measure to allow the accomplishment of the very greatest things if the whole of it is well invested. But when it is squandered in luxury and carelessness, when it is devoted to no good end, forced at last by the ultimate necessity we perceive that it has passed away before we were aware that it was passing. So it is - the life we receive is not short, but we make it so, nor do we have any lack of it, but are wasteful of it. Just as great and princely wealth is scattered in a moment when it comes into the hands of a bad owner, while wealth however limited, if it is entrusted to a good guardian, increases by use, so our life is amply long for him who orders it properly.

Why do we complain of Nature? She has shown herself kindly; life, if you know how to use it, is long. But one man is possessed by an avarice that is insatiable, another by a toilsome devotion to tasks that are useless; one man is besotted with wine, another is paralyzed by sloth; one man is exhausted by an ambition that always hangs upon the decision of others, another, driven on by the greed of the trader, is led over all lands and all seas by the hope of gain; some are tormented by a passion for war and are always either bent upon inflicting danger upon others or concerned about their own; some there are who are worn out by voluntary servitude in a thankless attendance upon the great; many are kept busy either in the pursuit of other men's fortune or in complaining of their own; many, following no fixed aim, shifting and inconstant and dissatisfied, are plunged by their fickleness into plans that are ever new; some have no fixed principle by which to direct their course, but Fate takes them unawares while they loll and yawn - so surely does it happen that I cannot doubt the truth of that utterance which the greatest of poets delivered with all the seeming of an oracle: "The part of life we really live is small." For all the rest of existence is not life, but merely time. Vices beset us and surround us on every side, and they do not permit us to rise anew and lift up our eyes for the discernment of truth, but they keep us down when once they have overwhelmed us and we are chained to lust. Their victims are never allowed to return to their true selves; if ever they chance to find some release, like the waters of the deep sea which continue to heave even after the storm is past, they are tossed about, and no rest from their lusts abides. Think you that I am speaking of the wretches whose evils are admitted? Look at those whose prosperity men flock to behold; they are smothered by their blessings. To how many are riches a burden! From how many do eloquence and the daily straining to display their powers draw forth blood! How many are pale from constant pleasures! To how many does the throng of clients that crowd about them leave no freedom! In short, run through the list of all these men from the lowest to the highest - this man desires an advocate, this one answers the call, that one is on trial, that one defends him, that one gives sentence; no one asserts his claim to himself, everyone is wasted for the sake of another. Ask about the men whose names are known by heart, and you will see that these are the marks that distinguish them: A cultivates B and B cultivates C; no one is his own master. And then certain men show the most senseless indignation - they complain of the insolence of their superiors, because they were too busy to see them when they wished an audience! But can anyone have the hardihood to complain of the pride of another when he himself has no time to attend to himself? After all, no matter who you are, the great man does sometimes look toward you even if his face is insolent, he does sometimes condescend to listen to your words, he permits you to appear at his side; but you never deign to look upon yourself, to give ear to yourself. There is no reason, therefore, to count anyone in debt for such services, seeing that, when you performed them, you had no wish for another's company, but could not endure your own.

Epictetus: On Freedom
[Discourses IV.1]
He is free who lives as he likes; who is not subject to compulsion, to restraint, or to violence; whose pursuits are unhindered, his desires successful, his aversions unincurred. Who, then, would wish to lead a wrong course of life? "No one." Who would live deceived, erring, unjust, dissolute, discontented, dejected? "No one." No wicked man, then, lives as he likes; therefore no such man is free. And who would live in sorrow, fear, envy, pity, with disappointed desires and unavailing aversions? "No one." Do we then find any of the wicked exempt from these evils? "Not one." Consequently, then, they are not free.

If some person who has been twice consul should hear this, he will forgive you, provided you add, "but you are wise, and this has no reference to you." But if you tell him the truth, that, in point of slavery, he does not necessarily differ from those who have been thrice sold, what but chastisement can you expect? "For how," he says, "am I a slave? My father was free, my mother free. Besides, I am a senator, too, and the friend of Caesar, and have been twice consul, and have myself many slaves." In the first place, most worthy sir, perhaps your father too was a slave of the same kind; and your mother, and your grandfather, and all your series of ancestors. But even were they ever so free, what is that to you? For what if they were of a generous, you of a mean spirit; they brave, and you a coward; they sober, and you dissolute?

"But what," he says, "has this to do with my being a slave? " Is it no part of slavery to act against your will, under compulsion, and lamenting? "Be it so. But who can compel me but the master of all, Caesar?" By your own confession, then, you have one master; and let not his being, as you say, master of all, give you any comfort; for then you are merely a slave in a large family. Thus the Nicopolitans, too, frequently cry out, "By the genius of Caesar we are free!"

For the present, however, if you please, we will let Caesar alone. But tell me this. Have you never been in love with any one, either of a servile or liberal condition? "Why, what has that to do with being slave or free?" Were you never commanded anything by your mistress that you did not choose? Have you never flattered your fair slave? Have you never kissed her feet? And yet if you were commanded to kiss Caesar's feet, you would think it an outrage and an excess of tyranny. What else is this than slavery? Have you never gone out by night where you did not desire? Have you never spent more than you chose? Have you not sometimes uttered your words with sighs and groans? Have you never borne to be reviled and shut out of doors? But if you are ashamed to confess your own follies, see what Thrasonides says and does; who, after having fought more battles perhaps than you, went out by night, when [his slaves Geta would not dare to go; nay, had he been compelled to do it, would have gone bewailing and lamenting the bitterness of servitude. And what says he afterwards? "A contemptible girl has enslaved me, whom no enemy ever enslaved." Wretch ! to be the slave of a girl and a contemptible girl too! Why, then, do you still call yourself free? Why do you boast your military expeditions? Then he calls for a sword, and is angry with the person who, out of kindness, denies it; and sends presents to her who hates him; and begs, and weeps, and then again is elated on every little success. But what elation? Is he raised above desire or fear?

Consider what is our idea of freedom in animals. Some keep tame lions, and feed them and even lead them about; and who will say that any such lion is free? Nay, does he not live the more slavishly the more he lives at ease? And who that had sense and reason would wish to be one of those lions? Again, how much will caged birds suffer in trying to escape? Nay, some of them starve themselves rather than undergo such a life; others are saved only with difficulty and in a pining condition; and the moment they find any opening, out they go. Such a desire have they for their natural freedom, and to be at their own disposal, and unrestrained. "And what harm can this confinement do you?" "What say you? I was born to fly where I please, to live in the open air, to sing when I please. You deprive me of all this, and then ask what harm I suffer?"

Hence we will allow those only to be free who will not endure captivity, but, so soon as they are taken, die and so escape. Thus Diogenes somewhere says that the only way to freedom is to die with ease. And he writes to the Persian king, "You can no more enslave the Athenians than you can fish." "How? Can I not get possession of them?" "If you do," said he, "they will leave you, and be gone like fish. For catch a fish, and it dies. And if the Athenians, too, die as soon as you have caught them, of what use are your warlike preparations? " This is the voice of a free man who had examined the matter in earnest, and, as it might be expected, found it all out. But if you seek it where it is not, what wonder if you never find it?

A slave wishes to be immediately set free. Think you it is because he is desirous to pay his fee [of manumission] to the officer? No, but because he fancies that, for want of acquiring his freedom, he has hitherto lived under restraint and unprosperously. "If I am once set free," he says, "it is all prosperity; I care for no one; I can speak to all as being their equal and on a level with them. I go where I will, I come when and how I will." He is at last made free, and presently having nowhere to eat he seeks whom he may flatter, with whom he may sup. He then either submits to the basest and most infamous degradation, and if he can obtain admission to some great man's table, falls into a slavery much worse than the former; or perhaps, if the ignorant fellow should grow rich, he doats upon some girl, laments, and is unhappy, and wishes for slavery again. " For what harm did it do me? Another clothed me, another shod me, another fed me, another took care of me when I was sick. It was but in a few things, by way of return, I used to serve him. But now, miserable wretch ! what do I suffer, in being a slave to many, instead of one ! Yet, if I can be promoted to equestrian rank, I shall live in the utmost prosperity and happiness." In order to obtain this, he first deservedly suffers; and as soon as he has obtained it, it is all the same again. "But then," he says, "if I do but get a military command, I shall be delivered from all my troubles." He gets a military command. He suffers as much as the vilest rogue of a slave; and, nevertheless, he asks for a second command and a third; and when he has put the finishing touch, and is made a senator, then he is a slave indeed. When he comes into the public assembly, it is then that he undergoes his finest and most splendid slavery.

[It is needful] not to be foolish, but to learn what Socrates taught, the nature of things; and not rashly to apply general principles to particulars. For the cause of all human evils is the not being able to apply general principles to special cases. But different people have different grounds of complaint; one, for instance, that he is sick. That is not the trouble; it is in his principles. Another, that he is poor; another, that he has a harsh father and mother; another, that he is not in the good graces of Caesar. This is nothing else but not understanding how to apply our principles. For who has not an idea of evil, that it is hurtful; that it is to be avoided; that it is by all means to be prudently guarded against? One principle does not contradict another, except when it comes to be applied. What, then, is this evil, --thus hurtful and to be avoided? "Not to be the friend of Caesar," says some one. He is gone; he has failed in applying his principles; he is embarrassed; he seeks what is nothing to the purpose. For if he comes to be Caesar's friend, he is still no nearer to what he sought. For what is it that every man seeks? To be secure, to be happy, to do what he pleases without restraint and without compulsion. When he becomes the friend of Caesar, then does he cease to be restrained; to be compelled? Is he secure? Is he happy? Whom shall we ask? Whom can we better credit than this very man who has been his friend? Come forth and tell us whether you sleep more quietly now than before you were the friend of Caesar. You presently hear him cry, "Leave off, for Heaven's sake! and do not insult me. You know not the miseries I suffer; there is no sleep for me; but one comes and says that Caesar is already awake; another, that he is just going out. Then follow perturbations, then cares." Well, and when did you use to sup the more pleasantly,- formerly, or now? Hear what he says about this too. When he is not invited, he is distracted; and if he is, he sups like a slave with his master, solicitous all the while not to say or do anything foolish. And what think you? Is he afraid of being whipped like a slave? No such easy penalty. No; but rather, as becomes so great a man, Caesar's friend, of losing his head. And when did you bathe the more quietly; when did you perform your exercises the more at your leisure; in short, which life would you rather wish to live, -your present, or the former? I could swear there is no one so stupid and insensible as not to deplore his miseries, in proportion as he is the more the friend of Caesar.

Since, then, neither they who are called kings nor the friends of kings live as they like, who, then, after all, is free? Seek, and you will find; for you are furnished by nature with means for discovering the truth. But if you are not able by these alone to find the consequence, hear them who have sought it. What do they say? Do you think freedom a good? "The greatest." Can any one, then, who attains the greatest good be unhappy or unsuccessful in his affairs? " No." As many, therefore, as you see unhappy, lamenting, unprosperous, -confidently pronounce them not free. " I do." Henceforth, then, we have done with buying and selling, and such like stated conditions of becoming slaves. For if these concessions hold, then, whether the unhappy man be a great or a little king, - of consular or bi-consular dignity, - he is not free. " Agreed."

Further, then, answer me this: do you think freedom to be something great and noble and valuable? "How should I not?" Is it possible, then, that he who acquires anything so great and valuable and noble should be of an abject spirit? "It is not." Whenever, then, you see any one subject to another, and flattering him contrary to his own opinion, confidently say that he too is not free; and not only when he does this for a supper, but even if it be for a government, nay, a consulship. Call those indeed little slaves who act thus for the sake of little things; and call the others, as they deserve, great slaves. "Be this, too, agreed." Well, do you think freedom to be something independent and self-determined? "How can it be otherwise?" Him, then, whom it is in the power of another to restrain or to compel, affirm confidently to be by no means free. And do not heed his grandfathers or great-grandfathers, or inquire whether he has been bought or sold; but if you hear him say from his heart and with emotion, "my master," though twelve Lictors should march before him, call him a slave. And if you should hear him say, "Wretch that I am! what do I suffer ! " call him a slave. In short, if you see him wailing, complaining, unprosperous, call him a slave, even in purple.

"Suppose, then, that he does nothing of all this." Do not yet say that he is free; but learn whether his principles are in any event liable to compulsion, to restraint, or disappointment; and if you find this to be the case, call him a slave, keeping holiday during the Saturnalia. Say that his master is abroad; that he will come presently; and you will know what he suffers. "Who will come? " Whoever has the power either of bestowing or of taking away any of the things he desires.

"Have we so many masters, then?" We have. For, prior to all such, we have the things themselves for our masters. Now they are many; and it is through these that the men who control the things inevitably become our masters too. For no one fears Caesar himself; but death, banishment, confiscation, prison, disgrace. Nor does any one love Caesar unless he be a person of great worth; but we love riches, the tribunate, the praetorship, the consulship. When we love or hate or fear such things, they who have the disposal of them must necessarily be our masters. Hence we even worship them as gods. For we consider that whoever has the disposal of the greatest advantages is a deity; and then further reason falsely, "But such a one has the control of the greatest advantages; therefore he is a deity." For if we reason falsely, the final inference must be also false.

What is it, then, that makes a man free and independent? For neither riches, nor consulship, nor the command of provinces nor of kingdoms, can make him so; but something else must be found. What is it that keeps any one from being hindered and restrained in penmanship, for instance? " The science of penmanship." In music? "The science of music." Therefore in life too, it must be the science of living. As you have heard it in general, then, consider it likewise in particulars. Is it possible for him to be unrestrained who desires any of those things that are within the power of others? "No." Can he avoid being hindered? "No." Therefore neither can he be free. Consider, then, whether we have nothing or everything in our own sole power, - or whether some things are in our own power and some in that of others. "What do you mean?" When you would have your body perfect, is it in your own power, or is it not? "It is not." When you would be healthy? "It is not." When you would be handsome? "It is not." When you would live or die? "It is not." Body then is not our own; but is subject to everything that proves stronger than itself. "Agreed." Well; is it in your own power to have an estate when you please, and such a one as you please? "No." Slaves? "No." Clothes? "No." A house? "No." Horses? " Indeed, none of these." Well, if you desire ever so earnestly to have your children live, or your wife, or your brother, or your friends, is it in your own power? " No, it is not."

Will you then say that there is nothing independent, which is in your own power alone, and unalienable? See if you have anything of this sort. "I do not know." But consider it thus: can any one make you assent to a falsehood? " No one." In the matter of assent, then, you are unrestrained and unhindered. "Agreed." Well, and can any one compel you to exert your aims towards what you do not like? "He can. For when he threatens me with death, or fetters, he thus compels me." If, then, you were to despise dying or being fettered, would you any longer regard him? "No." Is despising death, then, an action in our power, or is it not? "It is." Is it therefore in your power also to exert your aims towards anything, or is it not? "Agreed that it is. But in whose power is my avoiding anything? " This, too, is in your own. "What then if, when I am exerting myself to walk, any one should restrain me? What part of you can he restrain? Can he restrain your assent? " No, but my body." Ay, as he may a stone. "Be it so. But still I cease to walk." And who claimed that walking was one of the actions that cannot be restrained? For I only said that your exerting yourself towards it could not be restrained. But wherever the body and its assistance are essential, you have already heard that nothing is in your power. "Be this, too, agreed." And can any one compel you to desire against your Will? "No one." Or to propose, or intend, or, in short, not to be beguiled by the appearances of things? "Nor this. But when I desire anything, he can restrain me from obtaining what I desire." If you desire anything that is truly within your reach, and that cannot be restrained, how can he restrain you? "By no means." And pray who claims that he who longs for what depends on another will be free from restraint?

"May I not long for health, then? " By no means; nor for anything else that depends on another; for what is not in your own power, either to procure or to preserve when you will, that belongs to another. Keep off not only your hands from it, but even more than these, your desires. Otherwise you have given yourself up as a slave; you have put your neck under the yoke, if you admire any of the things which are not your own, but which are subject and mortal, to which of them soever you are attached. " Is not my hand my own?" It is a part of you, but it is by nature clay, liable to restraint, to compulsion; a slave to everything stronger than itself. And why do I say, your hand? You ought to hold your whole body but as a useful ass, with a pack-saddle on, so long as may be, so long as it is allowed you. But if there should come a military conscription, and a soldier should lay hold on it, let it go. Do not resist, or murmur; otherwise you will be first beaten and lose the ass after all. And since you are thus to regard even the body itself, think what remains to do concerning things to be provided for the sake of the body. If that be an ass, the rest are but bridles, pack-saddles, shoes, oats, hay for him. Let these go too. Quit them yet more easily and expeditiously. And when you are thus prepared and trained to distinguish what belongs to others from your own; what is liable to restraint from what is not; to esteem the one your own property, but not the other; to keep your desire, to keep your aversion, carefully regulated by this point, -whom have you any longer to fear? " No one." For about what should you be afraid, - about what is your own, in which consists the essence of good and evil? And who has any power over this? Who can take it away? Who can hinder you, any more than God can be hindered? But are you afraid for body, for possessions, for what belongs to others, for what is nothing to you? And what have you been studying all this while, but to distinguish between your own and that which is not your own; what is in your power and what is not in your power; what is liable to restraint and what is not? And for what purpose have you applied to the philosophers, - that you might nevertheless be disappointed and unfortunate? No doubt you will be exempt from fear and perturbation! And what is grief to you? For whatsoever we anticipate with fear, we endure with grief. And for what will you any longer passionately wish? For you have acquired a temperate and steady desire of things dependent on will, since they are accessible and desirable; and you have no desire of things uncontrollable by will. so as to leave room for that irrational, and impetuous, and precipitate passion.

Since then you are thus affected with regard to things, what man can any longer be formidable to you? What has man that he can be formidable to man, either in appearance, or speech, or mutual intercourse? No more than horse to horse, or dog to dog, or bee to bee. But things are formidable to every one, and whenever any person can either give these to another, or take them away, he becomes formidable too. "How, then, is this citadel to be destroyed?" Not by sword or fire, but by principle. For if we should demolish the visible citadel, shall we have demolished also that of some fever, of some fair woman,-in short, the citadel [of temptation] within ourselves; and have turned out the tyrants to whom we are subject upon all occasions and every day, sometimes the same, sometimes others? From hence we must begin; hence demolish the citadel, and turn out the tyrants, -give up body, members, riches, power, fame, magistracies, honors, children, brothers, friends; esteem all these as belonging to others. And if the tyrants be turned out from hence, why should I also demolish the external citadel, at least on my own account? For what harm to me from its standing? Why should I turn out the guards? For in what point do they affect me? It is against others that they direct their fasces, their staves, and their swords. Have I ever been restrained from what I willed, or compelled against my will? Indeed, how is this possible? I have placed my pursuits under the direction of God. Is it his will that I should have a fever? It is my will too. Is it his will that I should pursue anything? It is my will too. Is it his will that I should desire? It is my will too. Is it his will that I should obtain anything? It is mine too. Is it not his will? It is not mine. Is it his will that I should be tortured? Then it is my will to be tortured. Is it his will that I should die? Then it is my will to die. Who can any longer restrain or compel me, contrary to my own opinion? No more than Zeus.

It is thus that cautious travellers act. Does some one hear that the road is beset by robbers? He does not set out alone, but waits for the retinue of an ambassador or quaestor or proconsul, and when he has joined himself to their company, goes along in safety. Thus does the prudent man act in the world. There are many robberies, tyrants, storms, distresses, losses of things most dear. Where is there any refuge? How can he go alone unattacked? What retinue can he wait for, to go safely through his journey? To what company shall he join himself, -to some rich man; to some consular senator? And what good will that do me? He may be robbed himself, groaning and lamenting. And what if my fellow-traveller himself should turn against me and rob me? What shall I do? I say I will be the friend of Caesar. While I am his companion, no one will injure me, Yet before I can become illustrious enough for this, what must I bear and suffer ! How often, and by how many, must I be robbed ! And then, if I do become the friend of Caesar, he too is mortal; and if, by any accident, he should become my enemy, where can I best retreat, -to a desert? Well, and may not a fever come there? What can be done, then? Is it not possible to find a fellow-traveller safe, faithful, brave, incapable of being surprised? A person who reasons thus, understands and considers that if he joins himself to God, he shall go safely through his journey.

"How do you mean, join himself? " That whatever is the will of God may be his will too; that whatever is not the will of God may not be his. "How, then, can this be done?" Why, how otherwise than by considering the workings of God's power and his administration? What has he given me to be my own, and independent? What has he reserved to himself? He has given me whatever depends on will. The things within my power he has made incapable of hindrance or restraint. Bat how could he make a body of clay incapable of hindrance? Therefore he has subjected possessions, furniture, house, children, wife, to the revolutions of the universe. Why, then, do I fight against God? Why do I will to retain that which depends not on will; that which is not granted absolutely, but how, - in such a manner and for such a time as was thought proper? But he who gave takes away. Why, then, do I resist? Besides being a fool, in contending with a stronger than my self, I shall be unjust, which is a more important consideration. For whence had I these things, when I came into the world? My father gave them to me. And who gave them to him? And who made the sun; who the fruits; who the seasons; who their connection and relations with each other? And after you have received all, and even your very self, from another, are you angry with the giver, and do you complain, if he takes anything away from you? Who are you; and for what purpose did you come? Was it not he who brought you here? Was it not he who showed you the light? Hath not he given you companions? Hath not he given you senses? Hath not he given you reason? And as whom did he bring you here? Was it not as a mortal? Was it not as one to live with a little portion of flesh upon earth, and to see his administration; to behold the spectacle with him, and partake of the festival for a short time? After having beheld the spectacle and the solemnity, then, as long as it is permitted you, will you not depart when he leads you out, adoring and thankful for what you have heard and seen? "No; but I would enjoy the feast still longer." So would the initiated [in the mysteries], too, be longer in their initiation; so, perhaps, would the spectators at Olympia see more combatants. But the solemnity is over. Go away. Depart like a grateful and modest person; make room for others. Others, too, must be born as you were; and when they are born must have a place, and habitations, and necessaries. But if the first do not give way, what room is there left? Why are you insatiable, unconscionable? Why do you crowd the world?

"Ay, but I would have my wife and children with me too." Why, are they yours? Are they not the Giver's? Are they not his who made you also? Will you not then quit what belongs to another? Will you not yield to your Superior? "Why, then, did he bring me into the world upon these conditions?" Well, if it is not worth your while, depart. He has no need of a discontented spectator. He wants such as will share the festival; make part of the chorus; who will extol, applaud, celebrate the solemnity. He will not be displeased to see the wretched and fearful dismissed from it. For when they were present they did not behave as at a festival, nor fill a proper place, but lamented, found fault with the Deity, with their fortune, with their companions. They were insensible both of their advantages and of the powers which they received for far different purposes, - the powers of magnanimity, nobleness of spirit, fortitude, and that which now concerns us, freedom. "For what purpose, then, have I received these things?" To use them. "How long?" As long as he who lent them pleases. If, then, they are not necessary, do not make an idol of them, and they will not be so; do not tell yourself that they are necessary, when they are not.

This should be our study from morning till night beginning with the least and frailest things, as with earthenware, with glassware. Afterwards proceed to a suit of clothes, a dog, a horse, an estate; thence to yourself, body, members, children, wife, brothers. Look everywhere around you, and be able to detach yourself from these things. Correct your principles. Permit nothing to cleave to you that is not your own; nothing to grow to you that may give you agony when it is torn away. And say, when you are daily training yourself as you do here, not that you act the philosopher, which may be a presumptuous claim, but that you are asserting your freedom. For this is true freedom. This is the freedom that Diogenes gained from Antisthenes, and declared it was impossible that he should ever after be a slave to any one. Hence, when he was taken prisoner, how did he treat the pirates? Did he call any of them master? I do not mean the name, for I am not afraid of a word, but of the disposition from whence the word proceeds. How did he reprove them for feeding their prisoners ill? How was he sold? Did he seek a master? No, but a slave. And when he was sold, how did he converse with his lord? He immediately disputed with him whether he ought to be dressed or shaved in the manner he was; and how he ought to bring up his children. And where is the wonder? For if the same master had bought some one to instruct his children in gymnastic exercises, would he in those exercises have treated him as a servant or as a master? And so if he had bought a physician or an architect. In every department the skilful must necessarily be superior to the unskilful. What else, then, can he be but master, who possesses the universal knowledge of life? For who is master in a ship? The pilot. Why? Because whoever disobeys him is a loser. "But a master can put me in chains." Can he do it, then, without being a loser? "I think not, indeed." But because he must be a loser, he evidently must not do it; for no one acts unjustly without being a loser. "And how does he suffer, who puts his own slave in chains?" What think you? From the very fact of chaining him. This you yourself must grant, if you would hold to the doctrine that man is not naturally a wild, but a gentle, animal. For when is it that a vine is in a bad condition? "When it is in a condition contrary to its nature." How is it with a cock? "The same." It is therefore the same with a man also. What is his nature, -to bite and kick and throw into prison and cut off heads? No, but to do good, to assist, to indulge the wishes of others. Whether you will or not, then, he is in a bad condition whenever he acts unreasonably. "And so was not Socrates in a bad condition? " No, but his judges and accusers. " Nor Helvidius, at Rome? " No, but his murderer. " How do you talk?" Why, just as you do. You do not call that cock in a bad condition which is victorious, and yet wounded; but that which is conquered and comes off unhurt. Nor do you call a dog happy which neither hunts nor toils; but when you see him perspiring, and distressed, and panting with the chase. In what do we talk paradoxes? If we say that the evil of everything consists in what is contrary to its nature, is this a paradox? Do you not say it with regard to other things? Why, therefore, in the case of man alone, do you take a different view? But further, it is no paradox to say that by nature man is gentle and social and faithful. "This is none." How then [is it a paradox to say] that, when he is whipped, or imprisoned, or beheaded, he is not hurt? If he suffers nobly, does he not come off even the better and a gainer? But he is the person hurt who suffers the most miserable and shameful evils; who, instead of a man, becomes a wolf, a viper, or a hornet.

Come, then; let us recapitulate what has been granted. The man who is unrestrained, who has all things in his power as he wills, is free; but he who may be restrained or compelled or hindered, or thrown into any condition against his will, is a slave. "And who is unrestrained? " He who desires none of those things that belong to others. "And what are those things which belong to others?" Those which are not in our own power, either to have or not to have; or to have them thus or so. Body, therefore, belongs to another; its parts to another; property to another. If, then, you attach yourself to any of these as your own, you will be punished as he deserves who desires what belongs to others. This is the way that leads to freedom, this the only deliverance from slavery, to be able at length to say, from the bottom of one's soul,-

“Conduct me, Zeus, and thou, O Destiny,
Wherever your decrees have fixed my lot."

But what say you, philosopher? A tyrant calls upon you to speak something unbecoming you. Will you say it, or will you not? "Stay, let me consider." Would you consider now? And what did you use to consider when you were in the schools? Did you not study what things were good and evil, and what indifferent? "I did." Well, and what were the opinions which pleased us? "That just and fair actions were good; unjust and base ones, evil." Is living a good? "No." Dying, an evil? "No." A prison? "No." And what did a mean and dishonest speech, the betraying a friend, or the flattering a tyrant, appear to us? "Evils." Why, then, are you still considering, and have not already considered and come to a resolution? For what sort of a consideration is this: "Whether I ought, when it is in my power, to procure myself the greatest good, instead of procuring myself the greatest evil." A fine and necessary consideration, truly, and deserving mighty deliberation ! Why do you trifle with us, man? No one ever needed to consider any such point; nor, if you really imagined things fair and honest to be good, things base and dishonest to be evil, and all other things indifferent, would you ever be in such a perplexity as this, or near it; but you would presently be able to distinguish by your understanding as you do by your sight. For do you ever have to consider whether black is white, or whether light is heavy? Do you not follow the plain evidence of your senses? Why, then, do you say that you are now considering whether things indifferent are to be avoided, rather than evils? The truth is, you have no principles; for things indifferent do not impress you as such, but as the greatest evils; and these last, on the other hand, as things of no importance.

For thus has been your practice from the first. "Where am I? If I am in the school and there is an audience, I talk as the philosophers do; but if I am out of the school, then away with this stuff that belongs only to scholars and fools." This man is accused by the testimony of a philosopher, his friend; this philosopher turns parasite; another hires himself out for money; a third does that in the very senate. When one is not governed by appearances, then his principles speak for themselves. You are a poor cold lump of prejudice, consisting of mere phrases, on which you hang as by a hair. You should preserve yourself firm and practical, remembering that you are to deal with real things. In what manner do you hear, - I will not say that your child is dead, for how could you possibly bear that?- but that your oil is spilled, your wine consumed? Would that some one, while you are bawling, would only say this: "Philosopher, you talk quite otherwise when in the schools. Why do you deceive us? Why, when you are a worm, do you call yourself a man? " I should be glad to be near one of these philosophers while he is revelling in debauchery, that I might see how he demeans himself, and what sayings he utters; whether he remembers the title he bears and the discourses which he hears, or speaks, or reads.

"And what is all this to freedom?" It lies in nothing else than this, - whether you rich people approve or not. "And who affords evidence of this? " Who but yourselves? You who have a powerful master, and live by his motion and nod, and faint away if he does but look sternly upon you, who pay your court to old men and old women, and say, " I cannot do this or that, it is not in my power." Why is it not in your power? Did you not just now contradict me, and say you were free? " But Aprylla has forbidden me." Speak the truth, then, slave, and do not run away from your masters nor deny them, nor dare to assert your freedom, when you have so many proofs of your slavery. One might indeed find some excuse for a person compelled by love to do something contrary to his opinion, even when at the same time he sees what is best without having resolution enough to follow it, since he is withheld by something overpowering, and in some measure divine. But who can bear with you, who are in love with old men and old women, and perform menial offices for them, and bribe them with presents, and wait upon them like a slave when they are sick; at the same time wishing they may die, and inquiring of the physician whether their distemper be yet mortal? And again, when for these great and venerable magistracies and honors you kiss the hands of the slaves of others; so that you are the slave of those who are not free themselves ! And then you walk about in state, a praetor or a consul. Do I not know how you came to be praetor; whence you received the consulship; who gave it to you? For my own part, I would not even live, if I must live by Felicio's means, and bear his pride and slavish insolence. For I know what a slave is, blinded by what he thinks good fortune.

" Are you free yourself, then? " you may ask. By Heaven, I wish and pray for it. But I own I cannot yet face my masters. I still pay a regard to my body, and set a great value on keeping it whole; though, for that matter, it is not whole. But I can show you one who was free, that you may no longer seek an example. Diogenes was free. " How so?" Not because he was of free parents, for he was not; but because he was so in himself; because he had cast away all which gives a handle to slavery; nor was there any way of getting at him, nor anywhere to lay hold on him, to enslave him. Everything sat loose upon him; everything only just hung on. If you took hold on his possessions, he would rather let them go than follow you for them; if on his leg, he let go his leg; if his body, he let go his body; acquaintance, friends, country, just the same. For he knew whence he had them, and from whom, and upon what conditions he received them. But he would never have forsaken his true parents, the gods, and his real country [the universe]; nor have suffered any one to be more dutiful and obedient to them than he; nor would any one have died more readily for his country than he. He never had to inquire whether he should act for the good of the whole universe; for he remembered that everything that exists belongs to that administration, and is commanded by its ruler. Accordingly, see what he himself says and writes. "Upon this account," said he, "O Diogenes, it is in your power to converse as you will with the Persian monarch and with Archidamus, king of the Lacedemonians." Was it because he was born of free parents? Or was it because they were descended from slaves, that all the Athenians, and all the Lacedemonians, and Corinthians, could not converse with them as they pleased; but feared and paid court to them? Why then is it in your power, Diogenes? "Because I do not esteem this poor body as my own. Because I want nothing. Because this and nothing else is a law to me." These were the things that enabled him to be free.

And that you may not urge that I show you the example of a man clear of incumbrances, without a wife or children or country or friends or relations, to bend and draw him aside, take Socrates, and consider him, who had a wife and children, but held them not as his own; had a country, friends, relations, but held them only so long as it was proper, and in the manner that was proper; submitting all these to the law and to the obedience due to it. Hence, when it was proper to fight, he was the first to go out, and exposed himself to danger without the least reserve. But when he was sent by the thirty tyrants to apprehend Leon, because he esteemed it a base action, he did not even deliberate about it; though he knew that, perhaps, he might die for it. But what did that signify to him? For it was something else that he wanted to preserve, not his mere flesh; but his fidelity, his honor, free from attack or subjection. And afterwards, when he was to make a defence for his life, does he behave like one having children, or a wife? No, but like a single man. And how does he behave, when required to drink the poison? When he might escape, and Crito would have him escape from prison for the sake of his children, what says he? Does he esteem it a fortunate opportunity? How should he? But he considers what is becoming, and neither sees nor regards anything else. " For I am not desirous," he says, " to preserve this pitiful body; but that part which is improved and preserved by justice, and impaired and destroyed by injustice." Socrates is not to be basely preserved. He who refused to vote for what the Athenians commanded; he who contemned the thirty tyrants; he who held such discourses on virtue and moral beauty, - such a man is not to be preserved by a base action, but is preserved by dying, instead of running away. For even a good actor is preserved as such by leaving off when he ought; not by going on to act beyond his time. " What then will become of your children? " “If I had gone away into Thessaly, you would have taken care of them; and will there be no one to take care of them when I am departed to Hades?” Plato, Crito, i. 5. You see how he ridicules and plays with death. But if it had been you or I, we should presently have proved by philosophical arguments that those who act unjustly are to be repaid in their own way; and should have added, "If I escape I shall be of use to many; if I die, to none." Nay, if it had been necessary, we should have crept through a mouse-hole to get away. But how should we have been of use to any? Where must they have dwelt? If we were useful alive, should we not be of still more use to mankind by dying when we ought and as we ought? And now the remembrance of the death of Socrates is not less, but even more useful to the world than that of the things which he did and said when alive.

Study these points, these principles, these discourses; contemplate these examples if you would be free, if you desire the thing in proportion to its value. And where is the wonder that you should purchase so good a thing at the price of other things, be they never so many and so great? Some hang themselves, others break their necks, and sometimes even whole cities have been destroyed for that which is reputed freedom; and will not you for the sake of the true and secure and inviolable freedom, repay God what he hath given when he demands it? Will you not study not only, as Plato says, how to die, but how to be tortured and banished and scourged; and, in short, how to give up all that belongs to others? If not, you will be a slave among slaves, though you were ten thousand times a consul; and even though you should rise to the palace, you will never be the less so. And you will feel that, though philosophers (as Cleanthes says) do, perhaps, talk contrary to common opinion, yet it is not contrary to reason. For you will find it true, in fact, that the things that are eagerly followed and admired are of no use to those who have gained them; while they who have not yet gained them imagine that, if they are acquired, every good will come along with them; and then, when they are acquired, there is the same feverishness, the same agitation, the same nausea, and the same desire for what is absent. For freedom is not procured by a full enjoyment of what is desired, but by controlling the desire. And in order to know that this is true, take the same pains about these which you have taken about other things. Hold vigils to acquire a set of principles that will make you free. Instead of a rich old man, pay your court to a philosopher. Be seen about his doors. You will not get any disgrace by being seen there. You will not return empty or unprofited if you go as you ought. However, try at least. The trial is not dishonorable.

e g r e g o r e s

Thursday, January 6, 2011

The "Unconstitutional" Canard

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