The Troubles of Law-Making in Massachusetts
[Lysander Spooner, (unsigned)]
That portion of the people of Massachusetts, who believe in law-making, are at present split up into eight factions, to wit, the Republicans, the Democrats, the Independents, the Prohibitionists, the Greenbackers, the Woman Suffragists, the Colored Men, and Wendell Phillips. All these factions are now in full blast; and are so furious towards each other that we wonder how they manage to live under the same government; and why they endure each other's tyranny. This question has heretofore perplexed us; but Robinson, the Republican candidate for governor, has solved the riddle. Quoting the. constitution of Massachusetts, he says the object of Aw faction is, that we may have "a government of laws, and not of men."
We now understand the whole matter. All the other factions, as well as the Republican, are bent on having " a government of laws, and not of men."
What the laws are, is not the vital matter with any of them. If they cannot have such as they desire, they will take such as they can get. In their eyes bad laws are better than none; for laws they must have; otherwise they cannot have that " government of laws, and not of men," which they are all agreed is indispensable. So they endure each other's laws as best they can; each faction hoping it may sometime be strong enough to make laws for the others.
Thus these factions are all so blinded by their passion for laws, that not one of them sees that "a government of laws" is itself " a government of men," —that is, of the men who make the laws.
Their rage against each other is such that they do not see that they are all contradicting themselves, and making fools of themselves.
Yet they must not be judged too harshly; for the constitution of Massachusetts led them into this absurdity; and the constitution has now stood a hundred years; and during all that time the people of Massachusetts have not found out that "a government of laws" is " a government of men."
Such is the weakness of poor human nature.
Such political blindness is more to be pitied, than blamed; for it is not characteristic of any people to see the absurdities and self-contradictions of their own government. They are too blind worshippers of simple power to look after absurdities and self-contradictions, on the part of their idol.
But this idea, that "a government of laws" is not "a government of men," is not the only absurdity, or self contradiction, to be found in the constitution of Massachusetts. It has this other:
All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them.
This is so far reasonable, that it implies that bad laws may be made and executed, and that all who either make or execute them, ought not only to be held personally accountable for their acts, but to be held accountable to the people themselves, who suffer from such laws.
Now, if this principle were carried out, we should not see eight separate factions scrambling and fighting for the power to make laws. We should probably not see a single man, who would dare to make, and execute upon his fellow-men, a single law that was really of his own invention.
But it seems to be naturally impossible for constitution-makers to declare a sensible idea, and leave it uncontradicted. And so the Massachusetts constitution-makers, instead of leaving the accountability of legislators to stand uncontradicted, proceeded to declare that they should be held to no accountability at all! This they did in these words:
The freedom of deliberation, speech, and debate [including, of course, voting on the laws] in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatever.
This provision is in direct contradiction to the other; and licenses the legislators to make, with perfect impunity, all the bad laws they please. And this is really the only object of the provision; for the idea that honest legislators need a constitutional provision to prevent their being punished by the people for making good laws, is too absurd to be thought of. It is only those who wish to make bad laws, that wish to be protected against all-responsibility for their acts. And this provision was intended solely for their benefit; and that is why we have great volumes filled with laws so bad that nobody dares to be personally responsible for one of them.
But this is not all. The judicial and executive officers must also be protected against all personal responsibility to thee people, who suffer from the bad laws, else they would not dare to execute such laws. So this wise constitution, which pays that all judicial and executive officers ought to be held accountable To The People for their acts, declares that they shall be wholly irresponsible, except to the very legislators who make the laws! As long as they execute all the bad laws the legislators make, they are protected from all responsibility to the people who suffer from such laws!
Who can wonder that the people arc divided into factions under such a constitution as this? Who can wonder that we are cursed with so many gangs of ignorant or unprincipled politicians, all struggling to grasp this irresponsible power over the people? Who can help wondering that the people themselves do not take the power into their own hands, and hold i all these creatures, legislators, judges, governors, and all, personally responsible for their acts?
Perhaps the people of Massachusetts may sometime give up their passion for "a government of laws" and learn that there is but one law — "to live honestly" — that men can rightfully be compelled to obey; that that law is not one that was made in Massachusetts; that any other than that one law is necessarily a bad law; and that, if they wish to secure to themselves the protection of that one law, their first step should be to get rid of all the blockheads, impostors, and tyrants, who claim that they ought to be invested with the irresponsible power of making and enforcing all the bad laws by which they think they can gain fame, power, or money.
- Lysander Spooner, “The Troubles of Law-Making in Massachusetts,” Liberty 2, no. 14 (October 6, 1883): 3-4.