Citizen
Founder's Club Member
In his Pulitzer Prize-winning book, Origins of the Fifth Amendment: the Right Against Self-Incrimination, Leonard Levy quotes a US Supreme Court justice. The justice, Abe Fortas, as a statist, contradicts himself in the middle of the quote, but raises a very interesting point at the end. I've read it before, but missed the full import of the last sentence. Here is Levy quoting Fortas,
As Abe Fortas observed, "The principle that a man is not obliged to furnish the state with ammunition to use against him is basic to this conception." The state, he acknowledged, must defend itself and "within the limits of accepted procedure," punish lawbreakers. "But, it has no right to compel the sovereign individual to surrender or impair his right of self-defense." The fundamental value reflected by the Fifth Amendment "is intangible, is it true; but so is liberty, and so is man's immortal soul. A man may be punished, even put to death by the state; but...he not be made to prostrate himself before its majesty. Mea culpa belongs to a man and his God. It is a plea that cannot be exacted from free men by human authority. To require it is to insist that the state is the superior of the individuals who compose it, instead of their instrument."
Re-read that last sentence. To require a free man to incriminate himself is to insist that the state is superior to the individuals who compose it. Notice Fortas' earlier use of the term sovereign individual (sovereign = no higher authority). Notice that word individual. The individual is sovereign, not the collection of individuals referred to as a community or society. He did not say sovereign citizens, as in a collection of people. He said individual. The sovereignty exists with the individual; sovereignty does not come into existence after individuals aggregate into a society. Sovereignty does not come into existence at the time a majority forms. The individual is sovereign.
Question. If the state has no human authority to compel self-incrimination because doing so would make the state superior to the sovereign individuals who compose it, how can the state have authority to compel anything of its sovereign individuals? Even if a million sovereign individuals banded together and formed a state, how can they have human authority to compel anything of even one more disagreeing sovereign individual?
I hold they may not compel--they lack the authority. For if they compel even one sovereign individual against his consent, then he is no longer a sovereign individual--and if he isn't a sovereign individual, neither are they.
Abe Fortas resigned from the Supreme Court under a cloud. But, I think that last sentence of his outdoes any corruption he might have been involved in. Maybe he didn't realize what he was revealing. Nonetheless, it is a wonderful contribution that illuminates the lie contained in the first sentence of the preamble: we the people. No, it wasn't the people. Lots and lots of people were opposed to the constitution during the ratification period--they did not consent.
As Abe Fortas observed, "The principle that a man is not obliged to furnish the state with ammunition to use against him is basic to this conception." The state, he acknowledged, must defend itself and "within the limits of accepted procedure," punish lawbreakers. "But, it has no right to compel the sovereign individual to surrender or impair his right of self-defense." The fundamental value reflected by the Fifth Amendment "is intangible, is it true; but so is liberty, and so is man's immortal soul. A man may be punished, even put to death by the state; but...he not be made to prostrate himself before its majesty. Mea culpa belongs to a man and his God. It is a plea that cannot be exacted from free men by human authority. To require it is to insist that the state is the superior of the individuals who compose it, instead of their instrument."
Re-read that last sentence. To require a free man to incriminate himself is to insist that the state is superior to the individuals who compose it. Notice Fortas' earlier use of the term sovereign individual (sovereign = no higher authority). Notice that word individual. The individual is sovereign, not the collection of individuals referred to as a community or society. He did not say sovereign citizens, as in a collection of people. He said individual. The sovereignty exists with the individual; sovereignty does not come into existence after individuals aggregate into a society. Sovereignty does not come into existence at the time a majority forms. The individual is sovereign.
Question. If the state has no human authority to compel self-incrimination because doing so would make the state superior to the sovereign individuals who compose it, how can the state have authority to compel anything of its sovereign individuals? Even if a million sovereign individuals banded together and formed a state, how can they have human authority to compel anything of even one more disagreeing sovereign individual?
I hold they may not compel--they lack the authority. For if they compel even one sovereign individual against his consent, then he is no longer a sovereign individual--and if he isn't a sovereign individual, neither are they.
Abe Fortas resigned from the Supreme Court under a cloud. But, I think that last sentence of his outdoes any corruption he might have been involved in. Maybe he didn't realize what he was revealing. Nonetheless, it is a wonderful contribution that illuminates the lie contained in the first sentence of the preamble: we the people. No, it wasn't the people. Lots and lots of people were opposed to the constitution during the ratification period--they did not consent.
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