Socrates and Us
Socrates never wrote a word. We know of him because he taught Plato, who put him in some of the dialogues. Xenophon’s Memorabilia mention him, and Aristophanes makes fun of him in The Clouds. He served with distinction as a common soldier, returning from the wars to become a nonstop philosopher. His purpose in the world, he thought, was to make himself and his fellow citizens better, and this he set out to do with wit, merriment, gaiety, and an intellect as great as any the world has seen.
The oracle at Delphi had been asked who was the wisest of men. Socrates, came the reply, whereupon Socrates decided to prove the oracle wrong. He roamed the streets and public places of Athens, questioning all he met—poets, politicians, laborers—hoping to find one wiser than himself. He was forced to admit at last that the oracle had been right. All men were ignorant, but Socrates knew that he was ignorant, which made him wiser than the rest.
In 404 B.C.E., the oligarchic party, led by Critias and Alcibiades, won power in Athens. Socrates was on their side. When Anytus’s democratic party resumed office a year or two later, Anytus set out to humble Socrates. Because an amnesty barred any prosecution for supporting the oligarchs, Anytus instigated the indictment of Socrates for “corruption of the young” and for the “practice of religious novelties.”
Trial was by a jury of 501 Athenian citizens, a majority controlling. The prosecution spoke first. Then Socrates answered. Plato reports his speech in the Apology, a word which here means not to beg pardon but to justify one’s life. This is what I am, says Socrates, and accordingly this is what I must do:
So long as I draw breath and have my faculties, I shall never stop practicing philosophy and exhorting you and elucidating the truth for everyone that I meet. I shall go on saying, in my usual way, “My very good friend, you are an Athenian and belong to a city which is the greatest and most famous in the world for its wisdom and strength. Are you not ashamed that you give your attention to acquiring as much money as possible . . . and give no attention or thought to truth and understanding and the perfection of your soul?”
The jury found Socrates guilty by a vote of 280 to 221.
The trial now proceeded to the question of penalty. First the prosecutor spoke, asking for the death sentence but probably assuming that once the jury heard Socrates’ plea, the punishment would be something short of capital. In the mind’s eye, every head turns to Socrates. He is elderly, though hardly frail. Short, muscular, with a face almost coarse in its strength, he begins:
There are a great many reasons, gentlemen, why I am not distressed by this result—I mean your condemnation of me—but the chief reason is that the result was not unexpected. . . . However, we must face the fact that the prosecution demands the death penalty. What alternative penalty shall I propose to you, gentlemen? Obviously it must be adequate. Well, what penalty do I deserve to pay in view of what I have done? I have never lived an ordinary life. I did not care for the things most people care about: making money, having a comfortable home, high rank. . . . Instead, I set myself to do for you individually what I hold to be the greatest possible service: I tried to persuade each one of you not to think more of practical advantages than of his mental and moral well-being. What do I deserve for behaving in this way? . . . Well, what is appropriate for a poor man who is a public benefactor and who requires leisure for giving you moral encouragement? . . . If I am to suggest an appropriate penalty which is strictly in accordance with justice, I suggest free maintenance by the state.
Perhaps the jury grew restless at this point, wondering whether Socrates was being satirical. He responded by mentioning the possibility of banishment:
Perhaps someone may say, “But surely, Socrates, after you have left us you can spend the rest of your life in quietly minding your own business.” This is the hardest thing of all to make you understand. . . . I tell you that to let no day pass without discussing all the subjects about which you hear me talking . . . is really the very best thing that a man can do, and that the unexamined life is not worth living.
The jury voted again: 360 to 141. The penalty was death. Socrates spoke a third time. He accepted the sentence. He was content:
No doubt it was bound to be so, and I think that the result is fair enough. Now it is time that we were going, you to live and I to die. But which of us has the happier prospect, only God knows.
What Socrates said to his friends in prison and the manner of his death may be read in the Crito and the Phaedo of Plato.
Now, in the thought of that man or woman who makes any pretense at all to humane culture, a central place ought to belong to Socrates. It was he who taught our world that traditional questions have rational answers. It was he who, by his conversation and example, showed that individual striving after the good is among the purposes of life. It was he who demonstrated the morality of each man’s aspiration and so laid the groundwork for liberal democracy.
But there is more. The story of the trial of Socrates teaches a double lesson well worth pondering. First, the power of Athens was manifest not in king, emperor, judge, council, parliament, president, prime minister, or first secretary. It lay in the people themselves (which to an Athenian meant all free males). They heard the case; whereupon they voted; and thus the government of Athens had made a decision about Socrates. Popular sovereignty can go no further. This is democracy at its purest.
Second, the Athenian jury was untrammeled in its power. What it chose to do it was entitled to do, because in the people themselves lay its legitimacy. No opposing political force hedged it. No higher law confined it. Here was popular sovereignty supreme, limitless, above each and all: its achievement, the condemnation and death of Socrates. This is democracy at its most dangerous.
We are reminded by the trial of Socrates that power corrupts no matter where power resides, in the people no less than in a tyrant; and so it is that, however they are organized and wherever sovereignty be lodged, all governments need restriction. Without restriction, despotism is inevitable, though it go by the name of the people. Given restriction, liberty has a chance.
The founders of our nation knew as much. Their method of restricting governmental power is called constitutionalism. Above all the other laws of the land is a supreme law, the Constitution, which vests sovereignty in the people, as the first three words of the Constitution’s preamble make clear, and which in Article I sets up a Congress of the people’s representatives. My purpose here is to speculate upon that principal institution of our democracy, the seat of American sovereignty, and I begin by thinking some more about Socrates’ trial.
The Athenian jury was popular sovereignty at its purest and most dangerous. The jury convicted Socrates and sentenced him to death because Socrates was a gadfly, stinging Athens with questions about truth and goodness and justice and how man ought to live. The people of Athens hated Socrates because they hated his questions. They had the power to kill him and they used it. But of course Socrates’ questions did not go away. They remained with the Athenians in the person of Plato and his pupils; they are with us still. In short, democracy no less than other forms of government is capable of stupidity, and the chief stupidity a democracy needs to guard against is that exemplified by the Athenians’ verdict against Socrates. To eliminate Socrates would eliminate his infuriating questions, the Athenians fancied. It would be so because each Athenian was the receptacle of sovereignty, the power of the state, and since the power of the state was supreme, whatever the Athenians wanted could be had merely by willing it to be so.
The premise of this logic is that the power of the state can accomplish anything. The premise is false. No government has been able to change the moment of sunrise by so much as a second. Sovereign power is political power, subject to the deficiencies and weaknesses of all political enterprise. This, democracy finds it peculiarly difficult to accept, perhaps because to abjure the false premise of omnipotent sovereignty is vividly to acknowledge the personal and specific frailties, imperfections, and sins of each and every one of the citizens from whom sovereignty derives. That is why fatuousness—the attempt to use political power to accomplish ends political power cannot accomplish—is especially a characteristic of democratic governments, as it was when Athens sought to rid itself of Socrates’ questions by ridding itself of Socrates.
The prime symptom of democratic fatuousness is the fevered enactment of laws. Lacking all negative capability, the citizens try to use their sovereignty to sweeten every unpleasantness. They do it with statutes. Their response to adversity, to anything that goes wrong, is a law to fix it. In a democracy no longer healthy, government doesn’t just throw money at problems. It throws laws.
Thus Tacitus, speaking of Rome, said: “The more corrupt the Republic, the more the laws.” No less a thinker than Jean Jacques Rousseau saw the degeneration of Athenian democracy in the proliferation of its laws. In the literature of our times, the truth known to Tacitus and to Rousseau seems to have been misplaced. It is most nearly expressed in C.S. Lewis’s English Literature in the Sixteenth Century:
The modern theory of sovereignty is often called Austinian, but might just as well be called Johnsonian, for it is very clearly stated in [Samuel Johnson’s] Taxation No Tyranny: “All government is ultimately and essentially absolute.” On this view, total freedom to make what law it pleases, superiority to law because it is the source of law, is the characteristic of the state; of democratic states no less than of monarchical. That doctrine has proved so popular that it now seems to many a mere tautology. . . . We take it for granted that the highest power in the state, whether that power is a despot or a democratically elected assembly, will be wholly free to legislate and incessantly engaged in legislation.
How fares American democracy? Excluding private bills, Congress enacted 3,359 laws in the decade just ended. Adding in the product of state legislatures makes a scandalous total monstrous. In the 1970’s, the legislature of the state of New York, for example, passed 9,780 laws. If the other forty-nine states are taken into account, the number of laws enacted in the 1970’s is some 250,000—a quarter of a million separate statutes in ten years.
When Charles Evans Hughes taught at the Cornell Law School in the 1890’s, its library contained about 10,000 volumes. Today it exceeds 300,000. In nine decades, a thirty-fold increase, a collection adding to itself on the average as many books every three years as it had altogether when Professor Hughes was among its users. That is, our generation has thirty times more law than our great-grandparents’ generation, most of that increase attributable to legislation. Inflation indeed! Will anyone venture to contend that with thirty times more law we are thirty times happier or wiser or better governed or more contented than our great-grandparents were?
What we should do to purge ourselves is obvious but impractical. We ought to declare a national emergency and, as Roosevelt did with the banks in 1933, impose a moratorium on legislation. Padlock the capitol in Washington and close every state legislature for a year. That will give us the time we need to take stock, assess our purposes, canvass our means, and come to a true rather than a chimerical conception of the possibilities of law.
A more realistic suggestion follows. Legal inflation has corrupted the very process of legislation in ways not so much having to do with the substance of the laws as with the method and style of their enactment. The remedy would be the development of a kind of law of laws, a set of rules enunciating the minimum formal requirements which a purported statute must satisfy before it can be accepted as a statute de jure. It would no longer suffice, in the instance of a federal law, for example, merely that it be passed by Congress and duly approved by the President. At least four other rules would come into play, rules which could be brought into existence through litigation under one or another provision of the United States Constitution. Lawyers, get busy.
One. By contrast with Socrates’ Athens, ours is a representative democracy. The country is too large and the population too immense for direct participation by the citizenry in the affairs of government. Hence to make the laws we elect representatives, through whom we govern ourselves. With increasing frequency in recent years, Congressmen have been heard to admit that much of the time they do not know what it is they are voting on because there is not enough time to read every bill. They read only those falling within their special fields of interest. Their vote on many bills, then, is at the direction of someone else, be he party leader, lobbyist, or trusted colleague; and that is not representative democracy. When a Congressman votes for a bill, he impliedly warrants that he, as a member of Congress, invokes such and such a power delegated to him by the people in Article I, section 8, of the Constitution. But how can he invoke a power when he is ignorant of the content of the bill? He does not even know which of section 8’s eighteen subsections is the relevant one. It is not too much to hope that a court might hold the blind assertion of legislative power no assertion of legislative power, adopting the following as a first requirement of formal sufficiency: No statute is validly enacted unless the Congressmen voting for it have read it.
Two. Even when a Congressman reads a bill, he may not know what he is voting on because what he is voting on is not knowable. Many statutes have gone over the edge. They are not merely difficult, they are unintelligible. Here is the sort of opinion some lawyer will one day win from a United States District Judge, thereby establishing a second rule of formal sufficiency, as stated in the opinion’s penultimate paragraph:
This is a class action in which the plaintiff-taxpayer, on behalf of himself and all others similarly situated, sues for a judgment declaring the Internal Revenue Code unconstitutional. His argument is (1) he does not understand it, (2) nobody understands it, and (3) it is therefore invalid. The theory is novel, to be sure, but not for that reason necessarily wrong.
Let us examine the code.
Item. I doubt that the ordinary citizen of average education and normal mental endowment can grasp the meaning of a sentence more than fifty words long. The code contains sentences of 379 words [sec. 170(b) (1) (A)], of 385 words [sec. 6651 (a)], and of 506 words [sec. 7701 (a) (19)].
Item. Apart from mere length, I doubt that the ordinary citizen can grasp the meaning of a sentence which does not run more or less in a straight line from beginning to middle to end. What then is he to make of the last sentence of section 509 (a)?
For purposes of paragraph (3), an organization described in paragraph (2) shall be deemed to include an organization described in section 501 (c) (4), (5), or (6) which would be described in paragraph (2) if it were an organization described in section 501(c)(3).
I do not wish to expand this opinion unduly, and so, for additional illustrations, I refer interested persons to any page of the Internal Revenue Code selected at random.
The due-process clause means many things. One of them, assuredly, is that the enactments of Congress, whatever their subject-matter, be comprehensible to an ordinary citizen upon the application of reasonable diligence. I find that the Internal Revenue Code does not meet that standard. It is declared unconstitutional.
This may be the first case holding a statute void for excessive complexity. I trust it will not be the last.
Three. It is difficult, we have said, for democracy to face up to the sad fact that we do not know how to ameliorate many of life’s vexations and horrors, the consequence being a tendency for democracy to indulge in fatuous law-making. Read the newspaper any morning and you will have examples. Here is a trouble. It is immediately called a “problem,” the term preferred by politicians and social theorists, connoting that there is a solution somewhere. The people demand that their representatives find the solution. To tell the people that the problem is insoluble, or that no one yet knows the solution, or that it’s not so much a problem as simply the human condition, would be to tell the people the truth but not to win elections. The upshot is that the people’s representatives purport to come up with a solution of the only kind available to them—a law, a law to solve the problem, a law invariably along the lines of “The problem shall be and hereby is solved.” The law is nothing more than a totem-object for the Congressman to exhibit to his constituents by way of proving to them that he has done something about the problem. When the problem remains unsolved, as of course it does, the results are familiar: a feeling among the people that their representatives have failed them, a mounting distrust in the rule of law, and a diminution of faith in democracy. The dubious reader should consider section 102 of the Full Employment and Balanced Growth Act of 1978:
The Congress hereby declares that it is the continuing policy and responsibility of the federal government to use all practicable means, consistent with its needs and obligations and other essential national policies, and with the assistance and cooperation of both small and larger businesses, agriculture, labor, and state and local governments, to coordinate and utilize all its plans, functions, and resources for the purpose of creating and maintaining, in a manner calculated to foster and promote free competitive enterprise and the general welfare, conditions which promote useful employment opportunities, including self-employment, for those able, willing, and seeking to work, and promote full employment and production, increased real income, balanced growth, a balanced federal budget, adequate productivity growth, proper attention to national priorities, achievement of an improved trade balance through increased exports and improvement in the international competitiveness of agriculture, business, and industry, and reasonable price stability. . . .
The Congress further declares that it is the purpose of the Full Employment and Balanced Growth Act of 1978 to improve the coordination and integration of the policies and programs of the federal government toward achievement of the objectives of such Act through better management, increased efficiency, and attention to long-range as well as short-range problems and to balancing the federal budget.
The rest of the Act says essentially that to achieve these purposes civil servants shall shuffle papers. Obviously the statute has achieved none of its purposes and cannot, for we are not certain how to achieve them. The Full Employment Act should be declared invalid on the ground that it violates a third rule of formal sufficiency: A statute not reasonably particular as to ends, as to means, and as to the relation between them, is no statute.
Four. Many statutes are onerous. It is a considerable burden to comply with them, which, conceivably, is why Congress has fallen into the habit of exempting itself from the obligation to obey them. The laws the rest of us spend an inordinate amount of time and money trying not to violate do not apply to Congress. What businessman or lawyer has not wrestled with the Fair Labor Standards Act, the Equal Pay Act, the Occupational Health and Safety Act, the Civil Rights Act of 1964, the Equal Employment Opportunity Act? Congress has exempted itself from all of them, and there are no doubt others. Is it necessary to belabor the implications for law and liberty? Rex non debit esse sub homine sed sub Deo et sub lege, wrote Bracton. The King ought to be under no man but under God and the law. What bloodshed, turmoil, and wisdom are packed into that sentence. And here is Congress, America’s rex, the seat of our sovereignty as a representative democracy, telling us the law we are under but not they. No rationalization should be held to justify such congressional self-exemption from the statutes that bind the rest of us. The equal-protection clause must mean at least this, a fourth rule of formal sufficiency: Any statute which does not apply to Congress as well as to the people at large is invalid.
American democracy has fallen upon hard times. A chief symptom of its travail is the inflation of the laws. But to be ill is not to be dead. There is hope, so long as we do the things which must be done. We must cease to pretend that political power is infallible and omnipotent. We must think clearly about law and liberty and the limited efficacy of legislation. And, in the name of Socrates, we must do it soon.