Why Our Good Health Should Be the Supreme Law of the Land

Among the crucial issues raised by the prosecution of Bradley Manning and the persecution of Edward Snowden is the question concerning what law should serve. Is law's basic purpose order or justice - the maintenance of the way things are, or the instantiation of what ought to be? What is primary, the letter or the spirit of the law?

Over the course of history, the spirit of the law has generally been regarded as law's more important dimension. Indeed, without serving a higher spirit or ideal - such as justice, fairness, or the common good - the mere letter of the law tends to be conceived of as nothing more than brute force. It is just this notion that provides the rationale for acts of civil disobedience; as Martin Luther King put it, citing Saint Augustine, an unjust law is no law at all. Consequently it has no authority, moral or otherwise. And while it may sound counter-intuitive, it is no exaggeration to remark that what is known as the Right of Resistance has to some degree been a feature of law since biblical times - for even the bible allows for the breaking of the sabbath, and other laws, if a person's health, or welfare, is in jeopardy. Axiomatic of justice, this notion of the spirit of the law prevailing over its mere letter underpins the US Constitution itself; for in its preamble the Constitution clearly states that its purpose is, among other things, to "establish justice," and "to promote the General Welfare." That is, implicit in the Constitution is the idea that law, the order of things, must yield to the demands of justice - and that the law that does not prioritize the general welfare, that is not animated by the spirit of the law, is no true law at all.

What is of especial relevance in interpreting the meaning of the General Welfare is the ancient legal maxim salus populi suprema lex esto. Ingrained in US Constitutional law, the maxim is attributed to the Roman philosopher and statesman Cicero (106-43 BC). Once a feature of Roman law, the maxim spread throughout the Roman Empire. And by the time the empire dissolved, centuries later, the maxim had become embedded in legal systems across the former Roman world. Indeed, within early English common law the maxim carried the force of law itself. Usually translated as the health of the people is the supreme law, in his Table Talk, the 17th century English jurist John Selden (referred to by John Milton as "the chief of learned men reputed in this land") pointed out that since the term esto is in the imperative mode, its proper translation ought to be 'the health of the people should be the supreme law.' In other words, the maxim is not a statement about how things are, but a command as to how things ought to be. And that is how the maxim has functioned. It has been used to nullify laws that conflict with this higher principle. When faced with the question of how things should be, of what the supreme law should be, the maxim holds that the deciding factor is the health (or welfare) of the people. Cited in dozens of US state, federal, and Supreme Court decisions, this maxim continues to exert persuasive power in US law. However, because the maxim suffers from the same ambiguity that law itself suffers from, over the centuries the maxim has been construed to mean either order or justice – the welfare of the people, or the welfare of the rulers.

For example, while Machiavelli (in his Discourses on Livy) interpreted the maxim in a manner that emphasized order, during the 17th century - while common lands were being converted into salable things, enclosed, and sold off, rendering the people that had historically lived on those lands into homeless refugees - the so-called Levellers cited the maxim to justify their efforts to fight off these enclosures. The health of the people should be the supreme law, they argued. And because the health of the people requires land on which to live, its alienation is contrary to the supreme law and must therefore be halted. Reacting to the Levellers, among other things, Thomas Hobbes invoked the maxim in his Leviathan, emphasizing the order of Absolutism. A generation after Hobbes, John Locke famously employed the maxim as the epitaph to his Second Treatise on Government. Referring to the maxim, Locke wrote that it "is certainly so just and fundamental a rule, that he, who sincerely follows it, cannot dangerously err." By way of Locke, the maxim influenced the Founders of the US who, like Locke, emphasized the emancipatory dimension of the maxim in their efforts to free themselves from the domination of the British Crown.