Starbucks, Montesquieu and Constitutional Reform #5

The idea of supremacy of the Law (and rather its Spirit, if we remind ourselves the title of the Montesquieu’s grand-work), the Law that lays in the foundation of the world, and respected even by the Divine intelligence, over the rationalized human Contract is the lesson of Montesquieu’s The Temple of Gnide. However, not just that. We have the opening of the text referencing the myth of Cupid and Psyche that is well rooted in PIE culture. We can find a similar theme in Celtic tales about Melusine, German Princess and the Frog, Slavic Princess the Frog and Hindu Pururavas and Urvashi story. A common point of these tales is the love and marriage of Prince (or Princess, or Divine being) and Shapeshifter (real or imagined) and a taboo for one of them on observing nakedness (in human or animal form) of another, breaking this taboo, parting of the Shapeshifter to another world, he or she came from, quest in search for disappeared loved one, and performing ritual tasks to become accepted in the otherworld.

In the Hindu version, Urvashi is an Apsara – a version of the Greek Nymph, and like Nymphs, their male counterparts – Gandharva – are quite strange. They are half-humans, half-animals – some kind of up-side-down Centaurs, but with the human body and the horse head. No wonder, etymologically, their names are in the close relationship. Like Centaurs they are also wise teachers, wild and untempered. Gandharva know the secret of fertility. Like in the story of abduction by Romulus of Sabine women and the way of restoration their fertility, Gandharva have the first night with every bride to guaranty her fertility. They are called Varuna’s people and also are patrons of artisans and musicians. As well as Nymphs, Apsara are quite charming, and being fallen in love
with Prince Pururavas, Urvashi has no problem in casting her charms over the Prince. However, being disappointed by the Urvashi’s choice and her departure with her husband into the world of men, Gandharva resort to a trick of stealing the Prince’s cattle (yes, it was the major royal treasure those days), while others were waiting for Pururavas to jump from the bed to rush down in pursuit without even getting dressed. And exact at that time they lighted up a lamp, allowing Urvashi to see her husband naked and thus breaking the royal sovereign taboo. Urvashi had to depart into Gadharvas’ other-world, and Pururavas starts his quest in search of his love. Finally he managed to convince Gandharva that he wants to become one of them and they open him a secret of a potion made of the herb containing the word ‘asvin’ (horse) in its name. The theme of the horse is a common attribute of the third caste – Vasya, or commoners caste.

What these tales are about and what’s up with the nakedness taboo? This taboo is a part of the system of taboos, including also prohibition of riding a horse, wearing ropes and rings specific to Brahmana caste, the cast of the priests of Mitra, as well as Roman Flamen, the priests of Dius Fidius. Those are all symbols of the Mitra’s counterpart – Varuna and his people Gandharva, or Lupercy, people of Romulus.

If we take a look at US Constitution from the point of view of its origins – from Montesquieu’s teachings down to PIE legends – we’ll be able to see clearly, from the solid ground, the strong sides of US political and governmental system, proven by millennia or, sometimes, weak or even broken areas, which deviate from the original design, and the ways they could be fixed.

As we can see, a happy marriage of tho sides of Justice (royal and commoner wings) is possible only if His Honor Justice by Book accepts the supremacy of the Wild Justice by Heart. In today’s jurisprudence we see that principle is implemented in jury courts. However, the role and power of the jurors is under assault – judges usually try to condition jurors into the evidence stamping machine, hiding from them information about the jury nullification procedure, which allows to scrap the law if the application of it is against the interests of the community. A most notable victory of Mitra’s people over Varuna’s ones was the Supreme Court’s 7 to 2 decision in 1895 in United States vs Sparf case, upholding the right and power of judges to hide the knowledge about the jury nullification procedure from jurors. Now it’s a common practice for judges to penalize anyone who would attempt to bring up a nullification argument before the jurors, to declare a mistrial if jurors gets this information anyway, and struck a potential juror from the panel if the judge have a suspicion that a juror possesses such a knowledge.
It’s not an urban legend that if you are tired of frequent calls for the juror’s duty, just let the judge know you are informed about the jury nullification procedure – you’ll not only be pardoned from the duty that time, but will be never ever again called for such a duty. Especially striking is the legal persecution of the Julian P. Heicklen, a 78 years old retired Pennsylvania State University chemistry professor, who tried to educate general public about its jury nullification rights.

Still, while the right for a trial by jury in lower courts still exists in US Constitution (however very much de facto crippled ), a question comes to one’s mind: “Why, if there exist the Supreme Court, there are no Supreme Jurors, even in such a castrated form like in lower courts?”
This is not a simple question to answer, and we better to go more than 200 years ago, to see in what historical circumstances the Constitutional debate was unfolding. The discussion was far from the unanimous consensus on the constitutional principles, or a friendly (or even unfriendly) discussion, but rather a bitter disagreement on the basic principles.

The Framers of Constitution had not only to implement a governing system never seen before, and make it flexible enough to allow additions and alterations to be applied (of course you can’t get everything done right from the first shot in a such tremendous endeavor), but also to guard their vision from the (using one of their favorite words) encroachments of the opposing, and a very well founded, views, by installing, so-called in information technology, ‘back doors’ and ‘supervisor modes’, which would break the principles of balanced power, but, in case of the necessity, will fend off, or steer the revising effort in the ‘right’ direction.

To be continued…


Montesquieu: The Spirit of the Laws (Cambridge Texts in the History of Political Thought)
Mitra-Varuna: An Essay on Two Indo-European Representations of Sovereignty
The Personal and the Political: Three Fables by Montesquieu

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