Precedent: Letting Yesterday’s Crimes Justify Tomorrow’s Tyranny
“One of the vilest systems that can be set up.”
That’s how Thomas Paine described government by precedent – when government uses power not because it’s authorized, but because someone else got away with it first.
No constitution. No limits. Just repetition and raw power.
One act becomes two. Two become twenty. In no time, power is no longer delegated – it’s simply assumed.
This is how free people become subjects. This is how the so-called “land of the free” became home to the largest government in history.
This might be the most dangerous political habit in American history: letting yesterday’s crimes justify tomorrow’s tyranny.
THE SLOW DESCENT INTO TYRANNY
Let’s start by understanding how tyranny actually happens in practice. It usually doesn’t arrive all at once – it builds slowly over time. James Otis Jr. explained it perfectly in 1767:
“A free government never degenerated into tyranny all at once, it is the work of years.”
This slow descent that Otis warned about doesn’t usually begin with violence – it begins with exceptions, justifications, and emergencies. Then it builds and builds until power becomes almost untouchable.
St. George Tucker saw this clearly in his 1803 View of the Constitution of the United States. He explained that the easiest way for an aristocracy to take hold was through the “secret and gradual abuse of the confidence of the people.”
And here’s where it gets really dangerous – each abuse becomes justification for the next one:
“Slight, and sometimes even imperceptible, innovations, occasional usurpations, founded upon the pretended emergency of the occasion: or upon former unconstitutional precedents”
THE TRAP OF PRECEDENT
Of course, it never just ends there. Everything becomes a cycle – precedent upon precedent, stacked one after another. Tucker continued.
“the most unauthorized acts of government may be drawn into precedents to justify other unwarrantable usurpations.”
This pattern of violations building over time is dangerous enough. But Thomas Paine warned that even recognizing precedent as legitimate in the first place can be a trap.
What should be seen as a warning sign – a blazing red flag – instead gets celebrated as a new foundation for more power.
“In numerous instances, the precedent ought to operate as a warning, and not as an example, and requires to be shunned instead of imitated; but instead of this, precedents are taken in the lump, and put at once for constitution and for law.”
John Dickinson saw this trap playing out in real time during the early years of the American Revolution. In his 1765 broadside urging non-compliance with the Stamp Act, he issued a stark warning about what happens when people willingly submit to unconstitutional power.
“IF you comply with the Act by using Stamped Papers, you fix, you rivet perpetual Chains upon your unhappy Country.”
What made this warning even more urgent? Compliance wasn’t forced – it was voluntary. And voluntary submission to unconstitutional power creates the most dangerous precedents of all.
“You unnecessarily, voluntarily establish the detestable Precedent, which those who have forged your Fetters ardently wish for, to varnish the future Exercise of this new claimed Authority.”
LEARNING FROM HISTORY
The founders and the old revolutionaries didn’t create these views, these principles, out of thin air. They were in the pages of all the leading figures that they read and learned from in the centuries and decades before them.
Take Algernon Sidney, executed in 1683 for writing “Discourses Concerning Government” – a work the founders frequently cited and drew from. His warning about how politicians use precedent to expand power directly influenced revolutionary thinking.
“When the law may be easily or safely overthrown, it will be attempted. Whatever virtue may be in the first magistrates, many years will not pass before they come to be corrupted; and their successors deflecting from their integrity, will seize upon the ill-guarded prey.”
Sidney then described the deadly pattern that follows when virtue gives way to corruption.
“They will then not only govern by will, but by that irregular will, which turns the law, that was made for the publick good, to the private advantage of one or few men.”
THE DEADLIEST ILLUSION: “BUT THIS TIME IT’S DIFFERENT”
Even those who recognize the dangers of precedent often suspend their principles when the cause aligns with their values or the leader belongs to their faction.
This fundamental misunderstanding – that dangerous precedents become acceptable when deployed for the “right” purposes – may be the gravest threat to liberty.
Thomas Gordon explained the pattern.
“All pernicious Precedents are derived from laudable Beginnings; but when the Administration devolves upon unworthy and unskilful Men, those Precedents, at first just, are changed in the Application, from Objects that were proper and guilty, to such as are guiltless and improper.”
Gordon illustrated this with a historical example that his readers would have recognized instantly – the Thirty Tyrants of Athens.
“The Lacedaemonians, when they had subdued the Athenians, subjected that State to Thirty Governors. These began their Power, by executing, without Conviction, whomsoever they found notoriously wicked and obnoxious to all Men.”
The people celebrated these initial executions – finally, justice for the corrupt. But Gordon showed how quickly celebration became terror.
“Thenceforward, when, by degrees, they had strengthened their lawless Authority, they doomed to Death both Good and Bad, without Distinction; and thus held under Dread the whole Community. Such was the terrible Penalty, which these People, oppressed by Tyranny, paid for their ridiculous Joy.”
Even Machiavelli – never known for squeamishness about power – recognized this danger in the ancient republics.
“Now in a well-ordered republic it should never be necessary to resort to extra-constitutional measures; for although they may for the time be beneficial, yet the precedent is pernicious…”
The reason, as Machiavelli explained, is inevitable abuse.
“…for if the practice is once established of disregarding the laws for good objects, they will in a little while be disregarded under that pretext for evil purposes.”
John Locke took this warning to its logical conclusion. He argued that popular rulers who use unconstitutional power pose the greatest threat to liberty.
“That the reigns of good princes have been always most dangerous to the liberties of their people: for when their successors, managing the government with different thoughts, would draw the actions of those good rulers into precedent…”
Why most dangerous? Because there’s little to no resistance when the ruler is popular and the short-term results are well-liked.
“…and make them the standard of their prerogative, as if what had been done only for the good of the people was a right in them to do, for the harm of the people”
WASHINGTON’S WARNING: PRECEDENT AS A WEAPON
All of these warnings culminated in George Washington’s Farewell Address of September 1796. He understood that precedent wasn’t merely a political tool; it was, in his words, “the customary weapon” used to destroy freedom.
Washington began by acknowledging that changes to government power might sometimes be necessary – but he insisted on the proper method.
“If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates.”
But then came his stark warning about taking shortcuts through usurpation – an exercise of power not delegated.
“But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”
Washington explained that the damage from unconstitutional precedent always outweighs any short-term benefit.
“The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield.”
This wasn’t abstract political theory to Washington.
He had led a revolution against arbitrary power – and his farewell warning crystallized centuries of political wisdom. Once you accept that power can be seized outside constitutional bounds – even for good purposes – you’ve handed future politicians the weapon they need to destroy freedom itself.
THE ANCIENT WARNING THAT SHAPED REVOLUTIONARY THINKING
Even the ancients understood this danger. The Roman historian Tacitus captured it in one powerful line: today’s emergency power becomes tomorrow’s standard operating procedure. It’s a vicious cycle that feeds on itself.
“What we are this day justifying by precedents, will be itself a precedent.”
That single line from Tacitus? John Dickinson recognized it as political dynamite.
First, he exposed how power-hungry politicians rarely declare themselves dictators. Instead, they dress up their schemes to look legitimate.
“All artful rulers, who strive to extend their power beyond its just limits, endeavor to give to their attempts as much semblance of legality as possible.”
Then he showed how precedent builds on precedent.
“Those who succeed them may venture to go a little further; for each new encroachment will be strengthened by a former.”
And finally, he brought it full circle – directly citing Tacitus.
“’That which is now supported by examples, growing old, will become an example itself,’ and thus support fresh usurpations.”
THE DANGEROUS TRICK
The “Penman of the Revolution” understood that the smaller the violation, the deadlier it becomes – because nobody bothers to fight it.
Dickinson saw right through this trap. Writing about the Townshend Acts, he exposed what most people missed – and why it mattered.
“Some persons may think this act of no consequence, because the duties are so small.”
Then he delivered the punch.
“A fatal error.”
Why fatal? Because the size of the violation wasn’t the point – the precedent was.
“That is the very circumstance most alarming to me. For I am convinced, that the authors of this law would never have obtained an act to raise so trifling a sum as it must do, had they not intended by it to establish a precedent for future use.”
He closed with this perfect metaphor.
“To console ourselves with the smallness of the duties, is to walk deliberately into the snare that is set for us, praising the neatness of the workmanship.”
WHEN EMERGENCY POWER BECOMES FOREVER
Dickinson knew the most dangerous word in politics: “emergency.”
To prove his point, he reached back to Spain’s transformation into a tyranny – all triggered by a single precedent.
“Spain was once free. Their cortes resembled our parliaments. No money could be raised on the subject, without their consent.”
Picture that – a functioning representative government where the people controlled the purse strings. Then came the trap.
“One of their Kings having received a grant from them, to maintain a war against the Moors, desired, that if the sum which they had given, should not be sufficient, he might be allowed, for that emergency only, to raise more money without assembling the Cortes.”
Notice those key words: “for that emergency only.” Sounds familiar, doesn’t it?
Dickinson described how some in the assembly saw through this scheme: “The request was violently opposed by the best and wisest men in the assembly.”
But wisdom doesn’t always win.
“It was, however, complied with by the votes of a majority; and this single concession was a PRECEDENT for other concessions of the like kind”
The result was catastrophic.
“until at last the crown obtained a general power of raising money, in cases of necessity. From that period the Cortes ceased to be useful – the people ceased to be free.”
From emergency exception to permanent power. From free people to subjects.
All through a single precedent.
THE WHIMPER, NOT THE BANG
Dickinson understood that tyranny rarely arrives with fanfare. It creeps in through repeated submission.
“When an act injurious to freedom has been once done, and the people bear it, the repetition of it is most likely to meet with submission.”
This pattern explains why resistance weakens over time – people adapt to each small loss until they’ve surrendered everything. Dickinson warned that freedom slips away before most people even notice.
“Nations, in general, are not apt to think until they feel – and therefore nations in general have lost their liberty.”
By the time the effects become obvious, it’s too late. The precedents have hardened into chains.
FULL CIRCLE: THE SYSTEM OF TYRANNY
This brings us back to Thomas Paine. He recognized that the real danger isn’t just isolated abuses of power – it’s when those abuses become the foundation for an entire system.
“Government by precedent, without any regard to the principle of the precedent, is one of the vilest systems that can be set up.”
Paine explained the tragedy clearly – people get it backwards. They allow warnings to be turned into blueprints.
“In numerous instances, the precedent ought to operate as a warning, and not as an example, and requires to be shunned instead of imitated; but instead of this, precedents are taken in the lump, and put at once for constitution and for law.”
To prevent such precedent from gaining a foothold, Dickinson urged constant vigilance against even the smallest steps.
“A FREE people therefore can never be too quick in observing, nor too firm in opposing the beginnings of alteration either in form or reality, respecting institutions formed for their security.”
The worst part? Dickinson saw exactly where this leads – to a hollow shell where liberty exists in name only. The outward forms remain while the substance vanishes.
“The first kind of alteration leads to the last: Yet, on the other hand, nothing is more certain, than that the forms of liberty may be retained, when the substance is gone.”
He closed with a biblical truth that captures the entire struggle.
“In government, as well as in religion, ‘The letter killeth, but the spirit giveth life.’”
The mechanics of freedom mean nothing without eternal vigilance – the words on parchment offer no protection when precedent becomes more powerful than principle.
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