The Law And The Lawless

"To live outside the law, you must be honest." -- Bob Dylan

In a certain sense, a government with a true preponderance of coercive force at its command is de facto above the law, no matter what the Constitution, the laws themselves, or anything else might say. After all, who could bring such a government to heel? Yet in these United States we maintain stoutly that the law applies to everyone, high and low, public and private. It's one of the convictions that sets us apart from the Societies of Status (Isabel Paterson) that preceded the founding of our Republic.

It's become impossible to believe that old mantra. The demonstrations of its practical ineffectuality have multiplied too greatly.

Stephen Green makes note of an especially egregious case:

This ought to give you chills:

Gibson’s very success made it a fat target for federal prosecutors, whom Juszkiewicz alleges were operating at the behest of lumber unions and environmental pressure groups seeking to kill the market for lumber imports. “This case was not about conservation,” he says. “It was basically protectionism.”...

We’ve reached the stage — predicted decades ago by Ayn Rand — of how too many laws breeds its own brand of lawlessness.

I wouldn't presume to argue against the "too many laws" statement -- that's been the case for at least a century -- but another consideration is far more important: Who is ready, willing, and able to bring the State to book? If the only law on the books were the one against certain kinds of imports, given the current preponderance of forces, the situation would be exactly the same.

And for those annoying situations when "the law" doesn't...quite...cover what the State would like to do to a chosen victim, consider this little bit of legal chicanery:

WASHINGTON — The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include “truly substantive changes in factual statements and legal reasoning,” said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.

The court can act quickly, as when Justice Antonin Scalia last month corrected an embarrassing error in a dissent in a case involving the Environmental Protection Agency.

But most changes are neither prompt nor publicized, and the court’s secretive editing process has led judges and law professors astray, causing them to rely on passages that were later scrubbed from the official record. The widening public access to online versions of the court’s decisions, some of which do not reflect the final wording, has made the longstanding problem more pronounced.

Scared yet? If not, check your pulse; you may have died and not noticed.

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In Shadow Of A Sword, I had co-protagonist Stephen Graham Sumner say this:

    “Miss Weatherly,” he said with a note of regret, “I’m a lawyer. I was raised by a lawyer. He taught me to think of the law as our most precious possession. One of the questions he repeatedly insisted that I ponder was ‘What is the law?’ Not ‘What would I like the law to be,’ but ‘What is it really, and how do I know that’s what it is?’
    “My profession, sadly, has made a practice of twisting the law to its own ends. There aren’t many lawyers left who really care what the law is, as long as they can get the results they want, when they want them. So they play the angles, and collaborate with judges who think they’re black-robed gods, and generally do whatever they can get away with to get what they want, without a moment’s regard for what it does to the knowability of the law.
    “I care. I want to know what the law is, what it permits, requires, and forbids. I want my clients to know. And the only way to reach that result is to insist that the words of the law have exact meanings, not arbitrary, impermanent interpretations that can be changed by some supercilious cretin who thinks he can prescribe and proscribe for the rest of us.
    “The Constitution is the supreme law, the foundation for all other law. If it doesn’t mean exactly what its text says—the public meanings of the words as ordinary people understand them—then no one can possibly know what it means. But if no one can know what the Constitution means, then no one can know whether any other law conforms to it. At that point, all that matters is the will of whoever’s in power. And that’s an exact definition of tyranny.”

I had the contemporary use of "interpretation," "penumbras," "implied powers," and the like in mind as I wrote that passage. Yet as bad as those things were and are, what the cited articles above portray is even worse. In the former case, we have the "enforcement" of a non-law against a non-violator at the behest of a political supporter. In the latter, we have the actual revision of the law -- as the Supreme Court views it, at least -- retroactively and without notice to the public. And who will do the least little thing about it?

No one. No one can except the violators themselves, and they're hardly going to prosecute themselves for their malfeasances.

The State has placed its masters and their agents above the law. Though that's been the case de facto for some time now, it is no longer being concealed. The actors are without shame and exhibit no self-restraint, as the recent slew of reports about Operation Choke Point should make plain.

Which brings us to the second-order effects of the State's self-elevation.

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The combination of the Constitution plus the Common Law, which we inherited from England, had a consequence few persons have openly articulated. Under their combined principles and terms, and from the then-customary definition of a government, the United States was an anarchist nation. The argument is simple: A State must have the recognized authority to decree punishment. But under the Constitution's requirement for a jury trial for all penal offenses, plus the Common Law's traditions concerning the jury's freedom to nullify any law it finds noxious, only a jury of private citizens can do so. Therefore, U.S. governments lack an essential qualification for being States -- and therefore, we are an anarchy by the strict meaning of the word.

Yet we had laws! From the very first, before Congress or any of the state legislatures spoke their first words, we had the Common Law of England, subsumed by our Constitution by implication in Amendments IV and V, and explicitly incorporated by Amendment VII.

Most people would find that a stunning contradiction. For a man who understands freedom, it's entirely consistent. Moreover, it reinforces the concept of the Rule of Law -- i.e., that no man is outside or above the law and its requirements -- in that a grand jury can indict anyone, private citizen or public official, and compel him to answer for his deeds.

But today's public officials are above the law. For all practical purposes, no grand jury can touch them.

At this point, Frederic Bastiat's ringing evaluation becomes critical:

It is impossible to introduce into society a greater change and a greater evil than this: the conversion of the law into an instrument of plunder.

What are the consequences of such a perversion? It would require volumes to describe them all. Thus we must content ourselves with pointing out the most striking.

In the first place, it erases from everyone's conscience the distinction between justice and injustice.

No society can exist unless the laws are respected to a certain degree. The safest way to make laws respected is to make them respectable. When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law. These two evils are of equal consequence, and it would be difficult for a person to choose between them.

A sufficient number of demonstrations by the masters and agents of the State that they are above the law will bring about the loss of all respect for the law by the rest of the nation. As the function of the law is to curb certain actions by penalizing them, what would then remain are:

• Personal ethical constraints;
• The fear of adverse consequences.

Would these be sufficient? Indeed, are they sufficient today?

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Law has lost its soul and become jungle. -- Bertrand de Jouvenel

At its base, law -- legislated law, not natural law, religious law, or any other sort -- is a statement of intent. If this happens, these shall be the consequences. While law is sufficiently widely and deeply respected, it also functions as a way to predict what will follow from certain well-defined actions taken in relevant contexts. But when that respect has attenuated below the required threshold, such predictions become worthless. Non-enforcement against privileged persons and selective enforcement according to political priorities render the words of the law meaningless. The Rule of Law becomes meaningless as well.

We could tolerate this only if our aggregate social ethics were far stronger than they are today. As matters stand, we're a bare step from seeing these United States pitched into outright bloody chaos.

When opinion-mongers speak of "the law of the jungle," they typically have in mind a context in which there is no law as we commonly understand the term: i.e., no legislated law and no State charged with its enforcement. Yet the jungle into which we're headed -- De Jouvenel's jungle -- is so heavily loaded with laws that no one can know them all. My prediction is that it will be quite as fierce a place, and quite as inhospitable toward the weak, the passive, and the outnumbered, as any jungle that existed before the first of Man's legislatures met in official session.