Friday, May 30, 2014

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.


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.


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?


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.

11 comments:

lfdme said...

How many of the millions of fedgov employee who owe back taxes work for the irs? One wonders. And how many of those got bonuses for jamming taxpayers?

Anonymous said...

Outrageous, the decisions and opinions written by the Supreme Court being revised. Revisionist History? What limits do they not recognize? Now they can make past decisions say anything they want? Freaking scary.

We live in "interesting times"

Agreed. We have crossed the line in the sand. We, as a nation, no longer live under rule of law.

Tom said...

Just to be crudely succinct, we have to kill them all. Every one of them involved in this whole system.

This is the law of the jungle that they desire, so it SHALL be implemented.

If anyone can satisfactorily explain another option, there are probably 20-50 million Americans who would like to hear it.

But logic and cold rationality dictate no other course.

Anonymous said...

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.

I would argue that this change was implemented decades ago with the goal of complete conversion having been reached within the last 2 decades. It's stunning to see how far we have fallen. I read yesterday that 249 state employees in NY state will retire this year with a an annual pension of $100,000 dollars per year for life. They are not prohibited from continuing to serve the empire in other capacities such as the "private" sector. Plunder indeed.

WalkingHorse said...

Well done! Mr. Jefferson had some timely observations upon this subject:

"The mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God."
-- Thomas Jefferson


"[a] strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means."
--Thomas Jefferson

"Law is often but the tyrant's will, and always so when it violates the right of an individual."
-- Thomas Jefferson

DAN III said...

Nothing has enraged me more nor made me indifferent to what I consider what was once the United States of America, than the nomination and election, twice, of Barack Barry Hussein soetoro-obama. This individual many refer to as "president" has never met the standards of Article 2, Section 1, Clause 5 of the United States Constitution. He is unqualified to be POTUS by virtue of his alleged father being a British subject. Thus soetoro-obama is not a natural-born citizen and ineligible to be president. The bulk of Americans have accepted him as POTUS. Few of us have not. So, when an individual can usurp the highest law of the land is it any wonder that soetoro-obama continues to run roughshod over the USC and the rule of law ?

The United States Constitution is dead. Freedom and Liberty as once understood to be the hallmark of the United States is non-existent. The rule of law kaput. An unconstitutional and thus illegal individual occupies the position of POTUS. And no person, no entity capable of challenging and removing this usurper has chosen to do so. My country no longer exists.

pipermichael said...

Greetings patriots. Some quotes to arm your libraries of useful sayings by famous folks. Ayn Rand was mentioned, but not quoted. We are there, but, it will take an event to awaken John Q. Public. A martyr like event, or events to shine light upon The Media, those who are keeping the Darkness around what is truth and Light. Our constitutional watchdogs have become lapdogs. Time to show them for who they are, collaborators.

"Cry havoc, and let slip the dogs of war."
--Shakespeare

"When you see that in order to produce, you need to obtain permission from men who produce nothing; when you see that money is flowing to those who deal not in goods, but in favors; when you see that men get rich more easily by graft than by work, and your laws no longer protect you against them, but protect them against you … you may know that your society is doomed."
--Ayn Rand

"The socialist ideal eventually goes viral, and the majority learns to game the system. Everyone is trying to live at the expense of everyone else. In the terminal phase, the failure of the system is disguised under a mountain of lies, hollow promises, and debts. When the stream of other people's money runs out, the system collapses."
--Kevin Brekke

"There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws."
--Ayn Rand

"We are fast approaching the stage of the ultimate inversion: the stage where the government is free to do anything it pleases, while the citizens may act only by permission."
--Ayn Rand

"Gold is the money of kings, silver is the money of gentlemen, barter is the money of peasants and debt is the money of slaves."
--traditional(unknown)

"You can't solve current problems with current thinking, current problems are the result of current thinking."
--Albert Einstein

“When bad men combine, the good must associate; else they will fall, one by one, an unpitied sacrifice in a contemptible struggle.”
--Edmund Burke

“The disposition to admire, and almost to worship, the rich and the powerful, and to despise, or, at least, to neglect persons of poor and mean condition is the great and most universal cause of the corruption of our moral condition.”
--Adam Smith


"The few who understand the system, will either be so interested from its profits or so dependent on its favors, that there will be no opposition from that class." -Rothschild Brothers of London, 1863

"Give me control of a nation's money and I care not who makes its laws." -Mayer Amschel Bauer Rothschild

"I believe that banking institutions are more dangerous to our liberties than standing armies. Already they have raised up a monied aristocracy that has set the government at defiance. The issuing power (of money) should be taken away from the banks and restored to the people to whom it properly belongs." -Thomas Jefferson, U.S. President.

"If Congress has the right [it doesn't] to issue paper money [currency], it was given to them to be used by...[the government] and not to be delegated to individuals or corporations." -President Andrew Jackson, who Vetoed the Bank Bill of 1836.

"History records that the money changers have used every form of abuse, intrigue, deceit, and violent means possible to maintain their control over governments by controlling money and its issuance." -James Madison

Pascal Fervor said...

How many Winston Smiths are at work on these revisions?

And don't they realize how it ends for them? Perhaps in that thought is a solution: self-interested counter-insurgents that wind up doing heroic work.

Anonymous said...

Excellent piece, and I thank you for it. It will stored carefully with other timeless thoughts of importance, from other great thinkers.
Thank you.

KG said...

Tom said "Just to be crudely succinct, we have to kill them all. Every one of them involved in this whole system".
Crude or not, there is no other workable solution.
Perhaps not all, though. A few examples may suffice to discourage the rest.
And just as the law-abiding middle class is held hostage by mortgages and children and wives, then so are the chair polishing tyrants who have families....the soft underbelly, if you will, that no amount of laws and law enforcement could protect in the event of an uprising.
It wouldn't be necessary for patriots to fight the army owned by the government if it was made plain by word and deed that anybody on the side of the government was placing his whole family on the front line.
Repugnant? Yes.
But the fight for liberty is the fight for life and I for one recognize no limits, no rules of engagement in that fight.

Ronald Barbour said...

...and people think I'm weird when I say that I PRAY for a Second American Revolution and the complete destruction of the U.S. Federal Government and BOTH major political parties.

The time has come to start the American experiment in government all over again.

...and for them who would oppose us rebels: SIC SEMPER TYRANNIS!