Once more, with feeling:
Everyone’s Gotta Have One.
Trouble is, there are...persons who think – if that’s the right word – that their opinions entitle them to suppress others’ opinions, by whatever means are expedient. And quite a few of them have been, shall we say, acting out on the streets of our larger cities.
I’m sure all my Gentle Readers are aware of the unruly and disruptive protests, some amounting to open riots, that have occurred in the wake of the election of Donald Trump to the presidency. Given the intensity of hatred the Left has exhibited toward anyone who might dare to oppose it, and further given the willingness of Leftist strategists and financiers to encourage that hatred all the way to its foreseeable consequences, I must sadly state that those events were to be expected.
A Martian who had just arrived on Earth might view the tumult and wonder whose baby had been raped and dismembered in Macy’s Times Square window. Surely so much hatred and destruction couldn’t be about losing an election. Elections are supposed to obviate violence: as the old saying goes, to exchange bullets for ballots. That was the original point.
Well, it appears that particular lesson in civics hasn’t sunk into the minds of a lot of younger folks. Their behavior wouldn’t be acceptable from a three year old, but in their sacred opinion, it’s wholly justified by not getting their way.
It’s getting worse by the minute, too – because the supposed forces of order, by their inaction in the face of so much lawbreaking, are legitimizing it.
A behavior deemed generally unacceptable, if permitted to continue without being redressed, thereby becomes legitimate. Not approved, mind you; just moved outside the scope of the law and the operations of law enforcement. We might call this a precedental effect: “He got away with it, so you can’t punish me!” Unfortunately, quite a lot of people “reason” that way.
There are all manner of problems in the law regarding what we glibly call “public property.” In point of fact, there can be no such thing. There are only two kinds of property: that which some individual or entity owns, and that which “resides in the common.” The differentiating characteristic is called excludability.
In the simplest terms, he who possesses the power, de facto, to exclude others from accessing or using an item is the current owner of that item. It is his property, for as long as he can maintain excludability at his whim. Whether the item is “real” – i.e., land – or “movable” – anything that’s not land – what matters is who possesses the power to exclude others from its use.
When contemporary notions about ownership were formalized in the law, the de facto considerations mentioned above were backed by de jure ones. Thereafter, the law would lend its force to the recognized owner in maintaining the excludability of his property. Over time, the law assumed the power of forcible exclusion wholly to itself and away from the property owner. In other words, it was no longer the man sitting on his porch, shotgun across his knees, who maintained the property status of his plot; it was the police precinct he would call to evict a trespasser.
This has important implications for what we call “public property.”
As I said above, there’s really no such thing as “public property,” for “the public” possesses no power to exclude others – and who would those be, anyway? – from “public property.” That power resides in whichever governmental unit is conceded jurisdiction over the item of “public property” at issue. Thus, though we call a street or a government building “public property,” in reality it’s government property, and the government that owns it will make damned sure you understand that.
In most cases of “public property,” there are specific conditions under which members of “the public” can access the property. In the matter of public streets, those conditions are partially explicit and partially implicit. For example, an organization that wants to hold some public event on Main Street, during which the customary flow of traffic would be impeded, must apply to the relevant governmental unit for a permit to do so. If the permit is denied, the event in question would be illegal, and those who might participate in it subject to arrest.
The demonstrations and riots that have followed the election have not been conducted under permit from the municipalities in which they’re occurring. They’re blatantly illegal. But as far as I can tell, municipal police forces have done far too little to curb them. (That’s undeniably the case in those cities where violence against passers-by and nearby private properties have occurred.) Thus, the de jure maintenance of excludability of unapproved users – trespassers, in the conventional phrase – by the relevant governments has failed.
This constitutes a legitimization – i.e., a legal concession – of the demonstrations and the actions of the participants. It is they who now hold the power, according to their whim, to exclude. As a practical matter entirely outside the purview of the law, the demonstrators and rioters currently own the streets.
And that’s not the end of the story.
A legitimization cannot be one-sided. Once de facto control displaces de jure control, whoever possesses the greatest and most effectively asserted force owns the contested item. Nor is any particular assertion the final verdict on the matter.
In this, I think, lies our greatest danger. One spate of disorder does not, by itself, mean that the de jure order is gone for good. As matters stand, there is still time for law enforcement to reassert control of the streets and insist upon the re-establishment of order. But should the apparent willingness of the authorities to scamp their responsibilities by tolerating these disorders persist for too long, they will lose their authority. The de facto legitimization of the demonstrations will provoke counteraction by opposed persons and organizations. Naked force, and not the law, will determine whatever kind and degree of order prevails. The language of war will overpower the language of law.
It does not matter that the Left “has it coming to them.”
It does not matter that the Right is better armed and trained.
It does not matter that we would enter the fray on the side of law and order.
This is not “a consummation devoutly to be wished.” Remember how many bodies littered the stage at the end of Hamlet.