Friday, June 1, 2018

Preconditions For And Implications Of The Rule Of Law

     There’s been an awful lot of yammering about “the rule of law” in recent weeks. Most of it has come from commentators who either don’t know what that august phrase means or secretly dislike the whole concept. In consequence, we’ve had a lot of Sturm und Drang with approximately no penetration of the actual state of legal affairs in these United States. But when the semantic noise rises to pain-threshold levels, the Gentle Readers of Liberty’s Torch know they can rely on one voice to raise it fifty decibels higher to cut through the confusion and restore logic, reason, and order: your old Curmudgeon.

     Grab a voice recorder, put on your rain slicker and Wellies, go out to the street, and ask a hundred passers-by what “the rule of law” means. Record their answers to that one question; don’t add further inquiries in a vain attempt to clarify whatever nonsense they spout. Go ahead; I’ll wait.

     What’s that? You didn’t? It’s too hot, or too cold, or too damp or dry? Shame, shame. All right: I’ll ask you, then: What is “the rule of law?” And I, being a privileged party here, will ask a second question: Who told you that?

     The usual interpretation of “the rule of law” is that “the law rules:” that is, that the preferences and opinions of men in positions of authority are subordinate to the dictates of the law as written. It sounds good, but in practice it cannot be attained, for a simple reason: the laws must be enforced by men. That gives the enforcers discretion about when to apply the law.

     I’ve written before about prosecutorial discretion and the hash it makes out of our legal order:

     The right of trial by jury says, in so many words, that you cannot be punished by State decree. You can only be punished by the judgment and with the consent of your peers. But a State that cannot inflict punishment upon its subjects without their explicit consent is not a State in the original sense of the word: an organization that commands the pre-indemnified use of force, whether initiated or in response.

     The statists that rule this once free country have made a mockery of those guarantees. They’ve done it with “prosecutorial discretion,” with laundry-list charges and “plea bargaining,” with the silencing of the right of jury nullification, and perhaps worst of all with administrative laws created and imposed by unaccountable bureaucrats, entirely outside the Constitutional requirements on the law.

     We permitted it. We were told it was “necessary,” that the usual processes of legislation and judicial operation were “inefficient,” “unsuited to our complex modern era.” And we swallowed it whole. The ghost of William Pitt must have wept at the sight. Yet people ask me why I study the skies each night, hoping for a convenient planetoid.

     But prosecutors are only a single link in the enforcement chain. Before them come the police, who choose whether or not to act on some seeming violation of the law. After the prosecutors come the judges, who possess an almost unbounded power to dismiss any legal action that comes before them. For a law to be enforced requires the collaboration of all three...along with a common, undisputed understanding of what the law addresses and forbids or requires.

     Clearly the preferences and opinions of men cannot be extricated from this morass.

     As bad as the above is, there’s still worse obstructing the conviction that “the law rules:” the laws often contradict one another.

     The most common case of this problem arises from violations of the individual rights set forth in the Bill of Rights, most notably the Fourth and Fifth Amendments:

     Article IV:
     The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

     Article V:
     No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

     Inasmuch as the Constitution as amended is “the supreme Law of the Land,” by which “the Judges in every State shall be bound thereby,” then any law that:

  1. Contradicts its terms; or:
  2. Sets aside one of its guarantees; or:
  3. Requires the violation of its constraints to be enforced; perforce invalid, and cannot be legally enforced. Yet we endure numerous laws that are enforced at the expense of our supposedly guaranteed rights. The Constitutional requirements for a valid search warrant are routinely shrugged aside. The destruction and disorder inflicted even by a search performed under a valid warrant are seldom repaired or compensated. Similarly, the police often take property from wholly innocent persons and never return it to them, with no compensation offered.

     Many are the laws that could never be enforced without violating the Amendments mentioned above. Start with the drug laws and the laws against prostitution and gambling, and proceed from there. Add the enforcers’ discretion as already discussed, and what happens to the idea that “the law rules,” rather than the preferences and opinions of men in positions of power?

     Two subjects of recent interest pertain to the question of whether America is a nation in which “the law rules.” First comes President Trump’s pardon of Dinesh D’Souza. Second is disgraced former governor of Illinois Rod Blagojevich’s argument for a pardon. The first case illustrates how an individual’s rights must be violated to prosecute him under a bad law. The second case addresses the discretion the enforcers possess concerning whom to pursue under a given law. Both are worth your time to ponder.

     Concerning the D’Souza matter, the campaign finance law is impossible to enforce other than selectively, which violates the equal-protection guarantees of the Fourteenth Amendment. This compounds the damage it does to freedom of expression.

     To enforce the campaign finance law evenhandedly would require the continuous monitoring of virtually all financial transactions and all related communications. How else would the authorities be able even to surmise that Smith's gift of $X to Jones was made in expectation that Jones would donate it to Davis's campaign? That degree of governmental intrusiveness exceeds anything decent Americans would tolerate for any reason.

     It is stunningly ironic that the very politicians screaming to "get the money out of politics" are excepted from the law, so that they can spend unlimited amounts of their own money -- and is it their own money, in every case? -- on their own campaigns. This is an example of a kind of law Americans should not tolerate: one that creates two castes: We the hoi polloi and They the Privileged Elite. Royal families and aristocracies that wear ermine robes may be easier to recognize, but they're no more pernicious.

     In the matter of Blagojevich’s conviction for his attempt to “sell” the U.S. Senate seat vacated when Barack Hussein Obama was installed as president, it is true that many other politicians have done essentially what he did, more or less in plain sight, and have faced no legal consequences for it. But here, time and changes in our surrounding environment matter critically. Blagojevich committed his offense in 2009. Had he done so in 1989, he might have escaped legal consequences. In 2009, his misdeed could be noised all over the world in mere minutes — and it was.

     As a rule, members of the political class dislike to see one another prosecuted. It gives them all the uneasy feeling that they could be next. So when a politico commits a non-violent felony, as long as word of the deed doesn’t get outside their protected and protective circle, they’re more likely to hush it up than to allow it to become a matter for the courts. The common, non-office-holding citizen is less likely to go along with that.

     Pre-Internet, shielding an officeholder from the consequences of his crimes was usually achievable, which might help to explain why the Clintons got away with so much during Bill’s time as governor and as president. Today, a pol can’t afford to wipe his nose wrong in sight or hearing of others, proximate or remote. The Net sees all, knows all, and tells everybody.

     Some legal scholars will tell you that “the rule of law” is an aspiration rather than a constraint that can be strictly observed. They’ll argue that “we must have” certain laws, even if their enforcement inherently violates individual rights or Constitutional guarantees. In the usual case, they decline to address any further objections.

     But that word “must” is a good companion to my other favorite word, “should.” The use of “must” implies that the consequences of not having the law under discussion would be intolerable. That, of course, is a judgment that We the hoi polloi are supposed to accept without objection.

     It becomes ever clearer that “the rule of law,” as our grade school civics classes taught it to us, is a phantasm. Its preconditions are unmet. Its implications contradict our understanding of more fundamental laws about right, wrong, and reality. And with that I yield the floor to my Gentle Readers.


Linda Fox said...

You know, I hadn't looked at the 5th amendment in some time. Once part immediately leaped out at me:

"nor shall private property be taken for public use, without just compensation"

It's pretty clear, even to non-lawyers, that the civil AND criminal forfeiture laws are unconstitutional. I doubt anyone in Washington give a flip for that, but - it's just one more thing to put on the "when the revolution comes" list to correct.

Rick C said...

"Concerning the D’Souza matter, the campaign finance law is impossible to enforce other than selectively"

I don't think the complaints were mainly about whether it was enforced, but *how* it was enforced. From what I read at the time and lately, it's pretty unusual to go after someone as vigorously as the government went after D'Souza. A slap on the wrist and a fine is more common, if I read the articles correctly.