Sunday, January 8, 2012

The Rule of Law of Rule - Part the First: Freedom's Just Another Word for Nothin' Left To Lose

In response to the post I put up on Friday about how cops in New York City are busting subway riders for such heavy duty crimes as standing too close to the doors, Rick Horowitz added a comment.
What you describe is how the "law" has become so twisted that "law" enforcement now has complete freedom to decide who to arrest, and under what conditions.

. . .

The country that has taken the place of the United States of America is a completely lawless country. It does not matter that "sometimes" the result comports with what used to be the law. That's just an accident. It gives support to the old saying, "Even a blind squirrel finds a nut once in awhile."

The nation has not fallen into anarchy. That may or may not be a good thing.

But the rule of law is truly dead. 
If you read Rick's blog (and if you don't, and you're interested in this sort of thing, you should), you know that he's been pushing that point, with more and more conviction and absolutism, for some time.  And if you've been reading my blog, you know that one of my fairly consistent themes is that there's a tension between the Rule of Law and what I've taken to calling the Law of Rule, and that when they actively come into conflict in American society, it's regularly the Law of Rule that comes out on top.
My response to Rick began this way.
The Law of Rule v. the Rule of Law is, as you likely know Rick, a theme of this blog. While I'm not quite as sure as you've become that the Rule of Law is wholly dead, I'm also inclined to doubt that it ever really lived except in myth.
Then I gave a few examples of that sort of myth and said that I should maybe do a whole post on the subject.  In fact, and although I didn't say it, there's more than a single post to go.  It's time that get going on a series more formally examining the Rule of Law/Law of Rule tension.
So with thanks to Rick for the push, let's begin with examining what we mean when we talk about the Rule of Law and just what I meant when I said it was little more than myth. 
I suppose Wikipedia, for all its limitations, isn't a bad place to start.  It's entry on Rule of Law (at least in its current form - who knows what it will say tomorrow) begins this way.  (I'm deleting the links and the footnotes.)
Rule of law is a legal maxim that suggests that governmental decisions be made by applying known principles. The phrase can be traced back to 17th century and was popularized in the 19th century by British jurist A. V. Dicey. The concept was familiar to ancient philosophers such as Aristotle, who wrote "Law should govern". Rule of law implies that every citizen is subject to the law. It stands in contrast to the idea that the ruler is above the law, for example by divine right.
I don't think Rule of Law is a maxim, legal or otherwise.  A maxim is a principle or an aphorism or something (Davy Crockett's "Be always sure you are right, then go ahead" leaps to mind as I just finished reading a biography of him).  Rule of Law is, rather, a concept.  And I haven't done the historical research (or even checked the footnotes I deleted) to see whether the phrase really dates to the 17th Century or whether A.V. Dicey (of whom I've never heard) really popularized it.  But Wikipedia seems to have part of the general idea.  Everyone is subject to the law.  No special rights.
In that sense, Rule of Law is embodied in the maxim (this is one),
Ours is a nation of laws, not of men. 
The United Nations describes it this way at the Rule of Law page on its website.
The principle that everyone – from the individual right up to the State itself – is accountable to laws that are publicly promulgated, equally enforced and independently adjudicated.
Aristotle made a different but related point in his Politics.
Therefore, he who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men.
There are universal principles, Aristotle was arguing.  Recognize on them, and you've found the Rule of Law.  Make up the rules as you go along ("bid[] man rule"), and you've lost that.
But acknowledging that there are universals isn't enough.  The Rule of Law necessarily involves adherence to those principles.  That's the Rule part.  Law (capitalized) has force.
Combine these things and I think we've got a working definition.
The Rule of Law is adherence to a set of universal rules or principles governing, um, er . . .
Governing what?  and who?
And where the hell do those rules come from?
And what are they?
And how big a universe are we talking about?
A formalistic answer to all those questions is just to declare that the rules are whatever they are (set by man, not by "God and Reason" to go back to Aristotle).
The alternative is that they're something else, if not altogether Universal (God and Reason, Natural Law [whatever the hell that is]), then at least culturally so.  Hammurabi's Code, the 10 Commandments (if you don't think they're divinely ordained).  If culture seems too iffy (What Would the Athenians Do? What Would the Hittites Do? What Would the Amish Do? What Would the Soprano's Do?), God and Reason aren't a whole lot clearer.  Which God? Whose reason?
The Old Testament mandates death as punishment for cursing a parent (see Exodus 21:17; Leviticus 20:9).  Draw a cartoon of Muhammed and there are those who say God insists on your death.  And don't get the the Phelps family and the Wesboro Baptist Church started on gays.
A 2004 Report of the Secretary-General of the UN, "The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies," from which the passage I quoted above is paraphrased, says this.
The "rule of law" is a concept at the very heart of the Organization's mission. It refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.
Not bad, but of course there's a whole ton of disagreement about just what those "international human rights norms and standards" happen to be.  Or should be.

OK, maybe we should eschew true internationalism for something a bit closer to home.  Say, the Anglo-American tradition.
I know: Magna Carta.  The Great Charter.  The document that the peerage (i.e., the nobles) gathered at Runnymeade in 1215 to make King John sign so that he'd be less oppressive to them (not to their serfs, of course, not to the commoners).  From that document, it's said, flows our freedom.  Apparently New Hampshire state Representatives, Kingsbury, Twombly, and Vita think that's a good model, since they introduced in their legislature House Bill 1580.  Here it is, in its entirety.
In the Year of Our Lord Two Thousand Twelve
AN ACT requiring a reference to the Magna Carta on certain legislation.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Section; Magna Carta References. Amend RSA 14 by inserting after section 39-a the following new section:
14:39-b Magna Carta Reference. All members of the general court proposing bills and resolutions addressing individual rights or liberties shall include a direct quote from the Magna Carta which sets forth the article from which the individual right or liberty is derived.
2 Effective Date. This act shall take effect November 1, 2012.So, Magna Carta as universal law? Even in just the Anglo-American universe?
So, Magna Carta as universal law?  Even in just the Anglo-American universe?
A friend of mine, a Brit, responded this way when I told her about HB 1580.
A dirty little secret that we Brits rarely disclose to you Americans is that nobody, but NOBODY, in the English legal system normally refers to the Magna Carta for anything, unless they are totally nutty pro se litigant.  Citing it is a great way to get a round of barely disguised snickering behind one's back.  You see, we've moved on from the Middle Ages.  The citizens of New Hampshire, however, are going to have to figure out whether to cite provisions such as:

"(48) All evil customs relating to forests and warrens,foresters, warreners, sheriffs and their servants, or river-banks and their wardens, are at once to be investigated in every county by twelve sworn knights of the county, and within forty days of their enquiry the evil customs are to be abolished completely and irrevocably. But we, or our chief justice if we are not in England, are first to be informed."
Actually, I left out the first paragraph of what Hilary wrote.
This is a hoot.  They clearly haven't read the document in question - or maybe they have, which would be really worrying.
In fact, they apparently hadn't read it.  At least Rep. Vita hadn't.  From the Concord Monitor.
Vita admitted he needs to "bone up" on the content of the charter, but said "it's a document that still functions." He views the bill as similar to efforts in Congress requiring all legislation to cite constitutional authority.
"This is a little bit older than the Constitution, but the same thought is there," he said.
Sure.   Not universal law, not the Rule of Law, not even politics.  HB 1580 is really just political theater.
But what about the Constitution?  We certainly owe fealty to that. Just ask the Democrats or the Republicans or the Tea Party or the ACLU or the anti-ACLU folks.
I mean, everybody likes the Constitution. Especially the Bill of Rights.  Right? 
And we've always honored them, right?
Let's see.  1791: Bill of Rights enacted.  That includes the ol' First Amendment.  You know, the one about how 
Congress shall make no law . . . abridging the freedom of speech, or of the press.
1798: Congress passes the Alien and Sedition Acts making it a crime to criticize the government.
Ooops.  Guess the framers (or at least the Federalist framers) thought freedom of speech only covered speech in favor of the government.
I can hear the chants now.
Let's Go Status Quo!
Bill of Rights has got to go!
I'm not really being fair.  The universality of a rule doesn't depend on its always being honored.
But the existence of the Rule of Law?  That does depend on at least some degree of adherence, not merely lip service.
And that's where things fall apart.
We have this idea that ours is a nation of laws not of men.  Over the front entrance to the Supreme Court Building, cut into the facade, it says
But that's the entrance you can't use.  The one they turned into an exit only.  Don't let equal justice hit you on the ass on your way out.
Because the reality is that we've never really done more than pay lip service to the Rule of Law.
The Rule of Law is like one of the Platonic ideals, floating in the empyrean.  We like it conceptually.  But only conceptually.
Beyond that, it's pick and choose.
Cafeteria Constitutionalism.
Jefferson believed in the Constitution and a small national government of limited scope.  Then he arranged the Louisiana Purchase, more than doubling the physical size of the country.  And he  thought that it was probably unconstitutional.
It was 1824 when Justice Story explained in United States v. Perez that the Double Jeopardy Clause didn't mean that a person couldn't be tried twice for the same crime and that a jury's failure to agree on whether a person was guilty of a crime didn't mean that the government had failed to prove the person guilty beyond a reasonable doubt.
It 1925 when the Court decided Carroll v. United States holding that the warrant requirement of the Fourth Amendment doesn't apply when it's an automobile to be searched.
As I said, Congress enacted the Alien and Sedition Acts a mere seven years after the First Amendment was adopted.  The Sedition Act of 1918 made it a crime to use "disloyal, profane, scurrilous, or abusive language" about the government or the flag or the war effort.
And of course there was the Japanese interment.
I could go on.
It's not that every move was offensive to the Constitution.  And it's not that they were all without significant opposition.  Certainly, it's not that the courts never stepped in and called a halt.
But the courts didn't always call a halt.  And the opposition too often failed.  And too often the Constitution gave way.
And as Rick said, it doesn't change things that the rule of law (all lowercase) is sometimes obeyed or affirmed.  We don't operate under the Rule of Law (uppercase is back) unless it's the norm.
As it is now.  As it was then.
The Rule of Law applies most clearly when we don't need it.
The First Amendment really does protect the right to advocate for the status quo, and the FBI won't likely be investigating the Democratic or Republic Party - or the Presbyterians or the Baptists - in its search for terrorists or drug abusers.  But don't count on the same level of respect for the Greens or the Libertarians or the Hari Krishnas or the folks at the mosque down the street.
And Lincoln freed the slaves in the states that were in rebellion - those over which he (and we) had no control.  And it was, of course, a quintessential act of taking private property without compensation or even due process.  Pretty clearly an unconstitutional usurpation of power - albeit an act that was morally right.
Rick thinks fondly of those days when our leaders valued freedom.  But it was for them, not for us.  In contemporary parlance, they were the 1 %.  And they valued their freedom.  But not so much that of the 99%.  And especially not that of the folks who were each worth just 2/3 of a person.
I told Rick, in my comment,
The Golden Age, Eden, Camelot's "one brief shining moment," the framer's commitment to personal liberty (for white male property owners), it's all of a piece with the Rule of Law.
Maybe the Law of Rule is winning more often now than in years past.  Frankly, I'm not sure how you'd measure it.  What we know is that it was bad then and it's bad now.
And that you can't lose what you never really had.
But we're all conditioned to a nostalgia for what never was, but what with hindsight we can believe.
And dream.


  1. Well, of course this is quite thoughtful. When I was an undergrad I thought English majors were too mushy headed. I preferred the clarity of logic and reason that philosophy provided.

    But logic and reason unchecked led to Hegel, and while there were certain things that were enjoyable and enlightening about Hegel, overall he was just a mess.

    Unchecked by what, you may ask. I think the answer is humility. The logician has to humble himself before the English major, because the difficult part is not discerning the principles, but applying them. It is in applying them that we encounter what it is to live, with all the attendant beauty or, on the other hand ugliness.

    But then perhaps the English major should humble himself before the logician, too. Because if you throw up your hands after encountering the difficulty of applying principles - that is, the difficulty of life - and conclude that the principles are indiscernible and we should just discard the whole idea, maybe you lapse into indulgent aestheticism and sentimentalism. And just to be clear, that is not Jeff Gamso or Rick Horowitz or just about any other independent lawyer I know.

    The real reward of practicing law, in my opinion, is that you're in the middle of this muddle all the time. It's one of the central questions of life, or living it. The difficulty of it presents itself anew, and in a different form, with each case and each client.

    Most people, and even most lawyers, like the ones who become prosecutors and judges, like to pretend these difficulties are all easily resolved. In a real sense they stop living, because to live is to genuinely grapple with life's difficulties.

    But independent lawyers, real lawyers, are different. That's why I love them so much.

  2. Despite the sometime inspiration I find in the writings of Thomas Jefferson, I don't really get the nostalgia people have for the era of the founding fathers. Besides that Alien and Sedition Act thing, what a truly horrible country it must have been when chattel slavery permeated the atmosphere. Moreover, despite all the freedom rhetoric that characterized the era, there is a lot to question in the motives of the founders, as both Albert Jay Nock and Howard Zinn have amply shown.

    I've never been one to tout Magna Carta, and it does seem to be a favorite hobby horse of cranks and "sovereign citizen" types. Lysander Spooner has some interesting things to say about it in his Essay on the Trial by Jury, however, and it does seem appropriate for supporting what trial by jury means and what it should be, for at least that limited purpose.

    And in fact, the Trial by Jury seems to be a lynchpin of what the Rule of Law is all about. It represents the intersection of the notions of "God and Reason" and the "Anglo-American tradition" as foundations of the Law. It incarnates procedurally the Presumption of Innocence. And the Presumption of Innocence equals the Presumption of Liberty. Which equals the Presumption against Violence. Which is a universal moral law, going back to Thou Shalt Not Kill, Thou Shalt Not Steal, etc. Most essentially, the Trial by Jury, properly conceived, represents the notion that the people, and not any who set themselves up as rulers of the people, determine their own liberties.

    Of course, this is all arguable. Rick Santorum, for example, certainly has a different view than mine about what God and Reason, or the Anglo-American tradition, tells us about the appropriateness of the use of (government) violence.

    As you imply, it's hard to know whether, e.g., the NDAA marks the beginning of our final slide towards 1984, or whether it's just business as usual.

  3. And of course there was the Japanese interment.
    I could go on.

    By all means, continue. Be sure to bring up Unit 731, Comfort Women and the Nanking Massacre.

    And, while I'm at it, you might consider that there is every chance in the world that the friendly folks at the mosque down the street are planning to blow up One Government Center with Our Fearless Leader in it.

    Well, we couldn't be that lucky. This is Toledo we're living in - not Columbus.

    The thing is, we keep electing legislators and these idiots keep writing laws. They won't quit, and they won't erase (un-write? veto?) law that's already written. Worse, they write law that affects and oppresses that segment of the population that can least afford to protect itself. I'm talking the middle class and lower.

    I have hope, though. Sooner or later the legislators in Columbus are going to attack their natural enemies - attorneys and judges. This will be a concerted attack, likely involving a more practical form of law enforcement. Wait until a few middle aged, wealthy, politically connected attorneys get tazed, cuffed and stuffed. Then maybe we'll see some relief.

    Now me, I'd have dropped a third atomic bomb on Japan by way of retaliation for Unit 731. But that's just me.