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The Oppressive Rule of Law — Frank Soto
Here on Ricochet, and elsewhere on the internet, conservatives have been earnestly debating the nature of the rule of law as it relates to the Clive Bundy BLM showdown.
Personally I have found the discussion to be a bit academic. Theoretically, the rule of law — and the concept of equality before that law — spare us from the whims of capricious government officials. It would do so in practice if there were a discrete number of understandable laws that could realistically be followed. As it stands, this simply isn’t the case.
Numerous efforts have been made to count the number of federal crimes that are presently on the books. No one has anything but a ballpark guess, and such estimates range from 10,000 to 300,000. Harvey Silvergate wrote a book on this topic called Three Felonies a Day that argues that, on average, American adults unwittingly commit three federal crimes a day.
A retired Louisiana State University law professor named John Baker describes the situation this way: “”There is no one in the United States over the age of 18 who cannot be indicted for some federal crime.”
This dovetails into our numerous privacy debates in the wake of NSA spying revelations. A common refrain from the Andrew McCarthy wing of the conservative movement is that if you haven’t done anything wrong, you have nothing to hide.
Well, you may not have done anything wrong, but you’ve definitely violated the law, and therefore have something to hide.
The reason life in the United States remains bearable is that, just as it is impossible for citizens to know all of the laws they are expected to follow, it is also impossible for bureaucrats to know all of the laws they are supposed to enforce. In practice, this means very few of us find ourselves on the receiving end of state witch hunts over obscure regulations that carry no moral weight.
But what happens as technology continues to advance, and new tools find their way into the hands of the regulators? Thanks to Moore’s law and the free market, computers continue to advance towards a point where truly amazing and terrifying things will become possible. One day in the not too distant future, expect IBM or another major player in IT to showcase a miraculous new piece of hardware and software that can read and understand human languages so effectively that it has counted and understands everything in the U.S. federal code.
Consider next the amount of activity you presently engage in online. The number of e-mails you send, the pictures you post, the internet searches you commit, the articles you read, and the location data you are always exposing to the outside world. Next consider how many public cameras capture you and your vehicle per day.
Data mining is rapidly reaching a point where just the information that is publicly available about you will be able to make remarkable predictions about your behavior and daily activities.
Now look at your cell phone. Mine has cameras facing in two directions. I have an XBOX that has a camera and microphone that must be on if you are attempting to use the console, and furthermore must be connected to the internet in order to use (this may have changed due to user outrage, but it was the original state of the XBOX1). I have several computers and a tablet, each with cameras and microphones — and each of these devices is always connected to the internet while on. In an instant, half of my house can be under surveillance if the government chooses to get a warrant against me.
Many conservatives have been throwing minor tantrums in response to the plot of Captain America: The Winter Soldier, but a day is coming when, if the government wants to, it can monitor every aspect of everyone’s life 24/7.
When these two new realities assert themselves — perfect understanding of the tens of thousands of laws on the books, combined with an ability to ferret out every actual violation — the situation could quickly become untenable.
On that day, it is far more likely that the government will simply not enforce every possible law that it can, if for no other reason than to avoid revolution. But it will retain the ability to strike at any citizen, at any time, for any reason. And as long as it does so sparingly, we will consistently be told that deference to the rule of law is duty of each of us.
Those who say otherwise will likely find themselves in a court room for violating some obscure statute from the department of Fish and Wildlife.
Published in General
You make an excellent and important point. Criminal law is essentially comprised of malum in se and malum prohibitum. The former is what some people call natural law – murder is always bad, and so on. The second is where the US has gone insane – something made criminal because the lawmakers say so – the SEC laws, environmental laws, etc. Even more insidious is the exponential growth of regulatory law – regulations written by bureaucrats (like me, I’m afraid) that have the force and effect of law.
I looked a little into the grazing law/BLM issue – oddly, the BLM was under liberal assault 25 years ago because they gave primacy to grazing and not enviro issues. Obviously, things have changed. Pass a law! Fix everything! What could possible go wrong?
I can’t stand it anymore. I admit it. I made sarcastic and disparaging remarks about an overfed squirrel while visiting Yosemite National Park. I’m ready to do my time.
Frank, could I borrow your brain sometime? I promise to give it back mostly undamaged.
I wonder which candidate might possibly wake the country up about this dismal state of affairs.
I think we’re already at the point where the government simply doesn’t enforce every possible law it can, and moreover, that it’s fairly normal for governments to not enforce every law they could, if they really wanted to.
It’s still tedious to dig up dirt on many citizens, but tedious isn’t the same as impossible. Especially if you’re not particularly interested in the accuracy of that dirt.
Depending on which rumors you believed, I’ve been a drug-dealing manipulative lesbian witch who’s had affairs with I don’t know how many men at this point. People have active imaginations.
Moreover, it’s “a matter of public record” that I went to an elementary school that I never attended. I don’t know how that happened, but I already have to lie about my elementary school to “verify” my identity with banks and so on, simply because some record-keeper made a mistake.
You had me until the futurist computer software science fiction. I don’t think practically anyone wants to live in a world of absolute law enforcement.
The real problem is now. The law gives the government the ability to prosecute pretty much anyone they wish. They can target, make examples of, or simply nab anyone unlucky enough to have a run in with the feds.
Technology just makes it marginally easier to do something that is easy to begin with.
I agree with you Frank. This is a real problem. And so much of the rules are not even laws, but regulations.
If a President really wanted to make a huge dent in this, he could choose to simple terminate the regulations for most of the government.
A more lasting argument would be to say that Congress cannot Legislate away its right to Legislate, and that until they pass all these regulations line by line, he thinks that the regs are unconstitutional.
Do that as his first act, and the explosion of the economy would speak for itself.
Please, tell us more. :)
Technology is increasing at an exponential rate. Marginal hardly seem to describe the boost government will get out of it.
The government always has a steady stream of targets to go after right now, but the targeting of any given individual can be difficult. That will change.
This is the danger already in effect. It is in the interest of politicians to continue writing many and vague laws while simultaneously enforcing laws only selectively. Dictatorship is the de facto result. Even when law does not forbid whatever they wish to prevent or require whatever they wish to occur, they can use the panoply of existing laws as leverage.
You said it so I didn’t have to.
This is true, but as I said to Mike H, right now the government has it’s work cut out if it wanted to target a given person. One day it will know in a flash which laws you’ve broken.
It does not have to work hard. They can use process to get you. Look at the companies that suddenly get audits, OSHA, and FBI visits. They won’t bother to do actually find a law I broke, they will just harras me.
Or, claim I was lying when my story was different than some other guy’s like the did with Libby, Or smear my name like they did with Martha Stewart, and when she defended herself they got her for that.
I won’t quibble over how difficult it presently is. My point is that it will only get easier for them as technology advances.
I agree with that. I think it is waaaay too easy now. Going to get worse. A lot worse.
Now, if you will excuse me, I have to run hide from the Man!
Happy Easter, Y’all!
Let me put it this way Mike, would you dispute anyone of the following statements?
1) The government will continue to pass new laws and regulations, while removing very few.
2) Technology will allow the government greater ability to identify laws that people are violating.
3) Government will make a conscious decision to enforce the laws selectively, so as to avoid wide spread outrage.
4) That selective enforcement will inevitably become political.
What is there to tell? Some of these rumors date back to high school, but I’m sure there are some people that, if they remember me at all, remember only these rumors, because the rumors are entertaining.
I don’t even know the full extent of the rumors – I tend to find out about them, if at all, long after the fact. It’s probably normal for there to be lots of rumors about shy girls who keep mostly to themselves but nonetheless have some close platonic friendships with guys, at least if the girls aren’t butt-ugly (and I’m not, even if I’m no great beauty). Certainly, it’s normal these days for girls who are uninterested in hooking up with guys to be considered lesbians.
The drug-dealer thing. No clue. High school. Bored kids will believe anything, I guess.
All I know is I now have a potential screenplay for another teen film.
Yes. And for most of us, all that is required is a threatening letter. Defending most any accusation = financial ruin – even if you win. Attempts at organized resistance require electronic communication and will be smothered in the crib. Resistance is futile.
The easier to avoid detection line is one I’m skeptical of. The one with the bigger budget has the significant advantage in the battle between privacy and spying technologies.
We have a bit of a microcosm of this hypothesis in the current federal tax code. The law is so complex and onerous that we have few ways of knowing just how accurate our returns are. Now couple that fact with the idea that we must sign that on penalty of perjury we affirm these forms are as accurate as possible.
Soto’s scenario has a grain of truth.
For Example, weapons technology has increased dramatically since the revolution, but for the individual, it has increased in only fractionally compared to what the government has access to.
What’s more, if one of the record-keepers accidentally loses forms that you submitted, the easy bureaucratic solution is for them to assume you never submitted them, and your return is a fraud.
This just happened to us with state taxes. Out of nowhere we got a call from a collections agency threatening that, if we didn’t cut a huge check to them today, we’d be facing criminal charges, forcible removal of our kidneys, etc, etc.
Someone at our state department of revenue had simply lost a bunch of residents’ W2 forms. Rather than track down the lost forms, it was just easier for the rest of the department to assume that an unprecedented number of residents had all picked the same year to lie about their income in the exact same way.
Just the one?
Well, after reading Walker’s reply, more than just the one. I’m scared now. Hold me.
The ultimate point I’m making here is that the situation is unlikely to ever deteriorate in the aggregate to the point where many people would consider revolution, because the government can always stop just short of that point.
Resisting ridiculous government regulations at more then just the ballot box is a healthy thing. I’m miles apart from Charles Cooke on this particular issue. Uncommon for me.
John, I think I’ve demonstrated that I agree with the problem in general, the part that inspired those words was:
Because I don’t think this is a solvable problem as stated. I am also skeptical about a company “showcasing” such a piece of software, or the government pursuing it, or the courts enforcing it.
I also have a general optimism that makes me allergic to this type of thinking.
The reason Mr. Bundy has lost twice in court is not due to an uneven playing field in the justice system (whether the field is uneven is an important question, but not really in play in this particular case). It is because his legal (if not his moral) arguments are entirely without merit.
You doubt that the government will seek technology that enables them to expand their purview? Why would the courts care about the government mining publicly accessible data?