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The Rule of Law?
Most Americans claim to support the rule of law, especially over the rule of man. There is a good reason for this position: it is a foundational part of the ethos of our nation, one that is voiced (or at least given lip service) by most Americans. There is a long history of its practical benefits for society. While the nation has not always lived up to this precept, it has, by a long shot, been the norm more often than not. Those of us who believe in “playing by the rules” and supporting the rule of law do so under the belief and expectation that:
- All laws are made by us and/or our representatives. And, if the latter, those representatives are directly accountable to us;
- The rights of the minority will be respected and protected in the establishment and execution of laws;
- Laws will not be drawn up singling out certain individuals for attack (i.e. no Bills of Attainder);
- The laws will be impartially enforced on all, the powerful and the weak (i.e. justice is blind), with this responsibility falling both on the Executive and the Judiciary;
- There are different levels of law, with all falling underneath the supreme national law of the Constitution. The higher the grade of law, the more immutable and more precious it is;
- The fundamental purpose of laws is to restrain those who would do harm to others;
- The defendant always gets the benefit of the doubt against the state.
In the aftermath of the Battle at Bundy Ranch there seem to be two primary concurrent positions on the Right: 1) Bundy is legally in the wrong (i.e. by the letter of the law); and 2) the BLM (the government) is morally in the wrong (i.e. by the spirit of the law). As I began to learn of the Bundy standoff over the weekend, that was my initial reaction too. As more information has come out about the matter itself and how it fits into Obama’s America, however, it is no longer so neat and tidy. Let me take you on a progression.
On Sunday, I began to comprehend the breadth and depth of the rage when I spoke with a retired naval officer who was preparing to drive west to add his arms to the revolt. This individual is a serious and sober man of consequence who has had responsibility for thousands of souls and hundreds of millions of dollars of war-fighting equipment under his command. He is not given to rash hyperbole or impulsiveness. He has worn the uniform of our nation for decades and put himself in harm’s way defending her. While the BLM’s decision to stand down caused him to shelve his plans, our exchange caused me to look at this situation more closely. Up until then I had, at best, only a peripheral awareness of the matter.
My first reaction was that the BLM’s heavy-handedness was stupid and provocative. Snipers for a disagreement over cattle grazing fees? Really? Cordoned off “First Amendment Areas”? Really? Are you that arrogant and ham-handed? Are regular Americans that alien to you? Really?
This was followed by a suspicion that Bundy was a crank, but nevertheless being abused. Beyond the specifics of his legal case, it was clear we had dodged a bullet. Bundy himself was a symbol, not the issue. We had come dangerously close to the ignition of a range war. Such a brushfire would be fast-moving and probably bloody, with potentially wide-ranging consequences.
How had it come to this? This was the result of the federal government losing the trust of too many regular Americans. The usual professionally-aggrieved suspects will always be with us, but regular Americans are normally too busy for that. Amazingly, the potential for blowback from the accretion of abuse by federal agencies was not even on the radar of those driving the BLM’s actions. Whatever the legal niceties underpinning the BLM-Bundy standoff, many people – normally law & order types who play by the rules – had been pushed to the breaking point. The chickens of in-your-face lawlessness of the Obama Administration, coupled with the lickspittle “mainstream” media, on top of the accumulation of the “noble lies” by Obama and his supporters, were coming home to roost. Had the frustration hit critical mass?
Thankfully, someone in the BLM grew a brain and they stood down … but it was a tactical retreat. The BLM experienced only a setback, not a defeat. There is no indication they are going to change their ways. The kindling remains stacked and dry, waiting for a torch.
On two recent Ricochet podcasts, commentators seem to have made variations of the argument that Bundy is legally in the wrong, and that the resisters should be more Gandhi-like in order for their civil disobedience to be legitimate. They seemed to take this position while still being emotionally on the side of Bundy, agreeing that the government was being overbearing, but that the rule of law required that we follow the rules and accept the consequences.
This is a reasonable and understandable argument for our side to make. It is what you would expect from conservative Americans who are law & order, pillar of the community types. We want to protect and conserve our traditions and our communities. I include myself in that cohort.
But.
Why must you be willing to be arrested, or lose your property and liberty, in order to legitimately resist abuse by the government? Why must you be further victimized by a government in order to have legitimacy in resisting that victimization? Are you protecting and conserving your community when you constantly retreat before attacks spearheaded by the government? Why shouldn’t the government be afraid of its people, causing it to tread lightly, instead of the other way around? Are they public servants or not?
Three recent items shine an important light on the matter (there are surely more). These pieces raise the question: What is the Rule of Law? When is it legitimate? When is it a screen for the rule of powerful men? Does the rule of law mean you can never use force, or the threat of force, to resist agents of your government? If the game is rigged, why play by their rules?
First, Ron Arnold, writing in the Washington Examiner, argues that the legal case against Bundy may not be so clear-cut as many imagined, and that his legal stance, while on the surface seeming to be unsupportable, may be more reasoned and reasonable. I am not a lawyer and I do not have any special knowledge on these matters, but the argument presented seems worthy of serious consideration. I hope truly knowledgeable legal types will seriously comment on Mr. Arnold’s arguments.
Second, David French has a piece on The Corner which illustrates the absence of equality before the law for rural America. This post articulates how the extreme majoritarianism of the urban elites is riding roughshod over Americans who are not like them. In framing our Constitution, the Founders were careful to put into place protections to prevent 51% steam-rolling the other 49%, or even 90% steam-rolling the remaining 10%.
Respect for the minority position is critical for a large heterogeneous nation to remain intact. The heterogeneity of the U.S. is now significantly greater than at the time of the founding. As one who lives in a rural area of the northeast and works elsewhere, I understand the worldview of both camps: the ruling urban elite and the rural ruled.
However, as the Bundy battle illustrates, no one who lives east of the Mississippi seems to truly comprehend what it is like to live in the Plains and Mountain West. We don’t appreciate what it is like to have a neighbor who is an absentee owner of the majority of the land around you. Furthermore, this is a neighbor who has infinitely more resources than you, makes decisions based on a worldview that is hostile or alien to you and your world, and has the only “legitimate” use of force with which to enforce its decisions. That this neighbor hides behind the rule of law to encroach on your property and make it impossible for you to continue your way of life is the capping indignity.
Third, here on Ricochet, Kozak, in comment #8 of Chainsaw’s Sunday post on the matter, included a video of the specific event wherein the BLM backed down. Sure, many of the protesters were armed and verbally aggressive, but the only ones with weapons drawn in a threatening manner were BLM agents. In many cases – whether armed or not – the protesters either had their hands in the air, or at least well in sight. They clearly established that they would not fire first. Their civil disobedience – preventing federal agents in the act of enforcement – was a quintessentially American version of Gandhi’s protest against the British Raj.
The message was clearly sent: 1) We are going to retrieve Bundy’s cattle, 2) We are not going to initiate hostilities with you (the BLM), but 3) If you fire on us we will return fire. This third stage represents the corrective ability that is the genius of the Second Amendment: the potential for insurrection is limited by the people, not the government.
Do we have rule of law when your influence on the drafting of — and the means of redress from — these laws are largely theoretical, not accessible in any practical sense?
Do we have rule of law when laws are made and enforced by the unaccountable and the (increasingly) alien?
Do we have rule of law when laws are made to target specific types of citizens for the benefit of other specific types of citizens?
Do we have rule of law when law is used as a weapon against the people of the nation, instead of a shield?
An increasing number of those who would classify themselves as conservative, cautious, and careful law & order types would answer “no” to these questions. As Peggy Noonan has written often of late, that is a very big deal. And more importantly, it is a bigger deal than most appreciate. What happens when the forces of stability are radicalized?
If a critical mass of people with law & order mindsets are lost — if the regular Americans who are the unsung supports of our communities lose faith in the system — then there is big trouble ahead. We believe in playing by the rules, and taking the consequences; in picking ourselves back up when we are knocked down. We do not want to tear down our nation, but rather lift it up. We have a deep, abiding love for this nation, for its creed and founding principles. But we are not dupes, and while there is range of breaking points for different people, we are within that range, that “yellow zone”, now.
It does not appear, however, that Washington D.C. comprehends the consequences of losing this type of person, the backbone of society. These silent platoons buttress the nation in many unseen ways. They are taken for granted and often abused for their pains. But without them nothing works.
It does not appear that many in Washington truly understand this reality, or comprehend how close we are to the abyss. They may think their positions will cushion them, but we are all hanging with cats’ paws over the edge. If the fire ignites, we will all be singed and many will be burned. This is neither hyperbole nor a fire-breathing threat. This is the serious concern of one who loves his nation and doesn’t want us to go down that path.
The rule of law must be true in practice and in spirit. An increasing number of the those who have traditionally been rule-following and law-abiding no longer seem to believe that to be true.
Published in General
Having trouble reading your article because of formatting issues, but saw this line from your post:
“Why must you be willing to be arrested, or lose your property and liberty, in order to legitimately resist abuse by the government?”
Agreed.
I heard an interesting interview on the Dennis Prager show with Clark Niely from the Institute of Justice.
He argues that the courts have abdicated their duty to strike down laws and protect our rights.
As an example he cites the number of laws repealed via Judicial strikedown and how it is vanishingly small (2 in a decade? I can’t remember, sorry.)
The court threatened to oppose Franklin Delano Roosevelt but caved to his threats to pack the court with judges that would do what he said.
Niely further argues that when people say “well if you don’t like a law you should get it repealed” they are ignorant of the way American government is supposed to be. Most of those laws should not have been passed in the first place.
Clark Niely’s book: Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government
The facts are that laws are not being enforced equally, it is all about that laws the executive wants to enforce. That is not “rule of law” but “rule of man”.
We try to vote in people to repeal laws, but they won’t then do it, or saddle up to the other side. There is a real divide in this nation between them and us. The Last POTUS not to go to an elite school was Reagan.
Thanks. I have e-mailed Blue Yeti, as I am unable to edit after posting. I hope he fixes it soon.
Good points, both. The corrective portion of the feedback loop is — if not broken — stuck in one direction.
Three Felonies A Day is another illustration of your points.
And how. Once the system goes after you, you are toast. The Media acts to shield the abuses by the Left as they consolidate power. They do whatever they think they can get away with, which is more and more.
And the Media sucessfully brands us as kooks and racist. I do not see how we get from here to there without shooting eventually. I don’t want that, but it seems like it is coming.
You should be able to edit your post via:
Great post. I need to ruminate on this awhile. The last three paragraphs really resonate with me. And yet I wish to think on it some more.
The way it’s supposed to go is you find some local nuisance and teach him a public lesson only in private. He’s been shooting his mouth off, playing the Big Man. His gun barrel’s the wrong length or you’re Worried About The Children. So you can intervene. It’s Shock-and-Awe time. Go in heavy, some air support, some military vehicles. Seize some property. Break some stuff. Face-plant the kid and put cuffs on him. Shoot his dog. Scare his wife. And be sure when you’re done that you’ve got friendly wire photos of him without the cowboy hat, looking like a scared old man. The press will love you. They hate these arrogant kulak yokels even more than you do. He broke regulations. He defied the law. He’s probably a racist and a churchgoer. He’s got a funny yokel name. The reporters’ll know how to spin it. Just make sure there are no squarejohns with cameras. No damned bloggers.
Then all these witnesses show up! Is this any way to run an operation?
I’m sorry: I don’t usually rant but the template has become so predictable.
Contracts bind both sides. If one party breaches a contract, the other party does not continue to be bound by it. This is basic law (IANAL). If you rent an apartment, and find that the apartment does not exist, you are not bound to pay rent.
The Feds (to generalize, but the BLM in Nevada appears to be pretty corrupt) are in breach of the Constitution, IMHO. They’re in violation of their oath to uphold it. We the People are not, therefore, still bound to obey their laws. They’re in breach of the contract, and the judge is crooked.
It’s an ugly observation, but I suspect it’s what motivated Bundy’s neighbors to pick up their guns. They’ve apparently had ample evidence that the Feds are not holding up their side of the arrangement.
As much as the courts and the Feds like to find escape clauses in the Bill of Rights, they contain no such clauses. They’re absolute limits. Time for We the People to start treating them as such.
Time to RETURN to the Rule of Law.
Oh, and as captainpower pointed out to me:
You can edit here:
http://ricochet.com/account/my-conversations/
Bundy is just the latest case of the sort of citizen abuse that causes people to fear and loathe their government. The NSA domestic surveillance programs wouldn’t be nearly as frightening if government didn’t do things like this.
Thanks, the one place I didn’t look for the edit button. I think it is fixed now. Blue Yeti, please ignore my messages. Thank you.
Critically, I don’t think they appreciate how much they are playing with fire. We get taken for granted as being the useful punching bag on which to blame all the problems the Left creates and the Media abets.
Thank you. I hope to read your thoughts when you are ready.
…And that predictability may be its downfall.
As I looked into the matter closely several key points in Bundy’s favor became clear:
1) He appears to be the last rancher in the area hanging on. The rest have been forced out of ranching by the BLM’s regs.
2) the turtle that is the ostensible reason for the BLM’s change in policy, appears to coexist just fine with cattle.
3) the turtle that is the ostensible reason for the BLM’s change in policy has been imported — or at least augmented — on the land which Bundy has traditionally used for grazing pasture.
Together these seem to constitute a dishonest use of lawfare by the government to harm his property and economic interests.
Yes I agree, but this is cumulative. When do we hit a critical mass of straws breaking the camels’ backs? When that happens the dynamic will change dramatically and quickly. My point is that I don’t think DC understands this. Or maybe they do, hence all the ammo buying of the past few years…
I come down on this pretty closely to Kevin Willaimson.
So true!
Actually, the Courts lately have been striking down laws. But the ones they are striking down are the ones passed by the People, that DEFINE MARRIAGE AS BETWEEN ONE MAN AND ONE WOMAN. They are striking down laws that go to the very basis of civilized society. Is our government screwed up, or what?
Yes, that is ironic. Because, as CaptainPower notes above, in Nieley’s book, Term’s of Engagement, there’s a strong argument to be made that the courts have failed to discharge their responsibility of protecting the Constitution from laws passed by various legislatures that run contra to it.
Tuck’s post is another piece that illustrates this argument
Let’s not forget there is supposed to be a difference between laws and regulations. Too many vague laws that say something like, ‘the Secretary shall decide’. I’ve mentioned the Lacey Act along with Obamacare.
Excellent point. Regulations should flow from the law and be answerable to it, not the other way around.
What’s the alternative? Caving in to threats even after the systemic means of resolution and arbitration have been exhausted? That might be nice from a cosmic perspective (assuming “right” is actually on your side – certainly could be a subjective matter), but from a practical perspective it’s chaos. You think a law or ruling is abusive? Then challenge it according the means provided for within the system; our system has many means available. Of course you might fail; maybe the system is abusive/illegitimate or maybe you are wrong. Either way, if you think it’s egregious enough to reject the system and challenge it physically then how can that result in anything other than your arrest/injury? Your objections were heard and overruled, like the scene in A Few Good Men where the judge overruled an objection and then Demi Moore’s character registered her strenuous objection. You might be right (in the cosmic sense), but the system you participate in has disagreed.
Only elected officials, bureaucrats and illegal aliens are permitted to violate the law and maintain their way of life. Others in America should expect the full, weight of a police force – whether from the Post Office, the Department of Education, the BLM, the IRS or other agencies to show up and threaten them with imprisonment or punitive action at the point of a gun.
Jerry Brown, acknowledged while he has the Attorney General of California that there were sanctuary cities in the state that were violating federal immigration law. Sanctuary cities were also in violation of California Statute 43B which stated that California law enforcement agencies were legally bound to uphold federal immigration law. By openly ignoring 43B, Brown violated his oath to the California Constitution and should have been removed from office before he even ran for governor.
When the application of law is selective, we live in a tyrranical state subject to the whims of authoriatorian enforcement. This is doesn’t bode well. One senses that there will be more Bundy incidents.
At the risk of getting off topic and exposing my ignorance once again, this reminds me of the Comptroller/Controller.
Isn’t the job of the comptroller to sign checks only if there is money to pay for expenditure?
Isn’t it his job to refuse to sign checks for money we don’t have?
What happens when the assertion is disputed though? What is the proper means of resolving the disagreement?
Assuming that you’re right about that state of affairs, well then no ever said that trying to impose righteousness would be easy or peaceful.
Good points. One alternative we saw at the Bundy Ranch. That is not over, but it’s not progressing the way the Feds originally envisioned. Nor will it be so tidy for them.
The growing prevalence of the rule of powerful men hiding behind a curtain of Rule of Law is the tinder. What happens when regular folks have had enough? Or will those in — say CA — just continue to accept it? History suggests that the type of revolt is culturally determined. Just look at the range from southern European cheerful private defrauding of defrauding governments, to Singapore’s extreme punctiliousness.