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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
It is rule by tyrants.
Oh, I thought you meant the citizenry responded to oppressive government with extreme punctiliousness as their act of rebellion.
Removed by author.
I’m not encouraging destructive or illegal plans.
That’s a fact now?
I haven’t yet decided whether this means I need to double down on my support for Republicans or to abandon Republicans. What it doesn’t mean, though, is that that the system is so irredeemably broken that I should abandon it and substitute my own law. Not even close.
True. A difference is that it’s easier to leave a failing locality than it is to leave a failing country.
That is the basic premise of Three Felonies a Day.
No quite the opposite. They meekly accept severe penalties and walk the straight and narrow.
Very true. A hopeful trend for the future is the growing demand and availability for non-governmental schools. Increasingly those educated outside of the traditional “public” school system are likely to be the leaders of tomorrow. This will have a positive long term trend, but it will probably take at least a generation before we see the effect.
That doesn’t make it a fact, though. I’ve always thought of it more as a provocative way to make a broadly legitimate point: that laws are too intrusive, complex, and numerous now.
I have heard numerous law professors say similar things. That every adult in this country can be brought up on some federal charge. With anywhere from 10,000 to 300,000 federal crimes depending on which estimate you go by, this shouldn’t be too controversial.
I have read this as well. You see it happen a lot. Heck, you don’t have to be guilty. They can just use the process to ruin you. Tom Delay, anyone?
Those are different claims. The far more reasonable is the second claim that everyone, at one time or another, has done something they could be charged with. I suspect, to the extent it’s true, that it has less to do with labyrinthine laws than it does with youthful experimentation, indiscretion, and impulsiveness. To me, both claims are are questionable at face value and are most useful as provocative illustrations of the general problem, which is legitimate.
Do you see it happen a lot? I don’t.
What would be your threshold for misuse of the Justice System where you would find it a problem? By that I mean, how many episodes per year for it to be an issue?
You broke the law last time you drove, I am sure of it. No one can drive perfectly.
And, maybe you have never recorded a sporting event, or a movie, or downloaded free music. Maybe you have never cursed in front of children.
But all of those can be felonies if the DA wants them to be. And even if you win your trial, you still lose in the face of the government. The process is the punishment.
Is that a real standard? You haven’t personally encounter a problem, so it likely doesn’t exist?
True. But none of those are because of the federal government. They are despite the federal government. From 1812 to 1941, no foreign power attacked the US despite the US having a minimal standing army and navy. We are the wealthiest nation on earth because of the energy and creativity of entrepreneurs who (were) unshackled by oppressive regulations. We enjoy relative domestic tranquility because at one time, we tended to leave each other alone. Now we have a meddling and overbearing Federal government.
Furthermore, if a party goes beyond the initial obligations and duties in the contract (ultra vires acts) the other party is not obliged to acquiesce to those ultra vires acts.
First, I was disputing that it happens “a lot” not that it happens at all or that it’s not serious when it does happen. Second, that it’s serious does not mean that the entire system is illegitimate. Third, misuse of the justice system is different than the assertions that Frank was defending. Otherwise if you’re referring to what Frank was talking about then I’ve said a few times already that the overall point is legitimate: that laws are too intrusive, complex, and numerous. We don’t need to swear by dubious assertions to prove it, though.
That wasn’t my argument, but since you bring it up: is “you see it happen a lot” a better standard? Or “numerous law professors”? Do those statements make the assertion likely?
I have yet to see anything dubious. But maybe Three Felonies a Day is dubious.
Going 5-10 mph above the speed limit is not a felony; I wouldn’t be brought up on charges, I would be issued a citation anyway (though I haven’t ever received a speeding ticket). I have never recorded a sporting event, never copied a licensed vhs or dvd, and never downloaded illicitly distributed music; it is the law, though, and I don’t have much beef with the legitimacy of any of these. I have rarely cursed in front of children; I’m not sure if there’s a cursing law where I live but I’m pretty sure it wouldn’t be a felony if there were.
But I already agree with you and have said so a few times. I don’t agree that these assertions should be used as fact, though. Using them that way diminishes the legitimate point, IMO.
Yeah, I think we tangled on this when someone had a post on the book awhile back. As I said then and now, I don’t think the assertion is technically true, but there is a broad and important truth there. I think we can effectively speak to the truth better without getting caught up in trying to defend frequency and and severity.
James Of England:
Always appreciate hearing from the most patriotic non-American I know!
Your idea and my idea of the “fundamental obligations” of the American government don’t coincide. MY idea of the fundamental obligation of the government is that it exists to promote liberty. The rest is froth. YMMV.
What you call “froth” I call the methods used to promote liberty.
James didn’t mention any methods. He mentioned outcomes.
Aren’t those outcomes dependent on and closely tied to the implicit methods? Or do you think those outcomes are merely luck of the draw, possible regardless of government?
I think those outcomes are unavoidable when a government fosters liberty, but they can be arrived at by other means. Singapore and Hong Kong have all the favorable outcomes James mentions, but I would want to live in neither place.