Paper restrictions just aren’t very good at limiting the power of the state.
On the grand scale, of course, we have a written Constitution whose enumeration of delegated powers is almost universally regarded as a dead letter. Occasionally some mossback literalist on the Supreme Court will object to the lack of a pretext under any of the powers enumerated in Article I Section 8 — but all Congress has to do is repass it with a preamble saying it’s pursuant to this or that power, and it’s fixed. (The Commerce Clause is always a good hook to hang anything on; federal drug prohibition, for example, is supposedly an exercise of that power). Clear prohibitions like the First Amendment’s “Congress shall make no law” and the Fourth Amendment’s restriction of warrantless search and seizure, once the Supremes get through weighing “compelling public interests” and “reasonable expectations of privacy,” become at best one consideration among many.
And that’s just the interpretation of the alleged fundamental law by the constitutional lawyers on the Supreme Court.
What matters even more is the enforcement arms of the state apparatus just don’t pay much attention to the law. According to most state statute law, recording police officers in public performing public functions is clearly not interference with police business, as such; neither does it violate wiretapping statutes. But cops routinely arrest citizens for refusing to put away their cell phone cameras, because they really don’t care what the law says. Like hospital corporations that deliberately downsize staffing to unsafe levels and oil companies that deliberately cut every imaginable corner on safety measures, they judge the payoff as worth the risk of litigation.
When local voters or a city council reduce pot enforcement to the lowest police priority, oddly enough, police forces don’t adjust their priorities accordingly. You’d almost think these guardians of law and order don’t care what the law is, if it restricts their own power.
And the state bureaucracy doesn’t pay much attention to official policies made by their nominal superiors, the elected officials and their political appointees.
You probably remember how Reagan NSC staffers got around a little legal technicality like Congress’s refusal to fund the Contra death squads in Nicaragua: they just sold some arms to the Iranians and some crack to the Angelenos.
More recently, Tom Engelhardt and Nick Turse of the news site TomDispatch.com, which does some excellent reporting on the U.S. national security state, present some disturbing information about the activities of the U.S. military command in Iraq and Afghanistan (“So You Think You Know About the American Empire?” Alternet, September 16). At a time when Obama has scheduled a withdrawal of U.S. forces from Afghanistan next year and officially proclaimed combat operations in Iraq at an end, the Pentagon has begun construction of three $100 million military bases in Afghanistan that won’t be completed until after the projected pullout. Despite the plan to withdraw even advisory troops from Iraq, the military is proceeding with base upgrades. Meanwhile, the State Department has arranged to double private security contractor forces at the Baghdad Embassy to 7,000, and Xe Services (aka Blackwater) has created numerous subsidiaries and shell companies for to make their cozy relationship with the U.S. government a little less embarrassing.
So when it comes to restricting the state, the law isn’t worth the paper it’s written on.
I would think that the law would serve a purpose as a trigger for rebellion — when the state blatantly violates the law, the state is illegitimate.
However, that doesn't seem to work anymore. I don't know if we have had too many divisions in this country (race, region, party, etc.), if too many of us are too comfortable and scared of change, or if this theory of the law never meant much in the first place.
Many of the modern absurdities of constitutional interpretation date back a century, and I know that there were other blatant violations of the Constitution before that. Somehow, people just don't care about what the law is, and we're so far removed from any ideal of government by law, that there is really no way to go back.
More important than any written law is how the law is actually interpreted, applied, or enforced. Having taken a hard look at American law, jurisprudence, and law enforcement over the years, I'd say "the law" basically amounts to a consensus of the values of the ruling and managerial classes.
The "judicial activism" that conservative constitutionalists are always complaining about is mostly just an effort by the educated classes to write their own value systems into constitutional law. Second Amendment rights to bear arms or Fifth Amendment protections for property rights are weakened or ignored because the elite classes don't take these rights seriously. Abortion rights, gay marriage, a strictly pro-secular interpretation of church/state separation, policies associated with the therapeutic state (like drug prohibition), the welfare/regulatory state, federal control of local educational systems, and so forth are read into the Constitution and other fundamental legal charters using specious legal arguments because, well, that's what the educated elites want. It seems to me that law essentially reflects the values of the upper middle class as those values are construed at any one point in time.
Btw, I'm not arguing in favor of an "originalist" interpretation of the Constitution a la the Scalia-Thomas-Bork fans.
What I would like to see is the emergence of an authentically libertarian jurisprudence that endorses a principled judicial activism as a defense mechanism against the other layers and divisions of the state. I'd have no problem whatsoever with a Supreme Court decision similar to Brown v Topeka Board of Education or Roe v Wade that declared drug laws to be an unconstitutional invasion of individual privacy rights, nor would I have a problem with an interpretation of the Thirteenth Amendment that declared military conscription to be involuntary servitude and therefore unconstitutional.
I wouldn't go so far as to say that courts (whether public or private, constitutional or common law) are duty-bound to uphold Rothbard's "Ethics of Liberty." For instance, I could see utilizing a bit of legal realism when it came to conflicting claims of rights. As an example, I could see denying the right to inflict gratuitous cruelty on animals simply because animals are property, or allowing totalitarian subversive movements the legal means to overthrow a libertarian society. I would apply the same principle to uncontrolled mass immigration as well, though I know most of you probably disagree with me on that.
Also, I would allow for a certain deference to history, cultural norms, and tradition when it came to such conflicts. Barring all forms of religious expression in any institution even remotely connected to the state, like a ban on nativity scenes in public parks or invocations and public school graduation ceremonies, seems way over the top and counter-productive.
Kevin, I've always thought the "original understanding" type theories of Bork et al. are the only ones that make sense from a legal perspective. But of course justice is more important than the legal perspective. So I agree that it would be unobjectionable for a Court to declare drug laws unconstitutional, say, as I argue in Higher Law. But we should be honest about it. Using any reasonable originalist approach it's hard to argue this. One would be upfront about one's adherence to justice.
Not sure how a judge would come to "deny the right" to be cruel to animals, since the animal would have no standing to bring a suit.
Stephan: I'd certainly consider it fully within the original understanding of the Constitution to declare federal drug laws unconstitutional, based on the actual understanding of the Commerce Clause at the time of ratification (not to mention the Ninth Amendment). But I guess I'm ambivalent about "libertarian centralism" when it comes to things like the incorporation doctrine of the 14th Amendment, just because a federal government capable of intervening so powerfully on behalf of stuff I want could just as easily intervene to take away stuff I want.
My own favorite originalist is Raoul Berger. Unlike most of the Federalist Society types, he actually considered the President as well as Congress to be constrained by the Constitution.
Kevin,
uthor: Kevin Carson
Comment:
"I'd certainly consider it fully within the original understanding of the Constitution to declare federal drug laws unconstitutional, based on the actual understanding of the Commerce Clause at the time of ratification (not to mention the Ninth Amendment)."
Oh, I don't know waht I was thinking. Of course the federal drug laws are unconstitutional. Not b/c of the 9th or CC — but b/c of the limited powers nature of the fed gov't, emphasized by the 10th. They just have no enumerated power to ban drugs. Right.
" But I guess I'm ambivalent about "libertarian centralism" when it comes to things like the incorporation doctrine of the 14th Amendment, just because a federal government capable of intervening so powerfully on behalf of stuff I want could just as easily intervene to take away stuff I want."
Yes, me too.
"My own favorite originalist is Raoul Berger. Unlike most of the Federalist Society types, he actually considered the President as well as Congress to be constrained by the Constitution."
Of course they are, which is Jefferson's idea of concurrent review.
Kevin,
"But I guess I’m ambivalent about “libertarian centralism” when it comes to things like the incorporation doctrine of the 14th Amendment, just because a federal government capable of intervening so powerfully on behalf of stuff I want could just as easily intervene to take away stuff I want."
As everyone probably knows, I'm a decentralist in theory. But within the context of the system we actually have, I can't see any real problem with federal courts striking down un-libertarian state or local laws. That might be more objectionable if we had something close to an authentic federal system (like the Swiss, for instance.) But as things now stand, states are just administrative units of the federal regime. We could also fall back on Lysander Spooner's constitutional theories, which argued that states had the right to secede if they wanted, but if they remained in the Union they were bound by the constitutional compact, which was itself an expression of the Jeffersonian political theory of the Declaration of Independence. I'd be okay with that.
Stephan,
A criminal defendant charged with animal cruelty could offer a defense or appeal a conviction on the grounds that laws prohibiting animal cruelty interfere with this or that constitutional right (e.g. property rights, privacy rights, etc.)
Keith, "within the context of the system we actually have, I can’t see any real problem with federal courts striking down un-libertarian state or local laws."
Me neither but of course you can't expect them to do this, or not just this. They'll be using the same power to strike down state medical marijuana laws, order desegration-based busing, etc.
"as things now stand, states are just administrative units of the federal regime."
NOt so sure it's so far gone.
"if they remained in the Union they were bound by the constitutional compact," Even if they are bound by it, if they breach the agreement, the others are free to eject them not invade them.
"A criminal defendant charged with animal cruelty could offer a defense or appeal a conviction on the grounds that laws prohibiting animal cruelty interfere with this or that constitutional right (e.g. property rights, privacy rights, etc.)"
NOt sure there would be "criminal law" in a free society; there would always have to be a plaintiff.
“Rule of law” is a fallacy any way you slice it. “Law” is an abstract concept that can’t act on its own. Most often, it is used as a facade to hide the structural biases favored by the ruling class.
You can argue that “rule of reason” is a worthwhile goal, but I’m not sure it gets much further as it suffers from the same flaw – “reason” can’t act. It requires fallible humans to enforce, often ignorant of the true facts of the situation they are trying to apply reason to. Much better, IMO, to just recognize who, in fact, is truly ruling, even if it is merely some form of jury or arbitration panel that is backed by a majority of the local population. Deal with realities, not fictions.
As far as animal rights being dependent on their ability to act as plaintiff, I think that’s backwards reasoning. Whether or not one has rights doesn’t need to depend on your ability to assert them. Rights are secondary concepts that are derived from underlying beliefs. If one underlying belief is that no living thing should be made to needlessly suffer, then animals would clearly have rights that can be enforced by third parties. Similarly, Stephen Hawking would not lose his rights merely because he gets stranded in a technologically backward area that can’t supply the electricity necessary for Dr. Hawking to be able to signal to the world that he is conscious and thinking. He may not be able to assert or enforce them in any way, but it doesn’t affect the existence of his rights.
Quasibill: I think it’s certainly right that laws don’t rule. But is “rule of law” still a useful, short-hand way of talking about the difference between a situation in which disputes are resolved in ad-hoc ways and one in which resolutions are constrained in a reliable, predictable manner in light of standards of which most or all disputants are aware? For the latter kind of situation to obtain, local juries and other sources of dispute resolution have to choose to behave in certain ways, of course; an actual consensus on behalf of reliability and publicness is required. But such a consensus does seem both possible and desirable.
I find your analysis of the situation vis-a-vis animals dead-on: it’s not necessary to be a moral agent in order to be a moral patient. Whether a given life-form is recognized as a moral patient in a given context obviously depends on consensus–that’s because recognition is a social fact, not a normative one. But it would still be quite consistent for us to believe that the consensus in a given environment was dead wrong. In a setting in which there was a consensus that at least some interests of some non-human animals deserved legal protection, it wouldn’t be very difficult to craft mechanisms for protecting those interests.
Gary,
I’m not sure I think it is a useful short-hand description, as it is obfuscatory. I think that’s a defect that helps lead to problematic thinking. As for the difference between ad-hoc and predictability, first I’d say (and you’ll probably agree) that predictability doesn’t count for much on its own; it was fairly predictable who would come out on top between a Jewish shop owner and an SS officer in Germany. What counts more, IMO, is that the outcome reflects the morals, etc. of the community. Almost every case is different in some way, even under “the law”. In my preferred society, a whole lot more of the circumstances of every case would be relevant to the outcome. Those “judging” would personally know the disputants, their histories, their proclivities, etc. They could take into account the current circumstances of the litigants (impoverished, drug-addicted, etc.) in fashioning not only the decision, but the restitution, etc.
The problem with “the law” is that it tends to whitewash important differences that exist in lacunae and niches in the vain search for objectivity. And that’s even before we deal with the informational issues involved (should the degree of doubt about the facts of the case factor into all the other decisions the ‘judge’ renders? I say yes, but I don’t think you could ever do that under “law”).
Again, I find it much better to just call it what it is – rule by [x], applying [y] morality. And this ties into a point you made in the last paragraph. We absolutely can find that the consensus in a given environment is dead wrong. But I believe that perhaps the keystone of any such analysis begins with whether the person (or animal) is there voluntarily. Many things I find dead wrong I feel I have no right to declare “dead wrong” (as opposed to stupid, or counter-productive) so long as the people involved were able to make a knowing choice at some point to subject themselves to the thing I find wrong. I would argue that in most cases, exile should be allowed to the person rather than any other coercive conduct, and that the absence of the choice of exile might factor into a finding of “dead wrong” even if the person had previously consented to the application of such a remedy. But it really depends on so many circumstances and factors, that it is fairly misleading to discuss it in the abstract.