The End of Government
The Era of Lawlessness
The Rule of Law in Crisis
As mentioned in a previous chapter, in a democracy, we are all kings and queens. Individuals have the moral right to protect themselves from a tyrannical ruler. However, it is almost always better to give in. For the sake of an orderly community, it is sometimes necessary for a single policy to apply to all. While there is no reason to expect all to dress the same or eat the same, it would make no sense to allow everyone to drive on whichever side of the road they choose. Likewise, a country cannot both be at war and not at war with another. In the real world, we cannot expect to always have our way.
Conflict is unavoidable, but there are institutions that exist to mediate disputes, such as federalism, separation of powers, trials, and more. Unfortunately, the same people pushing for government to control ever more of our lives, thereby giving us more to fight about, also push to erode the rule of law.
It is bad enough to feel like a slave to a rule one believes unjust. It is much worse to not even know what the rules are or how they will be applied. At least with a consistent tyrant one can follow the rules and stay out of trouble. This is impossible if the tyrant is also arbitrary and unpredictable. With laws that are merely unjust, it is usually better to endure. When the rules are incoherent or continually change, it is usually better to revolt. There’s nothing left to lose! This is exactly the situation that now exists in the United States.
The Importance Of Federalism:
Federalism is important. Federalism is a collection of several compromises that keep the peace. It saddens me that these days it seems so poorly understood and so little valued. Departing from the principles of states’ rights and local control contributes more than many realize to the growing level of incivility in our political discourse.
Personalization versus strength: Small states with a small number of people and a small number of representatives are able to maintain a certain level of personal connection, making people feel they are heard and are part of the process. However, smaller states are also weaker and more vulnerable to blockade or invasion. Large states are better able to defend themselves and project power, but at the same time they lose the personal touch. Citizens feel that they are dictated to by a distant center of power that neither sees nor hears them. Federalism represents a compromise between these two extremes. Under a federal system, states remain small, but band together for mutual protection. State representatives look out for the needs of their constituents, and private citizens need not petition the central government directly. It’s a win-win. These days the states are largely unimportant. They are overruled by the feds in many ways, information on state politics is relatively hard to come by, and the average person prefers to settle all issues nationally anyways. It’s a recipe for disaster.
Enlightenment versus majority: Those who are better educated and have the time to carefully study an issue are better able to make decisions for themselves and others. However, the interests of the elite are not always aligned with the interests of the majority. People generally know their own needs and problems best. However, when it comes to making decisions for the whole country, including many with different problems than their own, they are fickle and easily manipulated by clever rhetoric from conniving politicians. Federalism represents a compromise between these two extremes. By requiring that all bills pass two houses – one directly representing the people, and one selected by those working in the state governments – it simultaneously prevents the elites from forming an oligarchy and the masses from perpetuating mob rule. Requiring bills to be signed into law by an executive elected by a combination of the two paradigms through the electoral college adds even more protection. It’s a win-win. Unfortunately, the seventeenth amendment changed all that, causing senators to be directly elected by the people, opening them up to all the lobbyists and campaign contribution corruption that goes with it. Today, there is a huge push to end the electoral college too, sending us even closer to direct democracy. It’s a recipe for disaster.
Rogue States versus The Leviathan: Individual states can abuse their own people and directly or indirectly cause trouble for other states. It does the people no good to have a democratically-elected federal government if it is too weak to intervene when state governments become dictatorial. On the other hand, granting the federal government the power to meddle in the affairs of individual states could backfire if it becomes dictatorial itself. It does the people no good to have democratically-elected state governments if the federal government is too strong to be resisted. Federalism represents a compromise between these two extremes. The feds are limited by the constitution to only those powers it is explicitly granted, while the states are allowed to do anything except those few things explicitly forbidden. It’s a win-win. Unfortunately, in modern America, the federal government often intervenes when it shouldn’t and doesn’t intervene when it should. We live in an absurd, upside-down world where the feds set a minimum wage for the citizens of all states, yet does nothing to protect residents of certain municipalities from gun regulations so demanding that the second amendment has no meaning.
State versus State: The most obvious benefit of federalism is that it allows those in each community to rule themselves as they see fit instead of being burdened with a one-size-fits-all system. Different states can have different climates, topographies, minerals, industries, modes of transportation, methods of commerce, languages, and cultural values. Under a federal system, each can tweak their regulations to suit their own citizens without affecting others. They can choose to have a property tax, a sales tax, an income tax, or all three, or none. One state can require schools to teach sex ed and another state can leave it up to the parents. One state can spend billions on scientific research to benefit its citizens and another can spend very little and keep taxes low to benefit its citizens. As a bonus, different states can test out different ways of doing things on the small scale, seeing what works and what doesn’t work, before society takes the big risk of testing new policies on the entire country. As another bonus, competition between states to attract people, businesses, and investments should keep the business environment healthy everywhere. Federally imposed standards produce stagnation. It’s a win-win, but this too is under attack.
Federalism and Civility: Federalism is a must to keep the peace in a country as large and diverse as the United States. Unfortunately, it has been under attack for a long time. The federal income tax brought the problems that come with it into every state – including those that prefer to raise revenue through other forms of taxation. By dealing with a national tax agency, individual citizens felt like powerless prawns in the jaws of the leviathan. With more money in the hands of the feds and less in the pockets of citizens for them to fund their state governments with, the feds then began giving money back to the states to use on highways and schools – but those funds came with strings attached. States accepting the money had to pass certain standards into law or else risk losing it. Representatives of each state had to fight in congress for grant money that was taken from their citizens in the first place. Politicians soon began to run on promises to get the feds to spend in their districts. Interest groups lobbied the politicians for special favors. The end results were increased spending, increased corruption, increased competition, and increased strife.
Problems are almost always best handled locally. If you can’t solve a problem yourself, get help from your neighbors. Only when it is too much for the private sector should you then take it to the municipal government. Only when it is too much for the municipal government should you then take it to the state government. Only when it is too much for the state government should you take it to the feds. I consider this policy nothing more than basic logic – the principle of default and Occam’s razor – yet there are those whose instinct is to immediately make everything a federal issue first – and sometimes they even suggest going to the UN!
Those who care about tolerance, civility, compromise, and peace should support federalism. Anyone who claims to care about civil discourse in politics but doesn’t support federalism is a hypocrite.
Why do we have separation of powers?
Keeping the various branches of the government separate and balanced is important. It is far more likely for one official to go bad than for all of them to go bad simultaneously. Putting too much power in the hands of too few individuals is an invitation to corruption. This is just the mathematics of probability. Unfortunately, it seems that few people appreciate this. Indeed, many seem eager for politicians to usurp the roles of others – both legally and illegally.
Separation of powers represents a compromise between anarchy and tyranny. When government is too weak, it cannot protect us as it should from those who would harm us. When government is too strong, it becomes a threat itself, sometimes harming us in the name of protecting others. Separation of powers gives us the best of both worlds. Allowing the government as a whole to be strong when it acts in unity, but divided such that the failure of any part to act prevents the whole from acting. For the most important and soluble problems, the various branches have no excuse not to act in agreement, but on issues of less importance and with less obvious solutions, there is room for debate. It’s a win-win.
There are those that prefer a weaker government than we have and those that prefer a stronger government than we have, but neither side respects the delicate balance of compromise that keeps the peace. They are always looking for ways to consolidate power or transfer it from one branch to the other. This also drives incivility.
Line-item vetoes are one example of this. Bills passed by the legislature are often the result of compromise. Nobody gets exactly what they want and votes must be “bought” with concessions of some kind. There are those that might vote for the bill in its whole form but not for fragments of it taken alone. For example, can you imagine voting to criminalize homelessness without also voting to fund more public housing? Giving the chief executive the ability to pick out some parts of the law and toss others gives his/her office power far in excess of the legislative branch.
Regulatory agencies are another example. Legislators are too busy and cannot be experts in every subject, so they cede their law-making power to bureaucrats, supposed experts in their fields, to make regulations for them. These agents report to the chief executive. Thus, the EPA, FDA, FCC, SEC, and others make rules for us that are never debated by our representatives.
The executive grows in other ways as well, both legal and illegal. Wiretaps without warrants, extended detention without charges, and military actions without declarations of war are examples. There may be good reasons for each of these things, but I wonder if the voters are aware of the tradeoff in risk they are taking. The more power the executive has, the more corruption it attracts, the greater the risk if there is corruption, the harder it becomes to reverse the trend, and the more important executive elections become. All of this drives incivility.
Why do we have the fourth amendment?
Having a functioning society often means compromises have to be made. No society can survive when criminals run amok with impunity and so police must have the ability to gather evidence. If property rights were considered absolute, then criminals would need only to refuse access to their belongings and it would be impossible for the government to prove their guilt. Only those who commit their crimes right out in public with everyone watching could ever be charged.
At the same time, no society can survive when the police have unlimited ability to search and seize whatever they want. There are those who say that the innocent have nothing to fear, but this is not true. Even without criminal charges, nobody wants to be repeatedly detained, harassed, and have their belongings disrupted on the chance that they might not be innocent. Nobody wants their property stolen indefinitely so it can be “withheld for evidence.” Even if doing nothing illegal, most people have information they would prefer stay private, such as their tastes in pornography, how much money they make, what medications they take, and what size diapers they wear. Police are not always good at keeping secrets, and one might not want everyone at church to know about their gambling addiction or that they enjoy an occasional cigar. Most people would not stand to have everything they do and say recorded and questioned. Even the most peaceful and law-abiding among us has, in a moment of anger, said things they wish they had worded more carefully.
I used to believe the average citizen would rather put up with a little crime so as not to live in a world where the police can search any house they want at any time on a whim. Republicans wouldn’t want the government maintaining a gun registry and Democrats wouldn’t want the government maintaining an abortion registry. This is something we should all be able to agree on. Unfortunately, we don’t.
As with so many issues, there are people on both sides. Some people are very worried about crime and don’t mind giving the police some leeway. Others are very worried about police harassment and want to make policing even harder than it already is.
The fourth amendment is a compromise. The way it is generally interpreted, it means that government agents can search or seize property for evidence – but only if they can give an articulable reason to believe a crime has been committed – that evidence exists in the place to be searched – and someone in an independent branch of government (usually a judge) must agree. In the real world there will always be times that innocent people appear suspicious, but these times will be rare. This is a good compromise.
Like so many others, this compromise is under attack. Cases have been thrown out even when no privacy was violated. I heard about a time when the police placed a tracker on a drug dealer’s car in order to show where he had been driving around in public, information that has no expectation of privacy. The only problem was that they had placed the tracker while the car was in his driveway. If they had done so anywhere else, they would have been in the clear, but the judge ruled that this amounted to trespass and tossed the case out.
The opposite is also true. In other cases where privacy was clearly violated, judges back the police up. In New York City, people were harassed simply for walking down the street in some neighborhoods. The Democrats have clouded the issue by bringing race into it, claiming that “stop and frisk” discriminates against young black men, and implying the police to be racist. This is an irrelevant distraction; the police should not be doing this in any neighborhood to anybody of any race! The policy is so far over the line that to continue it means the fourth amendment has no meaning at all whatsoever.
In the meantime, the NSA has been reading our emails and keeping track of who calls whom through the phone systems. What if I don’t want people to know which charities I’ve called? I’m sure the program can help us catch terrorists, but at what cost? When the government protects our rights by violating our other rights, nobody can legitimately say it is doing a good job. Yet, politicians in both major parties support the program. I can see good points on both sides of this debate and I know privacy rights are not absolute, but these measures were never voted on. They were erected in secret! We only found out from whistleblowers and leaks!
All sorts of agencies violate our rights. The IRS has been known to empty bank accounts and confiscate property on mere suspicion – without a warrant! More recently, the EPA publicly declared that it had the right to do the same thing!
Because there are people who feel strongly on both sides of the issue, it is important that our government follow the law as it currently exists. If, after public debate and elections, one side wins and the other side loses, and the legislature passes laws accordingly, it is important that the losing side not infiltrate the executive and judicial branches and violate the law. This only encourages the other side to do the same. When one’s vote is thwarted after being counted, there is no other option left but to overthrow the government. In that case, the ballot box and the courts have already failed. It is a recipe for anarchy.
Why bother with trials?
The way I hear some people talk, they seem to think that trials are just a fancy ritual to give criminals a sense of how serious their crimes are. Others seem to think trials exist to give criminals a chance to be heard so they can tell how horrible their lives have been and why they deserve some limited mercy. We aren’t barbarians, after all. Others seem to think that trials are something we grant citizens of the United States only because they have a constitutional right to one, but they have no idea why such a right was written into the constitution in the first place. Furthermore, they believe that non-citizens have no such right. Why do we bother with trials? THE WHOLE POINT OF A TRIAL IS TO DETERMINE IF THE ACCUSED IS ACTUALLY GUILTY!!!!!
Because any one of us might be accused out of malice, planted evidence, or mistaken identity, it is important that any evidence be made open to public review so that our government officials can be graded on the job they did. The trial is the setting where both sides can bring the totality of their evidence forward, question every conclusion of the other side, and cross-examine every witness.
It has happened more than once in American history that entire police departments have been found corrupt. For these reasons and more, the law requires that the police, district attorney, and judge or jury must all agree on the guilt of the accused before any punishment can be brought against them. The police alone cannot legally place someone in jail indefinitely without trial. This would be the very definition of tyranny.
When someone is placed in prison without trial, there is no way for the public to be sure they aren’t actually innocent. There is no way for the public to know that the one who actually committed the crime isn’t still out there, committing more crimes. The situation is scary not only because the innocent begin to fear the police, but because it lets loose the real criminals.
With these principles understood, it becomes clear that even non-citizens should have trials when accused and that all evidence must eventually be made public. Yet, there are people being held in Guantanamo Bay for years at a time without being formally charged and at least one of them was later released for lack of evidence.
I understand you can’t expect soldiers to mirandize people on the battlefield and that in war zones where the government has collapsed you simply do the best you can, but in countries that still have a functioning court system, not using it fundamentally undermines the rule of law. It is a recipe for tyranny.
Why not Double Jeopardy?
With most things in life there are tradeoffs. The criminal justice system is no exception. Ideally, the guilty would always be convicted and the innocent acquitted, but this is not realistic. Judges and juries are not omniscient, nor are they always free of prejudice. In the real world, there will always be some innocent convicted and some guilty acquitted.
Everyone has different values and I am sure many wish to rewrite our public policies, but for the time being, as a society we have settled on the principle of “better ten guilty men go free than one innocent soul be condemned.” This is one reason we have constitutional protections from double jeopardy. The defendant in a criminal case can keep appealing to higher courts without limit, but the prosecution only has one shot to do it right.
The downside to this policy is that a sloppy or incompetent prosecutor could lose and thereby allow a true criminal to go free. The police in their zealousness may act too quickly before they have gathered enough evidence. If new evidence shows up years later it will be too late. They will have already blown it. Corrupt police officers or district attorneys may even bring charges against local bosses prematurely on purpose, knowing that they will get away with it. It wouldn’t surprise me.
On the other hand, a ban on being tried twice for the same crime protects innocent people from politically-motivated harassment. Without such a ban, even those found innocent many years ago of trumped-up charges could never rest easy. Citizens speaking out against the government could be charged and arrested again and again and again for the same crime with no remedy. Furthermore, since even innocent people are sometimes convicted, the chance that eventually some jury might find them guilty greatly increases the more chances the state has to try them.
While I personally prefer keeping the constitutional ban on double jeopardy, I can see that pros and cons exist on both sides. I don’t know for sure what the best policy is. However, whatever policy we as a community choose, it needs to be clear and consistent. It would not do to have one policy on paper and another in practice. In school I was taught the constitution and told we all had double jeopardy protection. Since graduating, I find that there are so many exceptions to this that the protection is worth next-to-nothing.
Probably the least objectionable exception is the mistrial. When there are grounds to believe the trial was unfair in some way, a mistrial can be declared and a new trial ordered. This seems to make sense, but a mistrial can also be declared in cases wherein the jury was unable to reach a unanimous verdict. This is what happened to Bill Cosby. (56) Why should we expect unanimity? I think it’s a miracle as few as three people can agree on pizza toppings. Getting twelve people to agree on whether or not to put a fellow human being in jail for the next thirty years sounds impossible. It is a wonder it happens at all. Insisting on it happening, I believe, will only encourage jurors to concede to the majority so they can go home.
Another exception is that even after being found not guilty in a criminal court, one can still be charged with essentially the same infraction in civil court. The stakes are lower, but so is the burden of proof. O.J. Simpson was found not guilty of murdering his ex-wife, yet later he was sued by her family and the civil court found him to be “responsible” for her death. (57) Logically, there is no way to prove someone responsible for a death without describing in what way they are responsible. Unless the court was able to show negligence, and a different means of death than previously established, he could only have been “responsible” by committing murder – something the criminal court had already tried him for and declared him not guilty of.
Another exception I have heard is that even if found not guilty in federal court, one can still later be tried in state court (and vice versa). This tactic was proposed by those wanting to go after members of the Trump administration that he might pardon. (58) My understanding was that federal supremacy meant that a president could pardon anyone convicted at the state level and that federal judges could overturn state-level convictions on appeal. If someone has already been found not guilty by a court they could later appeal to anyways, haven’t they already won? Otherwise, we could try abortion doctors for murder in those states that never legalized abortion, but we don’t because we assume that they will appeal to the US Supreme Court.
Note: Just as I put the finishing touches on this book and prepared it for publication, it was been leaked that Roe versus Wade is being overturned. I can’t keep up with the changes!
Then there was the man who had fled the Dominican Republic claiming the police back home might torture him and asking for asylum. The first judge agreed and ruled that he could not be deported. Instead of accepting the loss and moving on to catch other illegal immigrants, the ICE then tried to have him extradited. (59) Fortunately, the second judge caught the trick and dismissed the motion – but what if it had gone the other way? How is it possible to legally extradite someone if you cannot legally deport them? That prosecutor needs to be in jail.
Then there was the case of the man pulled over for going UNDER the speed limit. The officer on duty thought it was suspicious. The judge disagreed, and the evidence of his intoxication was suppressed on fourth-amendment grounds. According to the way I was taught the constitution and the reasons behind writing it, that should have been the end of it. Instead, the prosecution appealed to a higher court and actually won, forcing the accused to appeal to the state supreme court to finally settle it. (60)
That any one of these exceptions exist is frightening, but all five taken together completely undermines the ban on trying people twice, reducing it to utter meaninglessness. Since none of these exceptions is spelled out in the constitution, it would not be unreasonable for one to believe the prohibition of double jeopardy absolute. It would not be unreasonable for one to think our justice system fundamentally lawless and unfair when they do hear of such exceptions. If charged again with the same crime, it would not be unreasonable for the accused – whether guilty or innocent – to refuse to cooperate, and be willing to use lethal force to defend themselves against what they (rightly) see as nothing more than a gang of criminals running a pretend court. Since what happens to one of us could happen to others, it would not be unreasonable for the accused to gain millions of supporters willing to defend them. When the government doesn’t even follow its own rules, it is a recipe for revolution.
How Law Works:
Other actions explicitly unconstitutional include bills of attainder and ex post facto laws. However, these would still be illegal even if it were not spelled out in the constitution or even if they were made explicitly legal because of what the nature of law is and how logic works.
Ruling for or against a particular person or institution is an inherently judicial act. If keeping within the spirit of separation of powers, legislatures cannot do this. Laws are by definition that which apply to everybody equally. Thus, bills of attainder are unenforceable.
Equally so are ex post facto laws – not because the constitution says so – but because of logic. You can’t try someone for a crime that isn’t a crime and for the same reason you can’t try someone for a crime that wasn’t a crime at the time it was committed. Why? Because it wasn’t a crime. You can only try people for specific, named crimes. It really is that simple. No further reasoning is necessary.
Besides, if this were to happen, citizens would begin to worry if perfectly legal things they were doing today might get them into trouble decades from now. Nobody would be safe, not even those in government when the other party sweeps into power in the next election cycle.
However, governments have in the past violated the principles underlying both of these provisions. In the United States and Europe, the leaders have at times enacted retroactive taxation, taxing past earnings differently than was the tax law at the time. (61) Citizens had already made decisions of how to structure their assets based on the laws at the time and not on the unknowable future. This is nothing other than fraud and theft.
Furthermore, in Texas, governor at the time Rick Perry was annoyed by some officer under him and acted within his authority to eliminate the office she was an officer of. He was immediately charged with a crime, but I was unable to find out what the alleged crime was. (62) They must have written something down for the suit documents, but what? How can one be charged with a crime for acting within one’s authority? How can one be charged with something that isn’t a crime?
There is No Equality Under the Law:
Equality under the law is a myth. In spite of all the talk about judicial mistakes creating bad precedent that will have to be followed, judges actually break precedent all the time. There is no consistency.
Implied laws: Several years ago, it came to my attention that there was no law that mandates that people pay their federal income tax. The Brown family in New Hampshire attempted to get away without paying and the courts ruled against them, claiming that the tax code itself that congress passes every year is the mandate. The government argued that it was an implied law, since the tax code contains within it how much people owe based on taxable income. (63) The Browns disagreed and refused to pay, so the FBI sieged their house. (64)
On a related note, there were some people who refused to show their driver’s license to an officer that had pulled them over, claiming it was a violation of the fourth amendment. The courts ruled that since the person was driving a vehicle at the time, which unlike walking is a state-regulated activity requiring a license, any officer could, if he wished, inspect to make sure the driver was licensed. The licensing requirement implied it. (65)
I suppose all that makes sense, but then by the same reasoning, shouldn’t we have to show our IDs to vote? After all, the law says that only American citizens who have reached eighteen years of age and reside only in the district they are voting in and nowhere else can vote. Doesn’t this imply that one has to show proof of age, address, and nationality? Of course it does! My entire life I have thought it terrifically strange that we are not required to show IDs. If we have to show IDs for little things such as buying cigarettes, opening a bank account, or staying in a hotel, shouldn’t we need to prove who we are before making decisions that could affect the whole country? Why is it that several states had to pass laws making this explicit?
This is ridiculous. Either every law must be explicit, meaning there is no way to make us pay our taxes or show our licenses, or else the law can be implicit, meaning anyone in any state refusing to show IDs to vote could be denied a ballot. The ruling class tries to have it both ways, the will of the people be damned.
Also, by the same reasoning, shouldn’t presidential candidates be required to provide a birth certificate? The constitution requires that the president be at least thirty-five and be a natural-born citizen. Doesn’t this imply that in order to be placed on the ballot, a candidate must provide some proof of age and national origin? Of course it does!
All this nonsense about Barack Obama’s birth records would never have happened if he had just submitted them in the first place like he was supposed to. That there is no law making this explicit shouldn’t matter because there is no law saying you have to pay your taxes either, but that won’t stop the IRS from coming after you.
Then there are the cases of implied immunity. I read in the newspaper about a twenty-five year old man in Rhode Island who had sexual relations with his seventeen year old girlfriend and filmed it. Since this was above the age-of-consent in Rhode Island (according to the author of the article), the police could not charge him with statutory rape, but they did charge him with possession of child pornography. (66) This is absurd! If the girlfriend is considered by law to be adult enough for actual physical sex, she is certainly adult enough to star in a film. Is she a minor or not? How is it that merely being in possession of a tape of a minor makes you a criminal, but being the one in the video actually having sex with the minor is not? Doesn’t the age-of-consent imply that filming is also legal? Of course it does! I don’t know whether any of these activities should be illegal or not or what the age-of-consent should be; I am only insisting on consistency. You can’t have it both ways!
Saving us from ourselves: Judges break precedent in other ways as well. In school, I was taught that the founders had put checks and balances into the constitution to ensure no one part of the government acting alone could become tyrannical. The legislative branch was able to impeach executives or judges. The president could veto laws he deemed harmful. The supreme court could strike down any law or executive action they deemed unconstitutional. The purpose of having these checks and balances, rather than simply letting the majority rule, was because the founders knew the dangers of pure democracy and wanted to limit it. The purpose of a republic is to protect the people from their own bad voting behavior – or so I was taught.
Fast forward to the Obama years when the constitutionality of the Affordable Care Act was challenged. Justice Roberts cast the tie-breaking vote, arguing that the law’s mandate to purchase health insurance could be considered a tax and therefore within the government’s legitimate constitutional power. The issue was clouded by the fact that Obama had promised not to raise taxes and later claimed the measure not to be a tax, allowing the Republicans to paint it as a punitive fine on mere existence and raising questions of how to interpret and apply the law. Roberts claimed it was not the court’s role to protect the voters from their own bad voting behavior, but rather to make the extra effort to find a way to justify the constitutionality of any law, and strike down only those laws totally without constitutional merit. (67)
Fast forward again to the later Obama years when the constitutionality of the Affordable Care Act was challenged yet again. This time the issue was whether the feds could expand the public exchanges to cover those who would have qualified for Medicaid if only their states had raised the income limits like they were supposed to. The law as passed gave no such explicit authorization. Justice Roberts came to the rescue again, arguing that the lawmakers could not possibly have intended not to cover these people and read into the words more than was there. In other words, he saved the people from their own bad voting behavior. (68)
Which is it, Roberts? Is your job to save us from ourselves or not? From where I stand, it looks as if the ruling class will use whatever argument they have to in order to get their way, consistency be damned. This is nothing short of lawlessness.
Furthermore, given that in theory any non-activity could be taxed if “not getting insurance” can be taxed, the existence of the ACA implies an unlimited government that can mandate anything so long as it is structured as a tax. Yet at the same time, the Constitution and its contextual documents (such as the Declaration of Independence and the Federalist Papers) imply a limited government. How can the ACA and the Constitution be compatible?
Ambiguous laws: Some laws are so ambiguous that they are unenforceable. Yet they remain on the books. This is dangerous because leaving them there allows some future zealous prosecutor to attempt to enforce them. It leaves regular, otherwise law-abiding citizens never knowing where they stand.
On more than one road I have encountered a sign telling me “Keep right except to pass.” If I pass one slowpoke, and see another a quarter-mile away, can I stay in the left lane while I catch up with the second? How far apart can they be? If the right side of the road is beset with on-ramps and off-ramps, with traffic leaving and entering the lane, can I pass them all by staying in the left lane? How far can I drive without seeing a ramp before I have to pull over? I have been in situations like this wherein traffic was heavy enough that constantly changing lanes would have been very tiresome and unnecessarily risky, since every time I change lanes there is a chance I have missed seeing someone. I remained in the left lane for miles and miles as I passed an endless parade of slowpokes, even while speed demons zigzagged between us to pass me on the right – and of course I have also seen signs telling slower traffic to keep right.
I’ve also been in situations wherein I began to pass someone and they sped up so that I had no need to pass them, but I could no longer return to the right because we were then too close and it would not have been safe to tailgate them (unless I slowed down much more than I wanted to). How do such signs even apply in those conditions? Why make signs with no meaning?
More recently, some cities in west-coast states passed ordinances to discourage the use of plastic straws. The rules do not apply to drive-throughs or restaurants with straw dispensers in the lobby for customers to serve themselves. It only stipulates that servers not hand out straws automatically, doing so only when asked. Punishments include jailtime for first-time offenders. The problem with this law (among others) is that it could always happen that a server holds up a straw, a customer grunts, and this could be misinterpreted as confirmation that they want one. There is always a way to talk your way out of conviction, and so there is no way to enforce the law.
What is the point of rules if not to ensure a change of behavior? Do they just want to keep us on edge for no reason?
Who is in charge?
Presidential elections in the United States are complicated. People vote. The votes are counted up separately in each state and the state legislators select electors based on the tallies – or the legislators can set election laws to allow the executive branch to run the election with the secretary of state certifying the electors. Then the electors vote. Then the congress and the senate vote to accept or reject the electors. Then the Chief Justice gives the president-elect the oath of office and the deed is done. That’s a lot of actors. Who actually has the authority to choose?
Could the Chief Justice simply swear in someone else who didn’t even run and is supported by no one else? Would that be legally binding? If so, why bother with congress? Let the judge choose.
Could the congress and senate simply choose to accept an alternate slate of electors over the objections of the state legislators? Would that be legally binding? If so, why bother with assigning electors in the first place? Let congress choose.
Are electors really allowed to vote for whomever they want against the will of the state legislators? If so, why bother with anything else? Let the electors choose.
Are state legislators really allowed to select whichever electors they want against the will of the voters? If so, why bother holding an election at all?
While fraud is hard to prove, the basic facts of the 2020 election were that in several states a cabal of state employees ran an illegal election with unverifiable ballots and selected electors over the objections of the state legislators. Then congress voted to accept these electors and not the ones of the other party even though they knew the election was disputed – but did they even have this authority? Who actually has the authority to settle election disputes? The courts?
Trump seemed to think that the Vice President had the power to choose which slate of electors to present to congress, but Pence apparently disagreed. Who was right? How can there be disagreement? Why aren’t these things more clear?
In my probably oversimplistic way of looking at it, I saw no reason for Trump to concede. Legally speaking, he had won. According to the state legislators (and almost certainly the majority of voters), he was the constitutional winner. (69) Everything that happened after that was formality. Yet, I am now told even by people who believe in the fraud allegations and supported Trump that it is congress that decides these things and that everything before that is formality. Which model is right? Why aren’t these things more clear?
Furthermore, in 2020 it seems that the vote was made under duress. A violent mob invaded the Capitol as debate was occurring over whether to accept the electors they were presented. (70) It is likely that congress felt threatened into not continuing the debate, and simply voting to accept. It was a coup. Since Trump had taken an oath of office to “protect the constitution from all enemies, foreign and domestic,” I believe it was a violation of his oath to concede. It meant conceding to the mob. If Trump had done his job, he would have declared martial law and refused to step down. Instead, he left his post when there was no compelling legal reason to do so.
I’m not saying for certain that Trump did wrong. As President, he had access to information I don’t – including classified secrets. Maybe he knew the military and Secret Service would not support him. Maybe he somehow knew that the Democrats were ready to start a war and that his supporters would back down if he told them to. At the time, given what I was hearing, I would have guessed his supporters were ready to start a war with or without his blessing and that the Democrats would back down if shown a unified front. In any case, the constitution is not clear enough. This needs to be fixed before the next election or else we will certainly have a war.
The problem all this raises is one of authority. If I don’t know who has the authority to choose the president, I cannot tell who is president. Who is president? If a bill is passed and is mailed to Mar-a-Lago and signed by Trump, is it actually law? What if Biden signs the bill? Must I obey? Will the executive branch enforce it? Will the judicial branch back them up? I need to know.
We live in a land of confusion and unpredictability. Nobody follows the rules, not private institutions, and not the government. Things happen that should not and other things don’t happen that should. Edicts are made by people without authority to make them and private citizens have no idea whether they should obey.
In East Providence, Rhode Island, there was a referendum put to the voters to change the terms of the city council from two years to four. It passed, but there was some confusion about whether they needed approval from the state for the change or whether their home rule charter exempted them from this. Those in charge of printing the ballots continued to use the two-year forms. When one politician suggested they all serve four-year terms anyways, his opponents cried foul. (71)
What happens if another election is held and this politician loses his seat, but refuses to leave on the grounds that it is an illegally-held election used by his opponents to get rid of him? What happens if the old politician whose term is not yet up and the new politician elected to serve the second half of his term both show up to take the same seat? What happens if an ordinance is passed with the tie-breaking vote coming from that seat? Is the ordinance legal or not? How should the courts apply it? Should the police enforce it? If I happen to pass through the city on one of my road trips and violate the ordinance (unwittingly, I’m sure), am I under any obligation to cooperate with the police and courts to enforce an illegal non-ordinance that was never duly passed? How does this happen?
In Warwick, Rhode Island, was another case of confusion. It was found that firefighters were receiving more sick days in their contracts than approved by the city. (72) How is that possible? Who was signing the checks? If someone else claimed to have the city’s authority, how was it that this person was able to convince the banks to transfer the funds? Did the city approve it or not?
In Hawaii, a judge declared that President Trump’s ban on travel into the US from select, terrorism-prone countries without good systems of verifying identity was unconstitutional. (73) A judge in Hawaii, with power only over his jurisdiction, not over the whole country, and certainly not over the travel plans of individuals in other countries, was telling the president that he had no right to keep them from coming in. Rather than ignore this lunatic – which is what happens to me when I try to tell the president how to do his job – Trump immediately complied with the judge’s orders pending appeal to the Supreme Court. If I had issued the same kind of order, would Trump have listened to me? What gives a Hawaiian judge any greater authority than I have over what happens in foreign countries? What gives a Hawaiian judge any greater authority than the president? Who’s really in charge here?
Other countries are even worse. In Greece, it is impossible to buy or sell land. There is no central land registry to track who owns what. To buy land, you must take it on faith that the seller actually owns it. Often, someone with a rival claim will come out of the woodwork at the last minute, halting everything. Also, even when all taxes and fees are paid off, often some additional official will pop up demanding more in order to gain the final approval. There is no way to know the full extent of fees ahead of time and they are arbitrarily imposed. (74) India, China, and Russia have similar problems, with bribery simply being the norm of how statecraft is accomplished. (75)
How can authority act when it is not clear who has authority? Can I claim to be an authority? Will people actually pay me to stamp their permits? Could I get away with that? I am so confused right now. It is a recipe for anarchy.
Why not give Legal Advice?
The executive branch is the one that enforces the law, so they had damn well better know what the law is, what it means, and how to apply it. Otherwise, they aren’t doing their jobs.
The judicial branch is the one that applies the law, so they also had damn well better know what the law is, what it means, and how to apply it. Otherwise, they aren’t doing their jobs.
The legislative branch is the one that wrote and passed the law in the first place, so they would definitely know what it means. Even if the law in question is so old that all the legislators responsible for it have died, the legislative branch should still maintain some sort of office that keeps track of these things. Otherwise, the new legislators might pass something in contradiction to previous legislation.
So why is it that officials in both the executive and judicial branches tell me they can’t give legal advice? Is it fair to punish me for doing something wrong when no one will explain ahead of time what is expected of me? I shouldn’t have to rely on a lawyer. Doing so perpetuates a system that effectively sells justice for profit and lawyers are often wrong in their predictions anyways. In every high-profile case, the lawyers on one side win and the lawyers on the other side lose. If the judge is the one making the decision, it is my right to know ahead of time how he/she applies the law.
If you want something from someone, it is your responsibility to teach them how you want it done, not theirs. If the government expects us to follow the law, it is their responsibility to be able to explain its meaning and how it applies to different situations. Otherwise, we have to bumble through life hoping we have done it right or that we never get caught.
On at least two occasions I had wanted clarification on how the government would view my actions before I did them. I did not get it. In one of those cases, it came back to bite me. Why should I tolerate this?
The Constitution Is Not a Liquid!
I was taught in school that the American Constitution is a “living document,” meaning that it could be amended, though this was very difficult to do. When I was much older, I heard others use the term “living document” in a different way. They meant that the words could be reinterpreted in a modern context with new meaning that the founders never intended. The reasoning in both cases was that since the founders could not have known of future social conditions, we should not be held hostage by outdated thinking.
This is certainly valid reasoning, but there are good reasons to force our leaders to amend the constitution if they want something changed rather than just deem it changed because the culture and language have evolved.
Reason One: Language never evolves as a whole, but rather different segments of the population learn at different rates. Changing things just because one party’s base has changed will necessarily confuse and alienate the other party. In the case of the constitution, its perceived meaning actually changes very slowly because it is still taught what the original meaning was.
Reason Two: In any society of more than two people, there are always factions that will disagree on the direction to take the country. These disagreements are settled through elections. Circumventing the voting process by simply reinterpreting the words of the law without repealing and rewriting it is a usurping of power of the worst kind. When one faction breaks the law it encourages the other to do the same. The end result is widespread disobedience and civil war.
Reason Three: While it is technically true that the constitution exists to place limits on government’s power, this misses the deeper truth that without the constitution the government has no power at all. Without a formal, common agreement by all parties, the default is anarchy. It is the federal constitution that spells out what the federal government can do, such as collecting taxes, raising armies, and printing money. Without such an agreement anyone and everyone could claim a monopoly on such activities.
Reason Four: Because the constitution is the standard by which all other laws are measured, it necessarily must be harder to change than the average law. Requiring two-thirds of congress and three-quarters of the states (or vice versa) to amend provides the required difficulty. Individual judges or executives (sometimes elected by pluralities of less than fifty percent) reinterpreting the constitution to serve them does not. Otherwise, the slimmest of majorities could simply rewrite the constitution to allow any law they want to pass or shift decision-making power to whomever they choose, and this would be literally indistinguishable from not having a constitution. It is a recipe for anarchy.
Arbitrary rule hurts real people!
In an ideal world, legality, morality, and public opinion would perfectly coincide. Unfortunately, we live in a world wherein we cannot always agree on what is good and what is evil. For the sake of a peaceful, functioning society, we tolerate some evil. We have erected elaborate means of settling disputes between us, such as property rights, civil and criminal courts, and elections. When one faction wants one thing and a second faction wants the opposite, the dispute is settled by first allowing everyone to voice their opinions, then voting for candidates, and then the winning candidates vote to pass laws that will apply to everyone equally, including members of the government itself. This is the system that people have agreed to in order to avoid civil wars. They tolerate unethical behavior so long as it is lawful. They obey laws they do not believe in so long as they were duly passed.
Tolerating legal evil is already such a high demand that asking someone to tolerate illegal evil is way too much to ask. This is why it is of utmost importance that we follow the established procedure to settle disputes. When speech is suppressed, ballots are counterfeited, laws are deemed passed that were not in reality passed by those with the authority to do so, and when those in the executive and judicial branches twist the obvious meaning of the law to fit their abusive actions rather than fitting their actions to match the obvious meaning of the law, it is simply civil war by another name. The only correct response to arbitrary rule is disobedience – and should the government back up its rulings with force, the only correct response is greater force. It is a recipe for war.
Some people think that we should close the border and keep foreigners out of the country – and they have some legitimate concerns. Other people think that all people have the God-given right to travel where we please – and they also have some legitimate concerns. In order to settle conflict, as a society we have adopted a single, consistent policy known to all: A certain number of foreigners are let in and any who sneak in without going through the official channels are deported – except for Cubans. Rightly or wrongly, it is the law that Cubans caught at sea are sent home, but those making it to American soil can stay. It doesn’t make sense to me either, but this is the compromise we all must follow.
Unfortunately, those in government do not follow their own rules. A family of fleeing Cubans once settled on a bridge connecting the Florida Keys. The only problem was that it was an old bridge no longer used and the ends had been broken off so it no longer touched natural land. The government agents that caught them decided that this bridge did not count as American soil and sent the Cubans back. (76) This is insane! If the bridge is truly not considered American soil, would it then be okay for the Cubans to set up a military base there? Could the Russians do it? Would we allow that? Could I claim it myself for the new kingdom of Danitopia?
In the case of the Cubans, they were merely sent back where they came from so no great harm was done, but government has also been known to completely destroy people’s lives and businesses and put American citizens in jail who have committed no crimes:
I mentioned before the bakers from Oregon who refused to decorate a cake for a gay “wedding.” They did not refuse service to a particular type of person, but rather refused to do a particular type of service. Demanding a wedding cake decorator decorate a non-wedding cake is a bit like demanding an office supply store wash your car. That isn’t the business they are in.
If it were me, I would probably just do it for the money, reasoning that nobody is actually being harmed by the message, just as I would if someone wanted a swastika, hammer-and-sickle, or Hillary Clinton’s face, but I would still be nervous of someone actually seeing me do it, not knowing how I was going to explain myself, and I would wonder whether the whole thing was a Candid Camera prank.
For reasons still inexplicable to me, the courts decided that this was discrimination in violation of discrimination laws, and decided that mere laws had more authority than the free religion rights enshrined in the constitution – the supreme law of the land that overrules all other laws. The ruling was so arbitrary, and so ridiculous, that I can’t understand why anybody in the executive branch would have gone along with such nonsense. These people were fined hundreds of thousands of dollars and had their business shut down for nothing more than the “crime” of not decorating a cake! If the word evil has any meaning at all in the English language, it applies perfectly to the government of Oregon. Yet they get away with it. I have yet to hear of a wave of impeachments and forced resignations in the northwest, so I am still on my toes. I am worried about travelling there.
Some people think that it is helpful to have state-registered marriages, and the reasons they have for this simply to not pertain to homosexual unions – whatever they might be called. Other people think that homosexual unions should be included along with traditional marriages in any regulation the state passes. Rightly or wrongly, each state has set its own laws on the matter. Some legalized gay marriage, some did not. Then the Supreme Court declared that all such laws discriminating between gay marriage and traditional marriage were unconstitutional. The court, of course, has no authority to amend the constitution, nor can they repeal a law – only the legislature can do that. However, the court can and did make the old laws unenforceable. County clerks are now free to break the laws by issuing marriage licenses to gay and lesbian couples with impunity. Prosecutors will not bother trying a case they know will simply be overturned by a higher court on appeal (unless of course they are charging Trump administration members with crimes they have already been pardoned for). SMH
This is exactly how the system is supposed to work to keep us all safe: In order for sanctions to be brought against anyone, all three branches of government must agree. The legislature must agree that a certain behavior being committed should be outlawed. The executive must agree that a particular individual is guilty of committing a behavior that has been outlawed. Then the judicial must independently look at the evidence, reach the same conclusion, and decide on the level of punishment (within the bounds set by law). Should any one of the three branches balk, the government is impotent.
This is not how it worked in the case of a county clerk in Kentucky named Kim Davis. (77) Even though the supreme court ruling allowed her to break the marriage laws with impunity – issuing marriage licenses to any couple that wanted them – she continued to do the job she was elected to do by following Kentucky law anyways. While the court’s decision did not prevent her from breaking the law, it also could not compel her to break the law. The courts simply did not have the authority to rule against her; she wasn’t breaking any laws. That did not stop one federal judge from issuing her an order to break the law anyways. She rightly refused and was promptly jailed for contempt of court. She was jailed without trial for breaking a non-law that doesn’t exist! That the jailors acted on the obviously illegal orders of the judge is even more mind-boggling! Do they follow any order from anyone? Would they arrest Donald Trump or Barack Obama if I, SuperDan The Magnificent, self-proclaimed King of America, ordered them to? If I ever heard a judge say something so preposterous, I would have called the hospital, assuming they were having a mental breakdown or a stroke.
Many of my so-called friends and acquaintances were in favor of jailing her, thinking she was getting what she deserved for being “hateful.” I have no idea whether Ms. Davis is hateful or not, but hate isn’t a crime! If hate were a crime, the entire population of the country should be in jail. Everybody hates something.
I remember wondering at the time why nobody did anything to rescue her. The jailors never released her. The judge was not immediately overruled by a higher judge. No band of armed patriots showed up to bust her out. Instead, there was nothing more than sounds of protest and it took days to release her. I was disappointed and disgusted. How is it possible for something like this to happen to somebody in the United States of America?
I remember thinking at the time that something similar might one day happen to me. A crazy court might put me in jail for breaking a non-law that doesn’t exist or for failing to obey the illegal orders of a judge. My “friends” would all say I deserved it. Nobody would rescue me. I really would not do well in jail – not even for just a few days. I expect I might try to kill a guard and escape. What would my peaceful options be to resolve this sort of injustice? There are none. The government is asking for violence.
Anyone who has watched the news at all in the past twenty years is well-aware that the government doesn’t follow its own rules. The rule of law is a mere façade covering a web of corruption and lies. In spite of still having elections, we live under a system at times no less arbitrary than the monarchies of old Europe. Arbitrary rule creates dangerous people. When otherwise peaceful, hard-working, law-abiding, patriotic citizens are repeatedly abused for no reason, it can make them crazy. When their usual avenues of maintaining a living are cut off and they live in constant fear of prosecution or litigation, they will no longer know how they are expected to behave. This only makes them harder to direct. A government that actually wants to be obeyed will be careful to be consistent, predictable, and understandable. The way those running the United States act, I can only conclude that they want anarchy. It is a recipe for war.
Conflict is unavoidable, but there are institutions that exist to mediate disputes, such as federalism, separation of powers, trials, and more. Unfortunately, the same people pushing for government to control ever more of our lives, thereby giving us more to fight about, also push to erode the rule of law.
It is bad enough to feel like a slave to a rule one believes unjust. It is much worse to not even know what the rules are or how they will be applied. At least with a consistent tyrant one can follow the rules and stay out of trouble. This is impossible if the tyrant is also arbitrary and unpredictable. With laws that are merely unjust, it is usually better to endure. When the rules are incoherent or continually change, it is usually better to revolt. There’s nothing left to lose! This is exactly the situation that now exists in the United States.
The Importance Of Federalism:
Federalism is important. Federalism is a collection of several compromises that keep the peace. It saddens me that these days it seems so poorly understood and so little valued. Departing from the principles of states’ rights and local control contributes more than many realize to the growing level of incivility in our political discourse.
Personalization versus strength: Small states with a small number of people and a small number of representatives are able to maintain a certain level of personal connection, making people feel they are heard and are part of the process. However, smaller states are also weaker and more vulnerable to blockade or invasion. Large states are better able to defend themselves and project power, but at the same time they lose the personal touch. Citizens feel that they are dictated to by a distant center of power that neither sees nor hears them. Federalism represents a compromise between these two extremes. Under a federal system, states remain small, but band together for mutual protection. State representatives look out for the needs of their constituents, and private citizens need not petition the central government directly. It’s a win-win. These days the states are largely unimportant. They are overruled by the feds in many ways, information on state politics is relatively hard to come by, and the average person prefers to settle all issues nationally anyways. It’s a recipe for disaster.
Enlightenment versus majority: Those who are better educated and have the time to carefully study an issue are better able to make decisions for themselves and others. However, the interests of the elite are not always aligned with the interests of the majority. People generally know their own needs and problems best. However, when it comes to making decisions for the whole country, including many with different problems than their own, they are fickle and easily manipulated by clever rhetoric from conniving politicians. Federalism represents a compromise between these two extremes. By requiring that all bills pass two houses – one directly representing the people, and one selected by those working in the state governments – it simultaneously prevents the elites from forming an oligarchy and the masses from perpetuating mob rule. Requiring bills to be signed into law by an executive elected by a combination of the two paradigms through the electoral college adds even more protection. It’s a win-win. Unfortunately, the seventeenth amendment changed all that, causing senators to be directly elected by the people, opening them up to all the lobbyists and campaign contribution corruption that goes with it. Today, there is a huge push to end the electoral college too, sending us even closer to direct democracy. It’s a recipe for disaster.
Rogue States versus The Leviathan: Individual states can abuse their own people and directly or indirectly cause trouble for other states. It does the people no good to have a democratically-elected federal government if it is too weak to intervene when state governments become dictatorial. On the other hand, granting the federal government the power to meddle in the affairs of individual states could backfire if it becomes dictatorial itself. It does the people no good to have democratically-elected state governments if the federal government is too strong to be resisted. Federalism represents a compromise between these two extremes. The feds are limited by the constitution to only those powers it is explicitly granted, while the states are allowed to do anything except those few things explicitly forbidden. It’s a win-win. Unfortunately, in modern America, the federal government often intervenes when it shouldn’t and doesn’t intervene when it should. We live in an absurd, upside-down world where the feds set a minimum wage for the citizens of all states, yet does nothing to protect residents of certain municipalities from gun regulations so demanding that the second amendment has no meaning.
State versus State: The most obvious benefit of federalism is that it allows those in each community to rule themselves as they see fit instead of being burdened with a one-size-fits-all system. Different states can have different climates, topographies, minerals, industries, modes of transportation, methods of commerce, languages, and cultural values. Under a federal system, each can tweak their regulations to suit their own citizens without affecting others. They can choose to have a property tax, a sales tax, an income tax, or all three, or none. One state can require schools to teach sex ed and another state can leave it up to the parents. One state can spend billions on scientific research to benefit its citizens and another can spend very little and keep taxes low to benefit its citizens. As a bonus, different states can test out different ways of doing things on the small scale, seeing what works and what doesn’t work, before society takes the big risk of testing new policies on the entire country. As another bonus, competition between states to attract people, businesses, and investments should keep the business environment healthy everywhere. Federally imposed standards produce stagnation. It’s a win-win, but this too is under attack.
Federalism and Civility: Federalism is a must to keep the peace in a country as large and diverse as the United States. Unfortunately, it has been under attack for a long time. The federal income tax brought the problems that come with it into every state – including those that prefer to raise revenue through other forms of taxation. By dealing with a national tax agency, individual citizens felt like powerless prawns in the jaws of the leviathan. With more money in the hands of the feds and less in the pockets of citizens for them to fund their state governments with, the feds then began giving money back to the states to use on highways and schools – but those funds came with strings attached. States accepting the money had to pass certain standards into law or else risk losing it. Representatives of each state had to fight in congress for grant money that was taken from their citizens in the first place. Politicians soon began to run on promises to get the feds to spend in their districts. Interest groups lobbied the politicians for special favors. The end results were increased spending, increased corruption, increased competition, and increased strife.
Problems are almost always best handled locally. If you can’t solve a problem yourself, get help from your neighbors. Only when it is too much for the private sector should you then take it to the municipal government. Only when it is too much for the municipal government should you then take it to the state government. Only when it is too much for the state government should you take it to the feds. I consider this policy nothing more than basic logic – the principle of default and Occam’s razor – yet there are those whose instinct is to immediately make everything a federal issue first – and sometimes they even suggest going to the UN!
Those who care about tolerance, civility, compromise, and peace should support federalism. Anyone who claims to care about civil discourse in politics but doesn’t support federalism is a hypocrite.
Why do we have separation of powers?
Keeping the various branches of the government separate and balanced is important. It is far more likely for one official to go bad than for all of them to go bad simultaneously. Putting too much power in the hands of too few individuals is an invitation to corruption. This is just the mathematics of probability. Unfortunately, it seems that few people appreciate this. Indeed, many seem eager for politicians to usurp the roles of others – both legally and illegally.
Separation of powers represents a compromise between anarchy and tyranny. When government is too weak, it cannot protect us as it should from those who would harm us. When government is too strong, it becomes a threat itself, sometimes harming us in the name of protecting others. Separation of powers gives us the best of both worlds. Allowing the government as a whole to be strong when it acts in unity, but divided such that the failure of any part to act prevents the whole from acting. For the most important and soluble problems, the various branches have no excuse not to act in agreement, but on issues of less importance and with less obvious solutions, there is room for debate. It’s a win-win.
There are those that prefer a weaker government than we have and those that prefer a stronger government than we have, but neither side respects the delicate balance of compromise that keeps the peace. They are always looking for ways to consolidate power or transfer it from one branch to the other. This also drives incivility.
Line-item vetoes are one example of this. Bills passed by the legislature are often the result of compromise. Nobody gets exactly what they want and votes must be “bought” with concessions of some kind. There are those that might vote for the bill in its whole form but not for fragments of it taken alone. For example, can you imagine voting to criminalize homelessness without also voting to fund more public housing? Giving the chief executive the ability to pick out some parts of the law and toss others gives his/her office power far in excess of the legislative branch.
Regulatory agencies are another example. Legislators are too busy and cannot be experts in every subject, so they cede their law-making power to bureaucrats, supposed experts in their fields, to make regulations for them. These agents report to the chief executive. Thus, the EPA, FDA, FCC, SEC, and others make rules for us that are never debated by our representatives.
The executive grows in other ways as well, both legal and illegal. Wiretaps without warrants, extended detention without charges, and military actions without declarations of war are examples. There may be good reasons for each of these things, but I wonder if the voters are aware of the tradeoff in risk they are taking. The more power the executive has, the more corruption it attracts, the greater the risk if there is corruption, the harder it becomes to reverse the trend, and the more important executive elections become. All of this drives incivility.
Why do we have the fourth amendment?
Having a functioning society often means compromises have to be made. No society can survive when criminals run amok with impunity and so police must have the ability to gather evidence. If property rights were considered absolute, then criminals would need only to refuse access to their belongings and it would be impossible for the government to prove their guilt. Only those who commit their crimes right out in public with everyone watching could ever be charged.
At the same time, no society can survive when the police have unlimited ability to search and seize whatever they want. There are those who say that the innocent have nothing to fear, but this is not true. Even without criminal charges, nobody wants to be repeatedly detained, harassed, and have their belongings disrupted on the chance that they might not be innocent. Nobody wants their property stolen indefinitely so it can be “withheld for evidence.” Even if doing nothing illegal, most people have information they would prefer stay private, such as their tastes in pornography, how much money they make, what medications they take, and what size diapers they wear. Police are not always good at keeping secrets, and one might not want everyone at church to know about their gambling addiction or that they enjoy an occasional cigar. Most people would not stand to have everything they do and say recorded and questioned. Even the most peaceful and law-abiding among us has, in a moment of anger, said things they wish they had worded more carefully.
I used to believe the average citizen would rather put up with a little crime so as not to live in a world where the police can search any house they want at any time on a whim. Republicans wouldn’t want the government maintaining a gun registry and Democrats wouldn’t want the government maintaining an abortion registry. This is something we should all be able to agree on. Unfortunately, we don’t.
As with so many issues, there are people on both sides. Some people are very worried about crime and don’t mind giving the police some leeway. Others are very worried about police harassment and want to make policing even harder than it already is.
The fourth amendment is a compromise. The way it is generally interpreted, it means that government agents can search or seize property for evidence – but only if they can give an articulable reason to believe a crime has been committed – that evidence exists in the place to be searched – and someone in an independent branch of government (usually a judge) must agree. In the real world there will always be times that innocent people appear suspicious, but these times will be rare. This is a good compromise.
Like so many others, this compromise is under attack. Cases have been thrown out even when no privacy was violated. I heard about a time when the police placed a tracker on a drug dealer’s car in order to show where he had been driving around in public, information that has no expectation of privacy. The only problem was that they had placed the tracker while the car was in his driveway. If they had done so anywhere else, they would have been in the clear, but the judge ruled that this amounted to trespass and tossed the case out.
The opposite is also true. In other cases where privacy was clearly violated, judges back the police up. In New York City, people were harassed simply for walking down the street in some neighborhoods. The Democrats have clouded the issue by bringing race into it, claiming that “stop and frisk” discriminates against young black men, and implying the police to be racist. This is an irrelevant distraction; the police should not be doing this in any neighborhood to anybody of any race! The policy is so far over the line that to continue it means the fourth amendment has no meaning at all whatsoever.
In the meantime, the NSA has been reading our emails and keeping track of who calls whom through the phone systems. What if I don’t want people to know which charities I’ve called? I’m sure the program can help us catch terrorists, but at what cost? When the government protects our rights by violating our other rights, nobody can legitimately say it is doing a good job. Yet, politicians in both major parties support the program. I can see good points on both sides of this debate and I know privacy rights are not absolute, but these measures were never voted on. They were erected in secret! We only found out from whistleblowers and leaks!
All sorts of agencies violate our rights. The IRS has been known to empty bank accounts and confiscate property on mere suspicion – without a warrant! More recently, the EPA publicly declared that it had the right to do the same thing!
Because there are people who feel strongly on both sides of the issue, it is important that our government follow the law as it currently exists. If, after public debate and elections, one side wins and the other side loses, and the legislature passes laws accordingly, it is important that the losing side not infiltrate the executive and judicial branches and violate the law. This only encourages the other side to do the same. When one’s vote is thwarted after being counted, there is no other option left but to overthrow the government. In that case, the ballot box and the courts have already failed. It is a recipe for anarchy.
Why bother with trials?
The way I hear some people talk, they seem to think that trials are just a fancy ritual to give criminals a sense of how serious their crimes are. Others seem to think trials exist to give criminals a chance to be heard so they can tell how horrible their lives have been and why they deserve some limited mercy. We aren’t barbarians, after all. Others seem to think that trials are something we grant citizens of the United States only because they have a constitutional right to one, but they have no idea why such a right was written into the constitution in the first place. Furthermore, they believe that non-citizens have no such right. Why do we bother with trials? THE WHOLE POINT OF A TRIAL IS TO DETERMINE IF THE ACCUSED IS ACTUALLY GUILTY!!!!!
Because any one of us might be accused out of malice, planted evidence, or mistaken identity, it is important that any evidence be made open to public review so that our government officials can be graded on the job they did. The trial is the setting where both sides can bring the totality of their evidence forward, question every conclusion of the other side, and cross-examine every witness.
It has happened more than once in American history that entire police departments have been found corrupt. For these reasons and more, the law requires that the police, district attorney, and judge or jury must all agree on the guilt of the accused before any punishment can be brought against them. The police alone cannot legally place someone in jail indefinitely without trial. This would be the very definition of tyranny.
When someone is placed in prison without trial, there is no way for the public to be sure they aren’t actually innocent. There is no way for the public to know that the one who actually committed the crime isn’t still out there, committing more crimes. The situation is scary not only because the innocent begin to fear the police, but because it lets loose the real criminals.
With these principles understood, it becomes clear that even non-citizens should have trials when accused and that all evidence must eventually be made public. Yet, there are people being held in Guantanamo Bay for years at a time without being formally charged and at least one of them was later released for lack of evidence.
I understand you can’t expect soldiers to mirandize people on the battlefield and that in war zones where the government has collapsed you simply do the best you can, but in countries that still have a functioning court system, not using it fundamentally undermines the rule of law. It is a recipe for tyranny.
Why not Double Jeopardy?
With most things in life there are tradeoffs. The criminal justice system is no exception. Ideally, the guilty would always be convicted and the innocent acquitted, but this is not realistic. Judges and juries are not omniscient, nor are they always free of prejudice. In the real world, there will always be some innocent convicted and some guilty acquitted.
Everyone has different values and I am sure many wish to rewrite our public policies, but for the time being, as a society we have settled on the principle of “better ten guilty men go free than one innocent soul be condemned.” This is one reason we have constitutional protections from double jeopardy. The defendant in a criminal case can keep appealing to higher courts without limit, but the prosecution only has one shot to do it right.
The downside to this policy is that a sloppy or incompetent prosecutor could lose and thereby allow a true criminal to go free. The police in their zealousness may act too quickly before they have gathered enough evidence. If new evidence shows up years later it will be too late. They will have already blown it. Corrupt police officers or district attorneys may even bring charges against local bosses prematurely on purpose, knowing that they will get away with it. It wouldn’t surprise me.
On the other hand, a ban on being tried twice for the same crime protects innocent people from politically-motivated harassment. Without such a ban, even those found innocent many years ago of trumped-up charges could never rest easy. Citizens speaking out against the government could be charged and arrested again and again and again for the same crime with no remedy. Furthermore, since even innocent people are sometimes convicted, the chance that eventually some jury might find them guilty greatly increases the more chances the state has to try them.
While I personally prefer keeping the constitutional ban on double jeopardy, I can see that pros and cons exist on both sides. I don’t know for sure what the best policy is. However, whatever policy we as a community choose, it needs to be clear and consistent. It would not do to have one policy on paper and another in practice. In school I was taught the constitution and told we all had double jeopardy protection. Since graduating, I find that there are so many exceptions to this that the protection is worth next-to-nothing.
Probably the least objectionable exception is the mistrial. When there are grounds to believe the trial was unfair in some way, a mistrial can be declared and a new trial ordered. This seems to make sense, but a mistrial can also be declared in cases wherein the jury was unable to reach a unanimous verdict. This is what happened to Bill Cosby. (56) Why should we expect unanimity? I think it’s a miracle as few as three people can agree on pizza toppings. Getting twelve people to agree on whether or not to put a fellow human being in jail for the next thirty years sounds impossible. It is a wonder it happens at all. Insisting on it happening, I believe, will only encourage jurors to concede to the majority so they can go home.
Another exception is that even after being found not guilty in a criminal court, one can still be charged with essentially the same infraction in civil court. The stakes are lower, but so is the burden of proof. O.J. Simpson was found not guilty of murdering his ex-wife, yet later he was sued by her family and the civil court found him to be “responsible” for her death. (57) Logically, there is no way to prove someone responsible for a death without describing in what way they are responsible. Unless the court was able to show negligence, and a different means of death than previously established, he could only have been “responsible” by committing murder – something the criminal court had already tried him for and declared him not guilty of.
Another exception I have heard is that even if found not guilty in federal court, one can still later be tried in state court (and vice versa). This tactic was proposed by those wanting to go after members of the Trump administration that he might pardon. (58) My understanding was that federal supremacy meant that a president could pardon anyone convicted at the state level and that federal judges could overturn state-level convictions on appeal. If someone has already been found not guilty by a court they could later appeal to anyways, haven’t they already won? Otherwise, we could try abortion doctors for murder in those states that never legalized abortion, but we don’t because we assume that they will appeal to the US Supreme Court.
Note: Just as I put the finishing touches on this book and prepared it for publication, it was been leaked that Roe versus Wade is being overturned. I can’t keep up with the changes!
Then there was the man who had fled the Dominican Republic claiming the police back home might torture him and asking for asylum. The first judge agreed and ruled that he could not be deported. Instead of accepting the loss and moving on to catch other illegal immigrants, the ICE then tried to have him extradited. (59) Fortunately, the second judge caught the trick and dismissed the motion – but what if it had gone the other way? How is it possible to legally extradite someone if you cannot legally deport them? That prosecutor needs to be in jail.
Then there was the case of the man pulled over for going UNDER the speed limit. The officer on duty thought it was suspicious. The judge disagreed, and the evidence of his intoxication was suppressed on fourth-amendment grounds. According to the way I was taught the constitution and the reasons behind writing it, that should have been the end of it. Instead, the prosecution appealed to a higher court and actually won, forcing the accused to appeal to the state supreme court to finally settle it. (60)
That any one of these exceptions exist is frightening, but all five taken together completely undermines the ban on trying people twice, reducing it to utter meaninglessness. Since none of these exceptions is spelled out in the constitution, it would not be unreasonable for one to believe the prohibition of double jeopardy absolute. It would not be unreasonable for one to think our justice system fundamentally lawless and unfair when they do hear of such exceptions. If charged again with the same crime, it would not be unreasonable for the accused – whether guilty or innocent – to refuse to cooperate, and be willing to use lethal force to defend themselves against what they (rightly) see as nothing more than a gang of criminals running a pretend court. Since what happens to one of us could happen to others, it would not be unreasonable for the accused to gain millions of supporters willing to defend them. When the government doesn’t even follow its own rules, it is a recipe for revolution.
How Law Works:
Other actions explicitly unconstitutional include bills of attainder and ex post facto laws. However, these would still be illegal even if it were not spelled out in the constitution or even if they were made explicitly legal because of what the nature of law is and how logic works.
Ruling for or against a particular person or institution is an inherently judicial act. If keeping within the spirit of separation of powers, legislatures cannot do this. Laws are by definition that which apply to everybody equally. Thus, bills of attainder are unenforceable.
Equally so are ex post facto laws – not because the constitution says so – but because of logic. You can’t try someone for a crime that isn’t a crime and for the same reason you can’t try someone for a crime that wasn’t a crime at the time it was committed. Why? Because it wasn’t a crime. You can only try people for specific, named crimes. It really is that simple. No further reasoning is necessary.
Besides, if this were to happen, citizens would begin to worry if perfectly legal things they were doing today might get them into trouble decades from now. Nobody would be safe, not even those in government when the other party sweeps into power in the next election cycle.
However, governments have in the past violated the principles underlying both of these provisions. In the United States and Europe, the leaders have at times enacted retroactive taxation, taxing past earnings differently than was the tax law at the time. (61) Citizens had already made decisions of how to structure their assets based on the laws at the time and not on the unknowable future. This is nothing other than fraud and theft.
Furthermore, in Texas, governor at the time Rick Perry was annoyed by some officer under him and acted within his authority to eliminate the office she was an officer of. He was immediately charged with a crime, but I was unable to find out what the alleged crime was. (62) They must have written something down for the suit documents, but what? How can one be charged with a crime for acting within one’s authority? How can one be charged with something that isn’t a crime?
There is No Equality Under the Law:
Equality under the law is a myth. In spite of all the talk about judicial mistakes creating bad precedent that will have to be followed, judges actually break precedent all the time. There is no consistency.
Implied laws: Several years ago, it came to my attention that there was no law that mandates that people pay their federal income tax. The Brown family in New Hampshire attempted to get away without paying and the courts ruled against them, claiming that the tax code itself that congress passes every year is the mandate. The government argued that it was an implied law, since the tax code contains within it how much people owe based on taxable income. (63) The Browns disagreed and refused to pay, so the FBI sieged their house. (64)
On a related note, there were some people who refused to show their driver’s license to an officer that had pulled them over, claiming it was a violation of the fourth amendment. The courts ruled that since the person was driving a vehicle at the time, which unlike walking is a state-regulated activity requiring a license, any officer could, if he wished, inspect to make sure the driver was licensed. The licensing requirement implied it. (65)
I suppose all that makes sense, but then by the same reasoning, shouldn’t we have to show our IDs to vote? After all, the law says that only American citizens who have reached eighteen years of age and reside only in the district they are voting in and nowhere else can vote. Doesn’t this imply that one has to show proof of age, address, and nationality? Of course it does! My entire life I have thought it terrifically strange that we are not required to show IDs. If we have to show IDs for little things such as buying cigarettes, opening a bank account, or staying in a hotel, shouldn’t we need to prove who we are before making decisions that could affect the whole country? Why is it that several states had to pass laws making this explicit?
This is ridiculous. Either every law must be explicit, meaning there is no way to make us pay our taxes or show our licenses, or else the law can be implicit, meaning anyone in any state refusing to show IDs to vote could be denied a ballot. The ruling class tries to have it both ways, the will of the people be damned.
Also, by the same reasoning, shouldn’t presidential candidates be required to provide a birth certificate? The constitution requires that the president be at least thirty-five and be a natural-born citizen. Doesn’t this imply that in order to be placed on the ballot, a candidate must provide some proof of age and national origin? Of course it does!
All this nonsense about Barack Obama’s birth records would never have happened if he had just submitted them in the first place like he was supposed to. That there is no law making this explicit shouldn’t matter because there is no law saying you have to pay your taxes either, but that won’t stop the IRS from coming after you.
Then there are the cases of implied immunity. I read in the newspaper about a twenty-five year old man in Rhode Island who had sexual relations with his seventeen year old girlfriend and filmed it. Since this was above the age-of-consent in Rhode Island (according to the author of the article), the police could not charge him with statutory rape, but they did charge him with possession of child pornography. (66) This is absurd! If the girlfriend is considered by law to be adult enough for actual physical sex, she is certainly adult enough to star in a film. Is she a minor or not? How is it that merely being in possession of a tape of a minor makes you a criminal, but being the one in the video actually having sex with the minor is not? Doesn’t the age-of-consent imply that filming is also legal? Of course it does! I don’t know whether any of these activities should be illegal or not or what the age-of-consent should be; I am only insisting on consistency. You can’t have it both ways!
Saving us from ourselves: Judges break precedent in other ways as well. In school, I was taught that the founders had put checks and balances into the constitution to ensure no one part of the government acting alone could become tyrannical. The legislative branch was able to impeach executives or judges. The president could veto laws he deemed harmful. The supreme court could strike down any law or executive action they deemed unconstitutional. The purpose of having these checks and balances, rather than simply letting the majority rule, was because the founders knew the dangers of pure democracy and wanted to limit it. The purpose of a republic is to protect the people from their own bad voting behavior – or so I was taught.
Fast forward to the Obama years when the constitutionality of the Affordable Care Act was challenged. Justice Roberts cast the tie-breaking vote, arguing that the law’s mandate to purchase health insurance could be considered a tax and therefore within the government’s legitimate constitutional power. The issue was clouded by the fact that Obama had promised not to raise taxes and later claimed the measure not to be a tax, allowing the Republicans to paint it as a punitive fine on mere existence and raising questions of how to interpret and apply the law. Roberts claimed it was not the court’s role to protect the voters from their own bad voting behavior, but rather to make the extra effort to find a way to justify the constitutionality of any law, and strike down only those laws totally without constitutional merit. (67)
Fast forward again to the later Obama years when the constitutionality of the Affordable Care Act was challenged yet again. This time the issue was whether the feds could expand the public exchanges to cover those who would have qualified for Medicaid if only their states had raised the income limits like they were supposed to. The law as passed gave no such explicit authorization. Justice Roberts came to the rescue again, arguing that the lawmakers could not possibly have intended not to cover these people and read into the words more than was there. In other words, he saved the people from their own bad voting behavior. (68)
Which is it, Roberts? Is your job to save us from ourselves or not? From where I stand, it looks as if the ruling class will use whatever argument they have to in order to get their way, consistency be damned. This is nothing short of lawlessness.
Furthermore, given that in theory any non-activity could be taxed if “not getting insurance” can be taxed, the existence of the ACA implies an unlimited government that can mandate anything so long as it is structured as a tax. Yet at the same time, the Constitution and its contextual documents (such as the Declaration of Independence and the Federalist Papers) imply a limited government. How can the ACA and the Constitution be compatible?
Ambiguous laws: Some laws are so ambiguous that they are unenforceable. Yet they remain on the books. This is dangerous because leaving them there allows some future zealous prosecutor to attempt to enforce them. It leaves regular, otherwise law-abiding citizens never knowing where they stand.
On more than one road I have encountered a sign telling me “Keep right except to pass.” If I pass one slowpoke, and see another a quarter-mile away, can I stay in the left lane while I catch up with the second? How far apart can they be? If the right side of the road is beset with on-ramps and off-ramps, with traffic leaving and entering the lane, can I pass them all by staying in the left lane? How far can I drive without seeing a ramp before I have to pull over? I have been in situations like this wherein traffic was heavy enough that constantly changing lanes would have been very tiresome and unnecessarily risky, since every time I change lanes there is a chance I have missed seeing someone. I remained in the left lane for miles and miles as I passed an endless parade of slowpokes, even while speed demons zigzagged between us to pass me on the right – and of course I have also seen signs telling slower traffic to keep right.
I’ve also been in situations wherein I began to pass someone and they sped up so that I had no need to pass them, but I could no longer return to the right because we were then too close and it would not have been safe to tailgate them (unless I slowed down much more than I wanted to). How do such signs even apply in those conditions? Why make signs with no meaning?
More recently, some cities in west-coast states passed ordinances to discourage the use of plastic straws. The rules do not apply to drive-throughs or restaurants with straw dispensers in the lobby for customers to serve themselves. It only stipulates that servers not hand out straws automatically, doing so only when asked. Punishments include jailtime for first-time offenders. The problem with this law (among others) is that it could always happen that a server holds up a straw, a customer grunts, and this could be misinterpreted as confirmation that they want one. There is always a way to talk your way out of conviction, and so there is no way to enforce the law.
What is the point of rules if not to ensure a change of behavior? Do they just want to keep us on edge for no reason?
Who is in charge?
Presidential elections in the United States are complicated. People vote. The votes are counted up separately in each state and the state legislators select electors based on the tallies – or the legislators can set election laws to allow the executive branch to run the election with the secretary of state certifying the electors. Then the electors vote. Then the congress and the senate vote to accept or reject the electors. Then the Chief Justice gives the president-elect the oath of office and the deed is done. That’s a lot of actors. Who actually has the authority to choose?
Could the Chief Justice simply swear in someone else who didn’t even run and is supported by no one else? Would that be legally binding? If so, why bother with congress? Let the judge choose.
Could the congress and senate simply choose to accept an alternate slate of electors over the objections of the state legislators? Would that be legally binding? If so, why bother with assigning electors in the first place? Let congress choose.
Are electors really allowed to vote for whomever they want against the will of the state legislators? If so, why bother with anything else? Let the electors choose.
Are state legislators really allowed to select whichever electors they want against the will of the voters? If so, why bother holding an election at all?
While fraud is hard to prove, the basic facts of the 2020 election were that in several states a cabal of state employees ran an illegal election with unverifiable ballots and selected electors over the objections of the state legislators. Then congress voted to accept these electors and not the ones of the other party even though they knew the election was disputed – but did they even have this authority? Who actually has the authority to settle election disputes? The courts?
Trump seemed to think that the Vice President had the power to choose which slate of electors to present to congress, but Pence apparently disagreed. Who was right? How can there be disagreement? Why aren’t these things more clear?
In my probably oversimplistic way of looking at it, I saw no reason for Trump to concede. Legally speaking, he had won. According to the state legislators (and almost certainly the majority of voters), he was the constitutional winner. (69) Everything that happened after that was formality. Yet, I am now told even by people who believe in the fraud allegations and supported Trump that it is congress that decides these things and that everything before that is formality. Which model is right? Why aren’t these things more clear?
Furthermore, in 2020 it seems that the vote was made under duress. A violent mob invaded the Capitol as debate was occurring over whether to accept the electors they were presented. (70) It is likely that congress felt threatened into not continuing the debate, and simply voting to accept. It was a coup. Since Trump had taken an oath of office to “protect the constitution from all enemies, foreign and domestic,” I believe it was a violation of his oath to concede. It meant conceding to the mob. If Trump had done his job, he would have declared martial law and refused to step down. Instead, he left his post when there was no compelling legal reason to do so.
I’m not saying for certain that Trump did wrong. As President, he had access to information I don’t – including classified secrets. Maybe he knew the military and Secret Service would not support him. Maybe he somehow knew that the Democrats were ready to start a war and that his supporters would back down if he told them to. At the time, given what I was hearing, I would have guessed his supporters were ready to start a war with or without his blessing and that the Democrats would back down if shown a unified front. In any case, the constitution is not clear enough. This needs to be fixed before the next election or else we will certainly have a war.
The problem all this raises is one of authority. If I don’t know who has the authority to choose the president, I cannot tell who is president. Who is president? If a bill is passed and is mailed to Mar-a-Lago and signed by Trump, is it actually law? What if Biden signs the bill? Must I obey? Will the executive branch enforce it? Will the judicial branch back them up? I need to know.
We live in a land of confusion and unpredictability. Nobody follows the rules, not private institutions, and not the government. Things happen that should not and other things don’t happen that should. Edicts are made by people without authority to make them and private citizens have no idea whether they should obey.
In East Providence, Rhode Island, there was a referendum put to the voters to change the terms of the city council from two years to four. It passed, but there was some confusion about whether they needed approval from the state for the change or whether their home rule charter exempted them from this. Those in charge of printing the ballots continued to use the two-year forms. When one politician suggested they all serve four-year terms anyways, his opponents cried foul. (71)
What happens if another election is held and this politician loses his seat, but refuses to leave on the grounds that it is an illegally-held election used by his opponents to get rid of him? What happens if the old politician whose term is not yet up and the new politician elected to serve the second half of his term both show up to take the same seat? What happens if an ordinance is passed with the tie-breaking vote coming from that seat? Is the ordinance legal or not? How should the courts apply it? Should the police enforce it? If I happen to pass through the city on one of my road trips and violate the ordinance (unwittingly, I’m sure), am I under any obligation to cooperate with the police and courts to enforce an illegal non-ordinance that was never duly passed? How does this happen?
In Warwick, Rhode Island, was another case of confusion. It was found that firefighters were receiving more sick days in their contracts than approved by the city. (72) How is that possible? Who was signing the checks? If someone else claimed to have the city’s authority, how was it that this person was able to convince the banks to transfer the funds? Did the city approve it or not?
In Hawaii, a judge declared that President Trump’s ban on travel into the US from select, terrorism-prone countries without good systems of verifying identity was unconstitutional. (73) A judge in Hawaii, with power only over his jurisdiction, not over the whole country, and certainly not over the travel plans of individuals in other countries, was telling the president that he had no right to keep them from coming in. Rather than ignore this lunatic – which is what happens to me when I try to tell the president how to do his job – Trump immediately complied with the judge’s orders pending appeal to the Supreme Court. If I had issued the same kind of order, would Trump have listened to me? What gives a Hawaiian judge any greater authority than I have over what happens in foreign countries? What gives a Hawaiian judge any greater authority than the president? Who’s really in charge here?
Other countries are even worse. In Greece, it is impossible to buy or sell land. There is no central land registry to track who owns what. To buy land, you must take it on faith that the seller actually owns it. Often, someone with a rival claim will come out of the woodwork at the last minute, halting everything. Also, even when all taxes and fees are paid off, often some additional official will pop up demanding more in order to gain the final approval. There is no way to know the full extent of fees ahead of time and they are arbitrarily imposed. (74) India, China, and Russia have similar problems, with bribery simply being the norm of how statecraft is accomplished. (75)
How can authority act when it is not clear who has authority? Can I claim to be an authority? Will people actually pay me to stamp their permits? Could I get away with that? I am so confused right now. It is a recipe for anarchy.
Why not give Legal Advice?
The executive branch is the one that enforces the law, so they had damn well better know what the law is, what it means, and how to apply it. Otherwise, they aren’t doing their jobs.
The judicial branch is the one that applies the law, so they also had damn well better know what the law is, what it means, and how to apply it. Otherwise, they aren’t doing their jobs.
The legislative branch is the one that wrote and passed the law in the first place, so they would definitely know what it means. Even if the law in question is so old that all the legislators responsible for it have died, the legislative branch should still maintain some sort of office that keeps track of these things. Otherwise, the new legislators might pass something in contradiction to previous legislation.
So why is it that officials in both the executive and judicial branches tell me they can’t give legal advice? Is it fair to punish me for doing something wrong when no one will explain ahead of time what is expected of me? I shouldn’t have to rely on a lawyer. Doing so perpetuates a system that effectively sells justice for profit and lawyers are often wrong in their predictions anyways. In every high-profile case, the lawyers on one side win and the lawyers on the other side lose. If the judge is the one making the decision, it is my right to know ahead of time how he/she applies the law.
If you want something from someone, it is your responsibility to teach them how you want it done, not theirs. If the government expects us to follow the law, it is their responsibility to be able to explain its meaning and how it applies to different situations. Otherwise, we have to bumble through life hoping we have done it right or that we never get caught.
On at least two occasions I had wanted clarification on how the government would view my actions before I did them. I did not get it. In one of those cases, it came back to bite me. Why should I tolerate this?
The Constitution Is Not a Liquid!
I was taught in school that the American Constitution is a “living document,” meaning that it could be amended, though this was very difficult to do. When I was much older, I heard others use the term “living document” in a different way. They meant that the words could be reinterpreted in a modern context with new meaning that the founders never intended. The reasoning in both cases was that since the founders could not have known of future social conditions, we should not be held hostage by outdated thinking.
This is certainly valid reasoning, but there are good reasons to force our leaders to amend the constitution if they want something changed rather than just deem it changed because the culture and language have evolved.
Reason One: Language never evolves as a whole, but rather different segments of the population learn at different rates. Changing things just because one party’s base has changed will necessarily confuse and alienate the other party. In the case of the constitution, its perceived meaning actually changes very slowly because it is still taught what the original meaning was.
Reason Two: In any society of more than two people, there are always factions that will disagree on the direction to take the country. These disagreements are settled through elections. Circumventing the voting process by simply reinterpreting the words of the law without repealing and rewriting it is a usurping of power of the worst kind. When one faction breaks the law it encourages the other to do the same. The end result is widespread disobedience and civil war.
Reason Three: While it is technically true that the constitution exists to place limits on government’s power, this misses the deeper truth that without the constitution the government has no power at all. Without a formal, common agreement by all parties, the default is anarchy. It is the federal constitution that spells out what the federal government can do, such as collecting taxes, raising armies, and printing money. Without such an agreement anyone and everyone could claim a monopoly on such activities.
Reason Four: Because the constitution is the standard by which all other laws are measured, it necessarily must be harder to change than the average law. Requiring two-thirds of congress and three-quarters of the states (or vice versa) to amend provides the required difficulty. Individual judges or executives (sometimes elected by pluralities of less than fifty percent) reinterpreting the constitution to serve them does not. Otherwise, the slimmest of majorities could simply rewrite the constitution to allow any law they want to pass or shift decision-making power to whomever they choose, and this would be literally indistinguishable from not having a constitution. It is a recipe for anarchy.
Arbitrary rule hurts real people!
In an ideal world, legality, morality, and public opinion would perfectly coincide. Unfortunately, we live in a world wherein we cannot always agree on what is good and what is evil. For the sake of a peaceful, functioning society, we tolerate some evil. We have erected elaborate means of settling disputes between us, such as property rights, civil and criminal courts, and elections. When one faction wants one thing and a second faction wants the opposite, the dispute is settled by first allowing everyone to voice their opinions, then voting for candidates, and then the winning candidates vote to pass laws that will apply to everyone equally, including members of the government itself. This is the system that people have agreed to in order to avoid civil wars. They tolerate unethical behavior so long as it is lawful. They obey laws they do not believe in so long as they were duly passed.
Tolerating legal evil is already such a high demand that asking someone to tolerate illegal evil is way too much to ask. This is why it is of utmost importance that we follow the established procedure to settle disputes. When speech is suppressed, ballots are counterfeited, laws are deemed passed that were not in reality passed by those with the authority to do so, and when those in the executive and judicial branches twist the obvious meaning of the law to fit their abusive actions rather than fitting their actions to match the obvious meaning of the law, it is simply civil war by another name. The only correct response to arbitrary rule is disobedience – and should the government back up its rulings with force, the only correct response is greater force. It is a recipe for war.
Some people think that we should close the border and keep foreigners out of the country – and they have some legitimate concerns. Other people think that all people have the God-given right to travel where we please – and they also have some legitimate concerns. In order to settle conflict, as a society we have adopted a single, consistent policy known to all: A certain number of foreigners are let in and any who sneak in without going through the official channels are deported – except for Cubans. Rightly or wrongly, it is the law that Cubans caught at sea are sent home, but those making it to American soil can stay. It doesn’t make sense to me either, but this is the compromise we all must follow.
Unfortunately, those in government do not follow their own rules. A family of fleeing Cubans once settled on a bridge connecting the Florida Keys. The only problem was that it was an old bridge no longer used and the ends had been broken off so it no longer touched natural land. The government agents that caught them decided that this bridge did not count as American soil and sent the Cubans back. (76) This is insane! If the bridge is truly not considered American soil, would it then be okay for the Cubans to set up a military base there? Could the Russians do it? Would we allow that? Could I claim it myself for the new kingdom of Danitopia?
In the case of the Cubans, they were merely sent back where they came from so no great harm was done, but government has also been known to completely destroy people’s lives and businesses and put American citizens in jail who have committed no crimes:
I mentioned before the bakers from Oregon who refused to decorate a cake for a gay “wedding.” They did not refuse service to a particular type of person, but rather refused to do a particular type of service. Demanding a wedding cake decorator decorate a non-wedding cake is a bit like demanding an office supply store wash your car. That isn’t the business they are in.
If it were me, I would probably just do it for the money, reasoning that nobody is actually being harmed by the message, just as I would if someone wanted a swastika, hammer-and-sickle, or Hillary Clinton’s face, but I would still be nervous of someone actually seeing me do it, not knowing how I was going to explain myself, and I would wonder whether the whole thing was a Candid Camera prank.
For reasons still inexplicable to me, the courts decided that this was discrimination in violation of discrimination laws, and decided that mere laws had more authority than the free religion rights enshrined in the constitution – the supreme law of the land that overrules all other laws. The ruling was so arbitrary, and so ridiculous, that I can’t understand why anybody in the executive branch would have gone along with such nonsense. These people were fined hundreds of thousands of dollars and had their business shut down for nothing more than the “crime” of not decorating a cake! If the word evil has any meaning at all in the English language, it applies perfectly to the government of Oregon. Yet they get away with it. I have yet to hear of a wave of impeachments and forced resignations in the northwest, so I am still on my toes. I am worried about travelling there.
Some people think that it is helpful to have state-registered marriages, and the reasons they have for this simply to not pertain to homosexual unions – whatever they might be called. Other people think that homosexual unions should be included along with traditional marriages in any regulation the state passes. Rightly or wrongly, each state has set its own laws on the matter. Some legalized gay marriage, some did not. Then the Supreme Court declared that all such laws discriminating between gay marriage and traditional marriage were unconstitutional. The court, of course, has no authority to amend the constitution, nor can they repeal a law – only the legislature can do that. However, the court can and did make the old laws unenforceable. County clerks are now free to break the laws by issuing marriage licenses to gay and lesbian couples with impunity. Prosecutors will not bother trying a case they know will simply be overturned by a higher court on appeal (unless of course they are charging Trump administration members with crimes they have already been pardoned for). SMH
This is exactly how the system is supposed to work to keep us all safe: In order for sanctions to be brought against anyone, all three branches of government must agree. The legislature must agree that a certain behavior being committed should be outlawed. The executive must agree that a particular individual is guilty of committing a behavior that has been outlawed. Then the judicial must independently look at the evidence, reach the same conclusion, and decide on the level of punishment (within the bounds set by law). Should any one of the three branches balk, the government is impotent.
This is not how it worked in the case of a county clerk in Kentucky named Kim Davis. (77) Even though the supreme court ruling allowed her to break the marriage laws with impunity – issuing marriage licenses to any couple that wanted them – she continued to do the job she was elected to do by following Kentucky law anyways. While the court’s decision did not prevent her from breaking the law, it also could not compel her to break the law. The courts simply did not have the authority to rule against her; she wasn’t breaking any laws. That did not stop one federal judge from issuing her an order to break the law anyways. She rightly refused and was promptly jailed for contempt of court. She was jailed without trial for breaking a non-law that doesn’t exist! That the jailors acted on the obviously illegal orders of the judge is even more mind-boggling! Do they follow any order from anyone? Would they arrest Donald Trump or Barack Obama if I, SuperDan The Magnificent, self-proclaimed King of America, ordered them to? If I ever heard a judge say something so preposterous, I would have called the hospital, assuming they were having a mental breakdown or a stroke.
Many of my so-called friends and acquaintances were in favor of jailing her, thinking she was getting what she deserved for being “hateful.” I have no idea whether Ms. Davis is hateful or not, but hate isn’t a crime! If hate were a crime, the entire population of the country should be in jail. Everybody hates something.
I remember wondering at the time why nobody did anything to rescue her. The jailors never released her. The judge was not immediately overruled by a higher judge. No band of armed patriots showed up to bust her out. Instead, there was nothing more than sounds of protest and it took days to release her. I was disappointed and disgusted. How is it possible for something like this to happen to somebody in the United States of America?
I remember thinking at the time that something similar might one day happen to me. A crazy court might put me in jail for breaking a non-law that doesn’t exist or for failing to obey the illegal orders of a judge. My “friends” would all say I deserved it. Nobody would rescue me. I really would not do well in jail – not even for just a few days. I expect I might try to kill a guard and escape. What would my peaceful options be to resolve this sort of injustice? There are none. The government is asking for violence.
Anyone who has watched the news at all in the past twenty years is well-aware that the government doesn’t follow its own rules. The rule of law is a mere façade covering a web of corruption and lies. In spite of still having elections, we live under a system at times no less arbitrary than the monarchies of old Europe. Arbitrary rule creates dangerous people. When otherwise peaceful, hard-working, law-abiding, patriotic citizens are repeatedly abused for no reason, it can make them crazy. When their usual avenues of maintaining a living are cut off and they live in constant fear of prosecution or litigation, they will no longer know how they are expected to behave. This only makes them harder to direct. A government that actually wants to be obeyed will be careful to be consistent, predictable, and understandable. The way those running the United States act, I can only conclude that they want anarchy. It is a recipe for war.