Classical liberals (nee conservatives) are always cast as rigid and unbending theocrats with nostalgia for the good ole days. Often chided for a lack of interest in what some define as “progress”, they are described in age, race and gender phraseology – as old white men – who just want to shut down everybody’s good fun. Just a bunch of old stick-in-the-mud buzzkills with all their rule of law nonsense.
That meme has created a pretty effective strawman that supports a certain viewpoint on the progressive left that their opposition is nothing less than the American Taliban – but what it actually represents is the chafing disagreement progressives have with people who believe in the constancy, necessity and sanctity of the rule of law.
The law was once a far less intrusive and far more benign part of American life. Lawsuits and appearances before the court were events to be avoided at all costs. Contracts and agreements were so simple, there was no need to involve the law because it was abundantly clear who was at variance with them. This held true for America’s first century of existence – at least until the forces of progressivism changed the thinking of what the legal system could do. In the second century, progressives ended the passive and impartial role of American law and began the transformation into an active tool for meeting their goal of implementation of social change.
This is when the corruption of the legal system began. It resulted in a system so arbitrary and capricious and so simultaneously ubiquitous and powerful as to render it virtually indistinguishable from lawlessness. In his book “By the People – Rebuilding Liberty Without Permission”, Charles Murray notes five major factors that indicate our current system is the functional equivalent of lawlessness. These are certainly not all-inclusive but they do provide a framework for objective assessment of the reality of our contemporary legal environment. They also provide a bit of an “Ahh, Ha!” moment as well.
Murray argues that a legal system is functionally indistinguishable from lawlessness when it consists of:
- Criminal law sufficiently removed from mens rea (guilty intent or an awareness of guilt).
- Law that is sufficiently complex.
- Law that is sufficiently subjective.
- Law that is sufficiently discretionary.
- Law that permits the state to take private property without compensation or has the ability to force the transfer of private property to other private individuals.
All of the above make a great deal of sense in explaining the frustration many feel with the lack of ability to understand the outcomes of public legal events or the madness of seeking explanation for where certain entities derive their power to effect substantial social change.
One of the strengths of a system based on the rule of law is its consistency. That is to say that it is based on such common, solid and irrefutable principles and concepts as to be almost entirely predictable. Even though it is said that ignorance of the law is no excuse, in a system described by the five characteristics above, ignorance of the law is a common feature. The concept of the law as a tool for social change has almost rendered legislation meaningless as the resolution of every situation now rests on interpretation of a judge or some other agent of the deep state. We are locked into a never-ending episode of the Twilight Zone where the Clintonesque mantra of “it depends on what the meaning of ‘is’ is” rules the day.
Can it be unwound? I doubt it can. Stare decisis (respect for precedence) rules and this has allowed bad law to be built on a foundation of bad law. Law is no longer law, it has metastasized into political policy enacted at the whim of the ruling class – often used to create, cement and protect each other and their power. It is impossible to contemplate that an Article V constitutional amendment process could roll this back. Meaningful change in this arena requires drastic judicial review and the overturning of a century of social engineering jurisprudence so begin the healing of the legal system. I just can’t see that happening.
I’m coming around to the viewpoint of my FB friend Donald Sensing – we may be too far gone. We may have to let it burn and rebuild from the ashes.