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On the Coming Civil War, Part 4, The End of the Rule of Law

In my initial post on this series, I offered my belief that we are actually far from a ‘shooting’ civil war in America, and gave some reasons why.  In my later posts, I have been laying out some of the things that are nonetheless adding fuel to that fire.  In this post, I will cover something adding ‘fuel to the fire’ which, in ultimate terms, is probably the most critical of all.  However, it is so basic, so fundamental, so foundational, that it is felt as much as reasoned through.  To turn down the heat substantially, it must be reasoned through.  It must be brought to the surface.  ASAP.

Regular readers of this blog will detect some similar themes.  However, since I have first started writing on this blog, it has only gotten worse.  There are even more examples and illustrations of what I have been warning about.   This might be the first time I’ve put it in the context of a ‘civil war,’ though.  To do that, let me provide some important context.

When the first Americans sought to establish a new country, they were informed by their observations of European history.  Indeed, it was precisely because of the rampant tyranny that coursed through Europe that many of these people came to America in the first place.  They wished to prevent America from becoming Europe.   They identified the Government as the number one threat to human freedom and dignity, and by various measures, sought to ensure that the American Government could not do what European Governments had done.

The first Americans were also well-informed about contemporary arguments on such things.  They had read Locke, Hobbes, and others.  They attempted to take the ‘good’ from these people and reject the rest.  For a variety of reasons, not the least of which was that they were drenched in a Christian worldview, they desired an orderly society.  They saw that there was no such thing as ‘no Government.’  There had to be a Government. Their quest, as it were, is well encapsulated by this statement:

But what is government itself, but the greatest of all reflections on human nature. If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In forming a government which is to be administered by men over men, the great difficulty lies in this: you must first enable government to control the governed; and in the next place oblige it to control itself.” —James Madison, The Federalist No. 51 [emphasis added]

How to solve this riddle? They distilled their readings and observations into a uniquely American answer which, in my mind, is still the best that has ever been produced.  In a nutshell, the Government became the people–individual families, if you will–who delegated certain authorities which properly belonged to them.  It was a bottom up approach, not a top down one.  It is in that light that  the 1st and 2nd Amendments should be seen.

To appreciate the necessity of such an approach, and their resulting wisdom, you have to understand how things were in the world, and in many places, still is.  On the one hand, power, however it was obtained and sustained, was ultimate.  Individuals and groups sought to centralize power into their own hands for their own ambitions, enacting measures (eg, forced conscription) based on nothing more than their own say so.  On the other hand, this was before the rise of the centralized State, Hobbes’ Leviathan, if you will.  It wasn’t merely that localized violence and score settling, etc, was common, but that in many cases, it was necessary.  If there is a murderer in your town, it fell to the townspeople to deal with him.  There was no local police force to rely on.

Horrific abuse from both hands was normal.  It was the backdrop the first Americans had for their considerations when they sought out to create a system which avoided the pitfalls on both sides.

Since Hobbes has come up somewhat naturally here, we can say that his ‘proposal’ is precisely what has been accepted in the rise of the Nation-State.  In the reality in which people really lived, the violence of the monarchs and the violence of the locals was equally to be feared.  The erection of a centralized State which was given a monopoly on ‘authorized’ violence diminished the problem of vendettas and parochial tyrants.

This notion won the day in Europe and America, but with one very important difference:  in Europe they enabled the ‘government to control the governed,’ but did little to ‘oblige it to control itself.’   In America, they deliberately attempted to accomplish both, and, in principle at least, succeeded… initially.

Let me re-frame this so it becomes more obvious what the problem is today.

Essentially, what we have here is a ‘bargain’ between citizens.

They will forego the old way of settling matters, which often meant localized, but barbarous acts of violence.  As I said, some of this was needed.  If a father was murdered, it fell to the sons to deal justice.  But this would spiral out of control, because of course after the sons dealt justice, the family of those punished would feel like they now had to avenge.  A truly vicious circle, if ever there was one.  By delegating the right to use violence to punish law breakers to a ‘government,’ it ensured that in the first place, what was actually done, was justice.  If that succeeded, secondly, then, there would be no cycle of revenge.

Swap in ‘murder’ for any other thing that people have contended over throughout the centuries, and you can really appreciate the value of the ‘bargain.’

So long as the community had a reliable way to shape how it was itself being governed, people preferred this route rather than the constant displays of raw power that punctuated their lives up to that point.  In America, it was recognized vividly that the ones doing the governed had to be intensely checked by the governed, otherwise it would not be local thugs (or outraged sons) they would have to worry about, but government officials… who, now possessing the ‘monopoly on violence,’ had a lever for exerting their will that was exclusively theirs.  (Enter, the second amendment.)

It is this ‘bargain’ which is being dismantled before our eyes.

Consider how it was supposed to work:

Group A wanted to build a sawmill on the river, but Group B needed that water to irrigate crops. In the old days, which group got their way ultimately depended on sheer power, and was ultimately settled by who could enforce their will, by violence, if necessary.  In the new days, neither group much likes the idea of being stabbed to death on the street or having their houses burned down, so they submit the matter to the community, according to laws which have been written by the community members itself.  And, since the community wrote the laws, if a law becomes outdated or undesired, it can be changed.  It might be a difficult process, but it could be done.  One needed only to persuade several thousand people of the merits of their position, go through the process, etc.  One group loses on the economic front, but they still have their lives and limbs.

When I say the ‘rule of law,’ I mean people submitting themselves to an orderly way of doing things, even when things don’t go their way.

Now, for this to actually work, a number of things have to happen.  Chief among them of course is that you need people to go along with the ‘bargain.’  But why should they?  Why would they?  To obtain their consent, other things need to happen.

  • People have to believe they have a reasonably good chance to having their own ideas win the day, if they feel strongly enough to pursue it.
  • They have to believe that if they give up their obligation to exact justice on someone who harms them or a family member, the ‘government’ will actually exact justice.
  • They have to believe that if the community passes a law, the law will be enforced, as written.

And so on.

But in order for these things to happen, still other things need to happen.

First of all, the scope of the things which fall under community intrusion must be kept radically limited. 

People need to feel like they can go about their daily business largely unhampered by constraints put on them by other people.  The community itself, as a community, should only involve itself in things that genuinely warrant community-wide involvement.  The more invasive a community becomes, the more issues are created which evoke responses that people feel strongly about.  If a community has ten annoying things it has imposed itself on, but a person feels he can go along with 9 of them, but not the 10th, that person has a reasonable belief that he can strive to undo the 10th thing.  But if a community has ten thousand intrusions into a person’s daily life, and 9,000 of them are tolerable, that leaves 1,000 things to really grate on a person.  Well, a person has a good shot at reversing 1 intrusion.  He has no shot at reversing 1,000 of them.

If a community limits itself only to the things which really warrant community-wide involvement there is less chance that people will feel hemmed in.  The resulting relatively small number of items which a person might take umbrage to are within his reach to change.

In the same vein…

Second of all, the level at which intrusive measures are enacted must be kept very low. The more intrusive the measure, the more important it is to keep the levers of power that could change those measures accessible to people.

And by accessible, I don’t mean theoretically accessible.  I mean practically, pragmatically accessible.  Again, someone has a shot if its just one issue that bothers them.  If it is one thousand issues, the ‘bargain’ is sorely strained.  That means all the times I’ve said ‘community’ so far, really meant ‘community.’  I was not invoking Statist fantasies that 300,000,000 of us constituted a ‘community.’  But ok, the word has some ambiguity.  For our purposes, though, we need to be more precise.

If your community consists of just 100 people, and your community decides that no one should be allowed to drink alcohol in that community–even in their own homes–someone who objected needs only convince 50 other people that the measure is too intrusive.  Presumably, the community had a valid, justified ‘public interest’ in passing the law/ordinance in the first place.   At any rate, at least 51 people thought so.  If one was really bothered by it, he could drive to the next town over and have a beer at a friend’s house.

Now let’s say your community consists of 10,000 people, and encompasses not just your house, but your friend’s house one town over.   Are we to believe that the ‘public interest’ is so evident that the liberties of so many people should be infringed?  Well, at any rate, at least, 5,001 people were so persuaded.  If you didn’t agree, you have a shot at persuading 5,000 people to change their mind.   You would find this pragmatically feasible.  In the meantime, if one was really bothered by it, he could drive to the next county and have a beer at a friend’s house.

Now let’s say your ‘community’ consists of 1,000,000 people.  Now, its not just your house or your friend’s house.  It is also doubtful that it was a straight-up referendum.  It was probably enacted by legislators, each one representing, say, 100,000 people each.  Now, its not a matter of persuading a half a million people to directly reverse the measure, but persuading a half a million people to elect representatives who themselves will vote to reverse the matter.  You would find this highly unpractical.  You would have to have very, very strong opinions on the matter if you were going to set about reversing the measure.  I mean, it could very well turn into your full time job.  Meanwhile, now if you want a beer, you have to go to another state.

Once a matter rises above a certain point of deliberation and enactment, it requires virtually moving heaven and hell to modify it.  Unless someone is really vested in it, he’s not going to pursue it.  But that doesn’t mean it doesn’t piss him off.  If it was the only issue that pissed him off, he might yet think about giving it a shot.  But…

Now let’s say your ‘community’ consists of 300,000,000 people.  And let’s say it is not just alcohol, but it is ten thousand other issues besides.  You have legislators in play, and courts, and bureaucracies.  Oh, and let’s not forget a critical thing that this ‘community’ has which individuals do not:  the coercive powers of an entity which has the exclusive right to use violence.

So, it is not only the case that your daily life is being infringed by a ‘community’ that is beyond your reach to meaningfully influence, but this ‘community’ can shoot you if you do not comply.  So, there is that.

The only way this could ‘work’ is if the issues subject to the consideration and determination of 300,000,000 people are truly, undeniably, self-evidently, matters that warrant the consideration and determination of 300,000,000 people.  There are, at most, probably only a half dozen matters that rise to that level.

But, this has not stopped people from enacting laws at this level touching on every aspect of human experience.  There might be 12 areas in which a ‘community’ of 150,000,001 people could justifiably impose their will on 149,999,999 other people.  But there have not been just 12 such intrusions.  There have been 120,000.  Or 1,200,000.  I mean, the pervasiveness of the scope and scale of the intrusions is so immense that I honestly can’t tell you how many there are.  And neither could you.

Often, one only discovers these intrusions when one runs trips over it unawares.  Congratulations, you broke a law you did not know exists!  The old maxim, “ignorance of the law is no excuse” only works if the ‘law’ is comprehensible and theoretically knowable.  There is no practical way–today–that any person can know all of the laws at the local, county, state, and Federal levels.  It can’t be done.  You could hire a dozen lawyers and still not achieve it.  But the fact that you would have to hire a dozen lawyers or a thousand accountants is illustrative of the basic impracticality of it all.  Just who could afford to do such at thing?  I mean, besides the Government?

And as the intrusiveness scales up in its reach, where can one go to be free from it?

The ‘bargain’ is on very, very, very thin ice.  Bizarrely, people continue to put even more weight on this already very thin ice.  But wait, there is more!

In the third place, the ‘rule of law’ requires that what is actually agreed to by the ‘community,’ via whatever mechanism has been established, is what is enforced and implemented, and, of course, is enforced and implemented.

Here you have some obvious things, like the problem of people with money and means finding their way around the plain reading of the law.  Or, people literally getting away with murder.  However, these are problems that have faced every form of governance throughout all time.  They do not necessarily chip away at the American ‘bargain.’  No, what does undermine confidence in the ‘bargain’ is when a law is passed, and the words of the law are either ignored or subverted altogether.

The whole premise of a bargain resting on the ‘rule of law’ is that the content of that law actually matters.

There are so many illustrations of the abuse of this principle I wouldn’t stop writing until I died, so let me fabricate one for illustration’s sake.  Let me go back to the alcohol idea.

Let’s pretend we have an activist who believes we should ban milk, for many of the reasons we might ban alcohol.  Well, milk and alcohol are obviously very different things.  One would not be surprised if this activist could not persuade 50 other people in his town to ban milk.  Nor did he have much success with 5,000.  Hell, he couldn’t even persuade 500,001.  No, he could not even persuade 150,000,001!

But this activist is very committed to banning milk, and will not be deterred.   Let’s say he lives in a town of a couple of thousand or so where they enacted a law restricting alcohol to adults only.  Let’s say the wording of the law enacted was, “Only people aged 21 and over are allowed to consume alcohol.”  Simple enough.  But now our activist gets his hooks into it.

The activist sees in this statute a basic parity between the idea of ‘consuming alcohol’ and ‘consuming milk.’  He sees in the age limitation a precedent and warrant for limiting which people can consume anything.  Since he failed pathetically to convince the populace, he decides to work it through the courts.  Amazingly, he finds a judge who agrees with him on the principles in play–and lets face it, part of the problem in America right now fueling the cold civil war is that a great many people also agree with the principles in play–and concludes that if we are willing to outlaw alcohol for the public interest, then we can outlaw milk for the public interest, and if we can outlaw it for those under the age of 21, why, we can outlaw milk for those under the age of 121.  And then, the truly amazing part, the judge agrees with the activist on the principle and goes further and concludes that the original statute means that no one can drink milk.  (Forty years later, it comes out that the judge was heavily invested in a company that made fruit juice.  Oh, and the ‘activist’ probably worked at the same company.)

Viola!  Over night, milk is banned in that community!  Why?  Because the statute clearly said alcohol is banned in that community.  Make sense?  Duh.

So, the people who went and banned alcohol for those under 21 are left sitting around wondering how the hell the statute they worked so hard to pass somehow resulted in a ban on milk, too.  Unfortunately for them, it is no longer a matter that can be clarified by voting on it.  No, it is in the courts, now.

On this scenario, we can hope that courts higher up the chain will see the stupidity of treating a ban on alcohol as also banning milk. In the real world (I hope!) this would be quickly dispatched with.  But let’s pretend that the next judge agrees with the first.  And the judge after that, agrees with them both.  Finally, the Supreme Court gets involved, and astonishingly concludes that the original judge’s ruling stands.   And since its been kicked up the chain, the prohibition no longer merely applies to the original community of a 100, but is now extended to 300,000,000 people!

This is an absurd illustration, but elements of it actually happen all of the time.  Random individuals or small organizations or even the government itself completely go beyond or against the actual wording of the law.  Sometimes the courts stop that cold.  Other times, the courts go along with it, and even the Supreme Court upholds it.

At that point, the people who passed the law in the first place are wondering why they even bothered.

Therein is the final nail in the coffin for the ‘rule of law.’

It is bad enough when increasingly intrusive laws are passed at increasingly inaccessible levels.  When the laws you do succeed in passing are ignored, subverted, twisted, etc, one is left with the distinct impression that the only person upholding his end of the bargain is you.  Which is no bargain at all, is it?

The entire American system was based on a ‘bargain’ in which the horrific abuses of yesteryear are curtailed by allowing people maximum liberties and only allowing Governments to get involved in matters they unquestionably had warrant to be involved in, and in the meantime, hashing through the many disagreements people will inevitably have about the remaining issues by sticking to the pain-staking process of law making, where the law actually passed is enforced and implemented as written.

The moment when a majority of Americans conclude that the ‘rule of law’ ‘bargain’ is no longer being honored is that brief moment before calamity strikes.  Its the calm before the storm. It’s that lull as people begin coming to grips with the stark realization that they were the only ones playing by the rules… and sorting out the implications.

If we are not quite in that moment, we are daily at the verge of it.  And THAT is a big part of the reason why there is fear that the ‘cold’ civil war is going to get hot.  Why?  Because many Americans have already come to the conclusion that the ‘rule of law’ is actually dead.  A farce.  An illusion.   Many have already come to the conclusion that the ‘rule of law’ is being used as a ‘weapon.’  That is, those who wish to obtain their goals by any means necessary but cannot win popular support hope to achieve it by bureaucratic machinations or judicial fiat, and they are counting on other people to go along with it for sake of the ‘bargain.’

Do the people behaving this way know that regardless of their good intentions (we will presume much of it is well-intentioned) they are achieving their aims in a way that threatens the very republic itself?  Do they understand that their victories will be Pyrrhic?   Can they appreciate that by flying in the face of the ‘rule of law’ they risk bringing us back around to the way things were before the ‘bargain’?

I don’t know if they know it or not, or if they even care.  I do know there  is no sign whatsoever that they have any intention to change their tact.

God help us all when the people who have been playing by the rules conclude en masse that there is no point whatsoever in playing by the rules if they are just going to be used against them.

To illustrate what I mean, imagine it was a basketball game.  One team, we’ll call them Team A, in good faith, plays by the rules.  The other team, Team B, has ‘good intentions,’ and in its estimation, believes the ‘rules’ often get in the way of their utopian quest.  Team A puts five people on the court to play ball.  Team B puts ten.  Team A protests to the referee that the rules don’t allow teams to have more than 5 people on the court at a time.  The referee asserts that the rules leave ambiguous about how a ‘person’ is defined.  Team B believes that 2 people counts as 1 player for the purpose of the game, and the referee upholds that.

Team A continues to play, despite being out-numbered 2 to 1.

Then Team B starts running around with the ball, clothes-lining Team A players when they get close.  Every time Team A complains, the referees uphold Team B’s behaviors.  A new reason, rationale, and pretext is offered each time.  You know, Team B is trying to save the world, or end racism, whatever.  Now Team B starts throwing punches.  The referees pretend not to notice.  Then in frustration, someone on Team A throws a punch in return.  Every referee blows his whistle right away!  The player is ejected.  Team A is wondering how on earth it is that Team B can punch people willy-nilly but Team A is called out on it.  The referees show Team A the place in the rules where punching people is forbidden.  Team A says the referee is missing the point.

Well, things progress as you can expect.  Team A is down players, and Team B has been assured it can pretty much do whatever it wants to do, and the refs are going to let it fly.  Now Team B comes out with baseball bats and starts beating in the heads of the players of Team A.  For the children, of course.  It is always for the children.  When Team A defends itself with chairs, Team B sues them, and the refs points out that the rule book plainly says that no chairs are allowed on the court.  The only people expected to follow the rules is Team A.  Team B is counting on Team A to follow the rules.  While making Team A live up to their own rules, Team B does whatever it wants.

In this absurd example, one could well imagine that eventually, long before baseball bats come out, and probably right after the refs say Team B can put 10 people on the court, Team A will decide it just isn’t going to play the game.  At least, not against Team B.  They aren’t even going to take the court.

But Team A has that ability.  It need not compete.  That is not an option for Americans who find every issue being decided upon at the national level.  The ‘court’ might have been the local town of 1,000 people.  Team B has made the ‘court’ the entire geographic region of the United States.  You can’t leave the court, even if you wanted to.  They have seen to that.  That’s one of their goals.

Team B expects that Team A is going to continue to play according to the ‘rules,’ and will use that expectation against them.  (“Make them live up to their own rules,” said Alinsky).  But, as Team B’s behavior becomes more egregious and the referees more vile, all of history points to the fact that eventually Team A is going to decide that ENOUGH IS ENOUGH.

I repeat:  God help us all when the people who have been playing by the rules conclude en masse that there is no point whatsoever in playing by the rules if they are just going to be used against them. 

Specific examples of the above to come in the next post.  But I bet the reader can think of many examples if he is even moderately informed.  He who has ears…

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