When Law Fails
June 13, 2002
By Jeremiah Bourque
are we to do when the law does not protect us?
International law was originally intended to regulate war.
Post-WWII international law was intended to make war itself
illegal. For all the pomp and ceremony, those who wail against
the increasing irrelevance and disregard of international
law, fail to attract great outrage for a simple reason: It
is not becoming irrelevant; it already is.
A combination of recent events has brought this irrelevance
into full view. First, the United States' complete contempt
for any international agreement. Second, Israel's complete
contempt of the international status of the so-called occupied
territories, backed in full by the United States. Third, the
open threats of nuclear holocaust taking place between India
Domestically, faith in the political neutrality of the judiciary
continues to plummet. The distinct impression being gained
by many observers is that conservatives are conducting a Long
March through the judiciary. Once poised to dominate, they
will tear down landmark decisions establishing the power of
the federal government over the states, laws that are neutral
to or in any way disfavor mainstream Christian religious morality,
and implement a radical fundamentalist theory of law intended
to return society to the social purity of the 18th and 19th
centuries. This movement is known, and glowingly praised by
the President, as "strict constructionism". The main association
of conservative legal minds, the "Federalist Society", seeks
a version of federalism that smacks of confederalism.
To take only one highly visible example, the freedom of women
to obtain abortions may be overturned someday. Once the constitutional
ruling is overturned, the burden of the legalization or the
banning of abortion will fall to the individual states. Thus,
a 5-sided political war will emerge across America, with the
issue sharply dividing opinions. Vast swaths of the "heartland"
might ban abortion entirely.
If this happens, and those who support abortion, most vehemently
those women who desire abortions themselves, will have no
legal recourse. When the law fails, is it the duty of the
individual to simply accept this? Or is more to be done?
Regardless of the ethical question, many women would then
obtain illegal abortions. A lucrative black market in abortions
would develop, similar to the narcotics trade, in addition
to the Prohibition era, when Al Capone ruled the streets of
Chicago, earning immense profits from illegitimate alcohol
What happens when international law fails?
The solution preferred by conservatives is, to put it simply,
the law of the gun. Mao's dictum concerning power will be
used to justify ruling the Wild West by having the most powerful
army, the greatest weapons, and the most budgetary waste.
(If spending alone won wars then the Axis powers would have
lost within three or four months of America's entry into WWII.)
The proponents of force will argue that there is simply no
choice but to be the biggest, baddest bully on the block.
Obviously, this means nuclear weapons, an aggressive policy
for the use nuclear weapons, and an aggressive foreign policy
intended to lead to the domination of the near region, or
in the case of the United States, domination of the entire
globe. However, the elementary parts of the strategy are clearly
employed by India and Israel. This means that the nations
most determined to end the power of law over international
relations are the best positioned to exploit its loss.
Laws of war are likely already destroyed beyond repair. The
treatment of Al Qaeda and Taliban captives in Camp X-Ray is
establishing a worldwide standard for the treatment of foreign
soldiers. Already, the extraordinary claims by the United
States concerning its three hapless soldiers snagged at the
border of Kosovo by Serbs (without firing a single shot, it
should be noted), where the US argued that though there was
no war, the mere fact that these were armed Americans should
prompt their treatment as POW's, is being used as a bludgeon
to beat America's positions on captives senseless. The hard-won
rights of captive soldiers are being undermined by the death
of declared warfare, the discrediting of armed conflict even
between nations as simply fighting "Terror", and simple apathy.
Domestically, is the only means to combat tyranny, becoming
an NRA member and buying a gun? Serious people - and I mean
Democrats here - have begun asking this question, without
the sort of humor that one might think this would demand.
In each case, there is a common solution: Applying the mind.
Even though that worldwide law is, at the height of its complexity
and theoretical power, being reduced to the standards of the
1800's, this does not necessitate the complete abandonment
of ideas such as diplomacy, morality, public ethics, and simple
persuasion. Of course, this would require some sort of intellectual
will, clarity, consistency, and most of all, memory that goes
beyond yesterday's spin cycle.
Impossible? Not at all. Improbable? Of course.
Domestically, the will to stand tall and say, "I do not approve,"
is vital to resisting evil and stupid policies (two distinct
and, sadly, not always separate categories). Resorting to
force is to completely abandon the idea of civilized society.
This would say more about the person taking up arms than about
society itself. If any good is to be done, it must be done
with the word, not with the sound of gunshots.
In both cases, arguments that continue to be based on laws
considered irrelevant or faulty will fall on deaf ears. When
law fails, arguments must be framed in terms of justice, logic,
and morality, in terms that can be understood as universal,
or as near to universal as possible.
I argue this in part precisely because the President, and
British PM Tony Blair, have long argued their positions are
based first on morality, and last on international law, saying
the right to self-defense trumps all else on the moral scale.
This implies that law only applies to bad people. No good
can come from such a policy.
People have rights. Does a state have rights?
Does a state's rights supercede those of the individual?
Does the state have a right to self defense that is absolute,
greater than any written law, constitutional or otherwise,
that may be exercised by the Executive Branch in times of
According to the decisions surrounding Lincoln's waging of
the Civil War, the answer to these questions is, apparently,
yes in every case.
My discovery of this has not been especially kind to my system
What is the point to arguing that something is unconstitutional,
when precedent says, nothing that the state does to preserve
itself, is illegal, no matter what the Constitution, or statute
law, or case law, may say to the contrary? This seems to be
an argument based on the idea of natural law applying to states,
a disdain of anarchy, and the view that justice cannot take
place without order.
These may be valid views as a matter of philosophy, but this
isn't just philosophy right now. Clearly, the likes of Dick
Cheney are very full of themselves these days. Why isn't the
administration rattled by the claims of unconstitutionality
and illegality? Because, legally speaking, the state has a
right to self defense that trumps all law, and Bush has declared
that the US is in a state of war.
Machiavelli apparently wrote that states that do not permit
some form of dictatorship in times of crisis tend to be swept
away. We know this to be true; it is why the US is, as we
are often reminded by conservatives, a Republic and not a
Democracy. This being the case, it has been assumed, by Lincoln,
by Wilson, by FDR, and by, it seems, every President operating
in the shadows of these giants, that when there is a threat
to America, that all is permitted, and that civil rights and
freedoms are luxuries afforded by the maintenance of security
and order. It's just a matter of containing the political
fallout and window dressing.
Apparently, if you dig deep enough into legal precedent,
particularly the Civil War, this is easily discovered.
So why wasn't I told?
I've spent years listening to harping and whining and sanctimonious
ranting concerning all sorts of rights, freedoms, guarantees,
and so on. Why didn't someone say, clearly, that under certain
conditions, these guarantees are null and void, because the
Supreme Court has said so? If this is what we the People are
supposed to expect from the United States, and indeed, most
Western states, then why doesn't someone damned well say so!
Even worse are the psychological implications. This doctrine,
of treating the state like a corporation, making it out to
be a legal person with inherent rights, such as the right
to defend itself against actual flesh and blood people, humanizes
the state like plant lovers humanize their plants, ascribing
human features to them. In the hands of a fanatic, this legal
doctrine becomes a reason to project his own hopes and dreams,
his own sense of self, onto the state, and to essentially
glorify the state to cover his own insecurities. The state,
in essence, becomes a sort of hero, stronger than Superman,
flashier than Hulk Hogan, sexier than... oh, let's stop there.
The point is, people begin to treat the state like people
of faith treat their concept of God.
Having made this determination, the bloody wars of the 20th
century come into perspective. When the state becomes a substitute
for God, and is essentially hero-worshipped by vast masses,
these masses become ready to wage war against other masses
of people, making the power, glory, and dignity of the state
a matter of personal prestige.
The religious wars of the Renaissance never ended. They just
rearranged the deck chairs, gave people more rights and freedoms,
and more guns, and gave the peasants and laborers more of
a stake in the outcome, along with convenient national myths
substituting for religion. Of course, ships and armies are
blessed by God, as people understand God to be, and all nations
at war think that the gods are on their side, as the Greeks
taught us so well. As the Crusades became the religious wars
of the Renaissance, these wars then became the nationalist
struggles, with Communism and Capitalism both treated as de
facto religions, and viewed jealously as competition for the
souls of man.
That's why something that Bush slipped into his West Point
speech really worries me.
Bush apparently said that there is only one system for the
progress of man that survived the 20th century.
Upon reading that, you may or may not immediately grasp the
vast implications of this statement. He also, of course, added
such things as, there is but one moral truth, and this moral
truth does not change with location and culture. (Anyone doubt
that he believes that this moral truth is the Christian moral
But really, what it says, is that he thinks that war purified
the Earth, and that Capitalism survived through a process
of natural selection and divine destiny.
Now he's waging a war of civilizations against Islam, confident
that the Christian civilization will triumph, because it is
This bothers me.
I've had a chance to go over Phil Gramm's comments
at that Republican convention in Texas where he made comments
that seemed like courting a race war.
What he actually said was, in essence, the Democratic "dream
team", a pair of a Hispanic and a black for running the state,
was a nightmare dedicated to severing the bonds that held
Texas and America together. These bonds, it was very strongly
implied, were masculinity, Christianity, and white skin.
The implication is that if Texas, or Washington D.C., were
run by Hispanics, especially Hispanics speaking Spanish, then
it just wouldn't be Texas or America anymore.
I guess now I know why they think they need all those guns.
I'm no less disgusted, of course.
I also note the prayer at the convention for an all-Christian
judiciary, and opposition to the "myth" of the separation
of Church and State.
So much for small government.
Guess they only disliked the size of government when it actually
was meant to help people. Now that the Church and State can
join together again, neither is under any obligation to be
merciful, except, of course, in word.
What do we want in politics?
It sounds like such an elementary question. Yet, the question
cannot be answered until one knows what "we" stand
In my writing these Daily Whopper articles, I have usually
been very careful not to use the term "we" very
often. When I have used it, I have been careful to be of relatively
high confidence that the term refers to "we" North
Americans, "we" Westerners, "we" who are
not Republicans. Yet rather than identify myself as a liberal
Democrat, I have remained silent on this issue, largely because
I am not. I am simply not a Republican.
While I have rejected Republican politics, largely because
I no longer think much of economic conservatism, the only
part of conservatism I was willing to take seriously, I never
accepted all the presumptions and sense of greater purpose
that Democrats tend to be infused with. I am a skeptic, a
man of little faith, a man of little capability to acquire
faith in much of anything. When people huddle and comfort
each other, I become uncomfortable. When people speak of reassurance
and mutual support, I wonder if I, too, require it, or desire
Yet at what cost? My own instincts cry that the herd cannot
be trusted, be it nasty and uncouth or simply angry. I&'ve
never been able to accept comfortable untruths to hold me
over. I&'ve tried, and I just don&'t have the constitution
for it. I can&'t accept the easy way, clamping down on something
that "I know is right" and refusing all other counsel.
It is difficult for me to give everything to support one "side".
There are so many flaws with both major political parties
that supporting one or the other can be quite difficult.
I am a skeptic about the power of government, and of "good
government". The prime lesson I learnt from my studies
of economics is not that Keynesian demand manipulation works,
but merely that it&'s just as silly as the alternative: building
factories as if they will man themselves. ("He builds
fortresses in vain who expects them to defend themselves."
Or something like that.)
In many other issues, it is not radicalism that I support,
but rather, a wise balance. Some things simply require compromise.
Other things require something that is not a compromise, but
is a balance between radical options. Overall, there has only
been one principle that has consistently guided me: The best
result for the most people.
Take the economics angle: Supply side economics basically
says, build enough factories, and customers will buy. Demand
side economics basically says, make people rich enough, and
factories will build themselves. As in dance, it takes two
to tango. Both sides are wrong. A balance of support for industry
and support for workers is what is required for building prosperity.
Yet those trapped by theories created by those we call "great
minds" largely disregard such a solution.
For the most part, such failures are relatively harmless,
balanced by the tug of war taking place with the other side.
Thus, society continues, if not always smoothly.
Politics ultimately supercedes law. This is the only practical
conclusion of my research. If Americans respected the idea
that order is more important than freedom, America would still
be ruled by British royalty. Yet the doctrine used to defend
the integrity of the nation is ultimately founded on doctrines
common to other states, many of which have been regularly
condemned by Americans as hypocritical and corrupt. The same
doctrines that fueled Europe's holy wars had become infused
into the secular American state, ultimately cementing the
view by America's religious right that both Soviet Russia
and the American state were essentially competing religions,
to be resisted and constrained by any means necessary.
Ultimately, it is not by a focus on human rights, legal rights,
constitutional rights, that a nation can be saved. Ultimately,
the concept of the rights of the state itself, and the theory
that the rights of the state supercede those of the individual
for the greater good, trumps all lesser rights. When you put
the right of the United Kingdom, or France, or China, or the
United States, to survive as a state, besides the right to
a fair trial, the right to an attorney, the right to free
speech, the right to freedom of conscience... there is a full
and frontal expectation that the rights of the state shall,
and must, triumph.
This is not just, but it is the way that order is preserved.
Thus, the theory by which the United States is able to use
the sort of means that Lincoln used without constitutional
niceties, can be used to essentially argue that order supercedes
justice, and that there can be no justice, without there first
Granted... anarchy makes justice rather hard. This is a difficult
issue. It goes to the core of personal beliefs vs. a belief
in the necessity of law and order. It asks if justice is a
function of the state. There is also another related question:
If justice is not a function of order, is it still vital to
act as if it is, in order to preserve society at large? And
also, is that society worth saving?
And more to the point: If that society isn't worth saving,
do we have to save it anyway, out of a fear of anarchy?
I do not pretend that these are simple questions. What is
the proper balance? While I take a break from writing from
a left-wing perspective, I must think more deeply about these
issues. After all, my loyalty lies more with justice than
with law. This said, I've spent a great deal of effort arguing
for the sanctity of the law. I did it while a conservative,
and I will continue to do it no matter my political affiliation
(if any). The law matters to me. Yet it seems as if the law
matters insufficiently to the law itself, when push comes
to shove and the constitutional system is pushed to the point
of requiring radical action for survival.
Obviously, many of the actions being criticized in the War
Against Terror, ought to be criticized because, in addition
to eroding freedom and human rights, they are criminally stupid.
This said, the argument I am describing clearly makes these
actions, even if violating the letter of the law, legal.
That does not make them right.
Let us be clear: British rule of America was legal. It was
opposed by doctrines of justice and morality. What, I ask,
is liberalism, without justice and morality? I do not mean
morality in the sense of Christianity; I mean morality in
the sense of mercy. Perhaps, ultimately, the only way to combat
the creeping power of a cruel state, is to expose it as a
weapon being swung around by amateurs and harming the innocent
as well as the guilty.
If it is not right, then its not being right, matters.
Arguing anything less is a waste of breath. Isn't it?
That, at least, is the question I plan to ponder.
Jeremiah Bourque is taking a hiatus while pursuing his Japanese
> English translation career, working on a role playing game
book for R. Talsorian Games based on the anime series "Mobile
Suit Gundam". Thanks for the compliments. I've enjoyed my
run and will resume writing in some capacity once I wrap up
this project. Gotta put food on the table and DVD's in the
player, after all.