When the Law Goes Flat

August 6, 2004
By Ernest Partridge, The Crisis Papers

Amidst all the outrages of the Bush Administration - raiding the Federal treasury, starving education and social services, trashing the environment, launching an aggressive war - it is all too easy to overlook the erosion of the rule of law. Yet the law is the institution that most immediately affects us all, because the law, as established by the founders of our nation, protects us all from the reckless power of abusive government - from what Hamlet called, "the insolence of office."

To be sure, laws can be petty or even silly, especially in local jurisdictions. Far worse, they can be cruel and unjust when enacted by oppressive regimes such as Nazi Germany or the Soviet Union. But this is not the case in the United States of America. Our laws are founded on our Constitution, ratified with "the consent of the governed," and devised, in the words of the Preamble, "in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty." When our courts are functioning properly, laws judged to be in violation of these Constitutional objectives and protections are ruled null and void.

The protection of the law, and the loss of that protection, is the central theme of Robert Bolt's play and movie, A Man for All Seasons, which dramatizes the life and martyrdom of Thomas More. In the play, More warns his son-in-law:

[Would you] cut a great road through the law to get after the Devil? ... And when the last law was down, and the Devil turned round on you, where would you hide..., the laws all being flat? This country is planted thick with laws from coast to coast..., and if you cut them down... do you really think you could stand upright in the winds that would blow then? Yes, I give the Devil benefit of law for my own safety's sake.

Thomas More's offense, which eventually cost him his life, was his refusal to recognize the supremacy of the English monarch over papal authority. More, a legal scholar, believed that so long as he remained silent, the law would protect him, even from the sovereign, Henry VIII. But when that law was "flattened" - as it became subordinate to and a political weapon of that sovereign - Thomas More's fate was sealed.

The fate of Thomas More, and of countless others throughout history who have fallen victim to the corruption of law by the wealthy and powerful, must stand as a warning to all Americans today. For the evidence of the corruption of law in the hands of the present administration and its party is compelling to any who have the eyes to see and the judgment to appreciate the threat. Put bluntly, the Bush administration is literally an "outlaw" regime - it has placed itself outside the law that both constrains and protects the rest of us.

The 2000 Election

To begin, we must never forget that this administration was conceived in lawlessness. Thousands of Florida voters were unlawfully "purged" and denied access to the polls. Military ballots postmarked past the deadline were counted. In Miami-Dade county, an official act of ballot counting was shut down by a "yuppie riot" of GOP staff members - an event as blatantly illegal as the disruption of a trial or of a debate on the floor of the Congress. Yet no one was ever charged, much less punished, for this lawlessness.

Article Two, Section One of the U.S. Constitution explicitly states that "each State shall appoint, in such manner as the legislature thereof may direct, a number of electors." Thus it is the business of the states, as interpreted by the Supreme Courts of the states, to select the presidential electors. Accordingly, the Supreme Court of Florida ordered the continued counting of the ballots, and that decision was upheld by two appellate federal courts.

No matter. In a legally indefensible ruling ("limited to the present circumstances"), clearly concocted with the sole purpose of putting George Bush in the White House, five Republican judges on the Supreme Court ordered an end of the vote counting and, in effect, selected the President. (See my "A Day of Infamy," and a collection of legal and journalistic responses to Bush v. Gore: "We Dissent.").

Subsequently, more than 600 Professors of law signed a petition of protest, which included the following:

We are Professors of Law at American law schools, from every part of our country, of different political beliefs. But we all agree that when a bare majority of the U. S. Supreme Court halted the recount of ballots under Florida law, the five justices were acting as political proponents for candidate Bush, not as judges.

The Unequal Enforcement of the Law

Carved above the entrance to this same Supreme Court, are the words "Equal Justice under Law." Would that it were so. Unfortunately, there are two kinds of "justice." There is one standard of justice for the wealthy murderer with a team of high-priced attorneys, and another standard for the poor murder suspect with the court-appointed lawyer.

There is one law for wealthy users of powdered cocaine or oxycontin, and another for poor black users of crack cocaine. There is one law for the corporate executive who fixes energy prices, another for "Grandma Millie" who must pay those inflated prices. There is one law for the Republican donor who cheats thousands of taxpayers of billions of invested dollars, and another for Democratic contributor Martha Stewart, caught "dumping" $50,000 of stock on an "insider tip."

There is one law of perjury for Casper Weinberger, Eliot Abrams and Oliver North, all of whom escaped fine and imprisonment due to "technicalities" and presidential pardons, and another law for President Bill Clinton caught, at last, in a "perjury trap" over a non-material sexual indiscretion.

The Violation of International Treaties

Article Six of the Constitution decrees that "all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." But not, apparently, to this Administration which has casually ignored and violated numerous treaties at its convenience.

The most outrageous has been the violations of the Geneva Conventions in Iraq, and specifically at the Abu Ghraib prison. In a March 6, 2003, memo from the Pentagon "working group," we read: "In light of the President's complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the President's ultimate authority in these areas."

Regarding this memo, Molly Ivins wrote: "Quite literally, the president may as well wear a crown - forget that 'no man is above the law' jazz. We used to talk about 'the imperial presidency' under Nixon, but this is the real thing."

Civil Rights

George Bush's violation of the rights of citizens is open and flagrant. Until very recently, at least three U. S. citizens (that we know of) were incarcerated without specific charges, without access to counsel, without expectation of a jury trial - all this in violation of the Fifth, Sixth, Seventh and Eighth Amendments to the Constitution (the Bill of Rights).

Even worse violations of basic judicial rights were visited upon the non-citizens held at Guantánamo. But now, at last, the courts have dug in their heels, as the very Supreme Court that appointed Bush to his office finally drew the line and ordered that U.S. citizen Yaser Hamdi be allowed access to his lawyer and be formally charged. (The Supremes "punted" the similar case of Jose Padilla back to the state court.)

Even so, the Bush Administration's aspirations to "transcend" the law remain a constant threat. Last month the conservative legal journalist, Stuart Taylor, Jr., wrote:

These warped analyses [by the Defense Department legal team] are not just the work of a few lawyers carried away with clever circumvention of the law. They reflect an attitude deeply entrenched in the Bush White House - including Bush and Dick Cheney as well as (White House counsel Alberto) Gonzales - that whenever the president invokes national security, he enjoys near-dictatorial powers and is quite literally above the law. ... These perversions of the law would allow Bush to seize, imprison, and torture anyone in the world, at any time, for any reason that he associates with national security. Little did the Framers suspect that their Constitution would be twisted by a president to claim powers more appropriate to Roman emperors, Russian czars, and King George III.

Anyone claiming to be an authentic "conservative" who can still support this president is engaging in an extraordinary feat of mind-bending.

Tort Reform

Finally, we come to the issue of "tort reform," brought to public attention by the selection of "trial attorney" John Edwards as the Democratic Candidate for Vice President.

Libertarians, and in particular the libertarian faction of the Republican party, have long contended that tort law - court mandated compensation for damages - would accomplish all that government regulation attempts to achieve, and that it would do this more effectively and at less cost. Unfortunately, history clearly testifies that it simply won't work. Furthermore, the attempt to have tort law take on the same task as regulation would entail a re-establishment of the same sort of bureaucracy that the libertarians deplore.

This is a bold charge that I make against the libertarian "tort and court" remedy. Because I have defended this criticism of libertarianism at length in a published article, "With Liberty for Some," I will not repeat that argument here.

But just suppose that the libertarians are right: that the work of the EPA, the Food and Drug Administration, the Securities and Exchange Commission, and other regulatory agencies, can all be accomplished through the threat of personal lawsuits against private corporations.

This proposed alternative to government regulation is insincere, to say the least of it. For if the Republicans really believed that the courts could and should protect the citizens and consumers from injuries from the corporations, then they would be in the vanguard of those who would at least retain, and perhaps even increase, the legal penalties imposed upon offending parties and corporations. And, of course, the opposite is the case.

Instead, they propose "tort reform" which would make access to the courts prohibitively expensive for ordinary citizens. In addition, this so-called "reform" would result in settlements unlikely to fully compensate for damages, and would exact costs to large corporations sufficiently small to have virtually no deterrent effect. Such "reform" would truly be a "flattening" of the law, leaving little or no protection for private citizens from corporate abuses, damages and injuries. But, of course, that's precisely the objective of "tort reform."

In short, the GOP and its corporate sponsors want it both ways: no protection of the consumer-citizen through enforcement of government regulation, and no protection of the consumer-citizen through punishing court settlements. The corporation as screwer - the citizen as screwee.

Equal Justice Under Law

The founders of our Republic resolved that the inalienable rights of every citizen would be protected by the equal application of the rule of law. They understood that in a well-ordered polity, justice, embodied in the rule of law, is above politics; the law sets the rules and defines the constraints of acceptable political activity.

The law is the "referee" that assures "fair play." And it does so blindly, with equal fairness to the various factions. The law protects the individual citizen from the abuse of power, from the lowliest citizen to the President. This is what Robert Bolt's Thomas More had in mind, when he said that "I give the Devil benefit of law for my own safety's sake."

The blindfolded Lady Justice makes no distinctions: all are to be protected equally by the law. And when the blindfold is torn off and the scales of justice are weighted in favor of the rich and powerful, and against the opposing parties and dissenting citizens, then the lowliest citizen is not safe.

Worse still, when that citizen comes to appreciate this fact, he will no longer look to the law for justice and protection. Law, for the citizen, will then have ceased to be his protector, and will instead have become his oppressor - a political tool of a sovereign that has thus forfeited his right to govern. "When in the course of human events" such misfortune befalls a public, the time has come to replace the government - peacefully if possible, but forcibly if necessary.

If you disagree then your argument is not with me, it is with all the signers of the Declaration of Independence.

Dr. Ernest Partridge is a consultant, writer and lecturer in the field of Environmental Ethics and Public Policy. He publishes the website, The Online Gadfly and co-edits the progressive website, The Crisis Papers.