When the Law Goes Flat
Something much more profound underlies this terrible
episode [at Abu Ghraib prison]. It is a culture of low regard for the
law, of respecting the law only when it is convenient. Again and
again, over these last years, President Bush has made clear his view
that law must bend to what he regards as necessity. National security
as he defines it trumps our commitments to international law. The
Constitution must yield to novel infringements on American freedom."
[The President] shall take care that the laws be faithfully executed.
Constitution of the United States,
Article 2, Section 3.
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
"[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.
I will examine five of the many offenses by the Bush Administration against
the rule of law: the election of 2000, the unequal enforcement of the law,
the violation of international treaties, the infringement of civil
liberties, and the attempt through so-called "tort reform" to deny ordinary
citizens the protection of civil law.
The 2000 Election: To begin, we must never forget that this
administration was conceived in lawlessness. Thousands of Florida voters,
overwhelmingly Democrats, 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 Congressional 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
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.2
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.3
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 white
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
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
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
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 ... 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."6
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. As I
argued in Chapter 8, an 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.
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 have legislated "tort reform" which makes access to the courts
prohibitively expensive for ordinary citizens. In addition, this so-called
"reform" will result in "settlements" unlikely to fully compensate for
damages, and will exact costs to large corporations sufficiently small to
have virtually no deterrent effect. Such "reform" is truly 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.
Relativism in the Theory and Practice of Law – the Clinton Impeachment.
In Chapter 13 I argued that, in both the conduct of personal life and in the
execution of social policy, moral absolutism is incoherent and unworkable.
On the other hand, a critical moral relativism, far from implying that
“there is no right or wrong,” supplies a firm foundation for moral conduct
The absolutism/relativism controversy carries over to the theory and
practice of law. However, lawyers and legal scholars are too sophisticated
to “buy into” the simplistic formulas of absolutistic ethics. So the legal
counterpart to ethical absolutism is formalism – the theory that the
abstract formal statement of the law (as codified “in the books”) takes
precedence over the contingencies of the particular circumstances before the
court. Ethical relativism is reflected in legal contextualism – the theory
that “the letter of the law” must be applied with consideration of the
unique contingencies of each particular case.
This distinction is exemplified in the attempt by Congressional Republicans
to impeach President Bill Clinton. As we all know, the impeachment (i.e.,
indictment by the House) succeeded, but the Senate failed to convict and
remove Clinton from office.
In the House impeachment debate, Henry Hyde opened his summation with the
familiar words, "... It's not a question of sex ... its not even a question
about lying about sex.... The matter before the House is a question of lying
under oath." Thus the lie is separated from the context of the lie, and the
process that led to the lie. The simple fact of the lie, apart from the
context of the lie and circumstance that prompted the lie, suffices as
grounds of impeachment. This is a formalist conception of the law.
The President's defenders, on the other hand, point out that the lie has
nothing to do with the conduct of his office, and that his offense is
mitigated by the fact that it was the result of a "perjury trap" involving
illegally obtained evidence and possibly coerced testimony (among numerous
other violations of legal codes and possibly laws). This is the
contextualist view of the law.
The contrast might be illustrated by the following two cases:
A citizen is brought before a legally constituted court, and
willfully lies under oath.
A military officer attempts to assassinate the legally elected
leader of the nation.
According to legal formalism, the citizen is guilty of perjury and the
officer of treason. "The majesty of the law" allows no other interpretation.
Now let's add some context: in the first case, the court is in Nazi Germany,
and the citizen is asked if he knows of any Jews that are hiding from the
Gestapo. In the second case, the officer is Klaus von Stauffenberg and the
leader is Adolph Hitler.
To this, I would urgently add that I would in no way equate President
Clinton with Colonel von Stauffenberg, or Clinton's evasion under oath with
civil disobedience in the Third Reich. But if one concedes that the above
examples demonstrate the principle that context can make a difference in an
evaluation and administration of justice, then we can proceed with our
And in fact, the law recognizes context in its numerous specifications of
"mitigating and aggravating circumstances," and in "degrees” of an offense"
- for example, from "justifiable homicide" through "manslaughter" to "first
degree murder." Likewise with other crimes. “Discretionary sentencing” is
another legal relativism which regressive lawmakers, with their absolutist
world-view, seek to override with mandatory sentencing requirements such as
the “three strikes” law.
In addition, the law recognizes a "defense of necessity," whereby the law
might be legitimately violated to prevent a greater harm (e.g., exceeding
the speed limit to get a critically ill person to the hospital, or
disregarding a “No Trespassing” sign to rescue a person in danger or to put
out a fire). This would be an application in the law of the “relativism of
conflict” that was discussed above.
Furthermore, legal practice recognizes that "fruit of the poisoned tree,"
such as testimony that is obtained illegally, or through coercion or in the
absence of legal counsel, is inadmissible in a court of law. (How often have
we heard "the Miranda warning" on TV Cop shows?).
The relativism of the law is derived from the fact that the law is
irreducibly practical, in the sense that the law is required to apply
general abstract rules (laws) to particular cases. And as we argued in
Chapter 13 (“the relativism of application”) the application of abstract
rules to particular cases necessarily involves ambiguities. Of course, some
cases, such as the conviction of Ted Bundy, are so clear-cut as to approach
“absolute” justice. But so long as empirical evidence falls short of
absolute certainty (in principle, forever) and because the meaning and
interpretation of the law is subject to the limitations of natural language,
legal perfection and absolute justice will forever elude us.
In the impeachment trial, President Clinton was prosecuted by the
Republicans according to a theory of legal formalism, and defended under a
theory of legal contextualism. According the formalist, this case " is not
about sex or lying about sex, it is about lying under oath." Never mind the
content or the provocation: "a lie is a lie is a lie" - whether it be a lie
under oath that condemns an innocent man to the scaffold, or whether (as in
the Gestapo case) it spares the life of the innocents, or in this particular
case, the lie attempts to spare the individual, his family and his paramour
the embarrassment of the public disclosure of a sexual indiscretion. All
such lies, claims the formalist, must be equally prosecuted, lest we
"undermine the rule of law."
According the contextualist, we can not pass fair judgment on the act unless
we know the content and the provocation. And if the content involves nothing
more than private but legal misbehavior, and if the lie was the result of an
elaborate perjury trap, devised with illegally obtained evidence, and if the
investigation was motivated, not by the pursuit of justice, but rather the
objective of destroying a political rival, then the accusers, not their
target, pose the greater threat to the integrity of the rule of law.
As noted above, the practice of law and our system of justice is, in fact,
contextualist. Moreover, the general public, unmoved by the elaborate
Kantian arguments of the formalists, is generally persuaded by the
compelling common-sense of the contextualists - the same common sense that
excuses the "violations of law" by the conscientious Germans who refuse to
speak the truth to the Gestapo. Similarly, to the consternation of the
Republicans, the public was incensed by the attempt, in the name of "legal
purity," to undo the results of two legal elections. All this for an offense
no more consequential than a sex-lie.
In fact, when it suited their strategic purposes, Clinton's accusers
embraced contextualism, as they put aside their formal purity for political
advantage. Chairman Henry Hyde did just that during the "Iran-Contra"
hearings in 1987, when it was his political allies that were telling the
lies. The then-contextualist Hyde condemned the "disconcerting and
distasteful whiff of moralism and institutional self-righteousness" that was
conspicuous among President Reagan's critics. And in defense of Col. Oliver
North and other perjurers before the Congressional Committees, Hyde remarked
that "It just seems to me too simplistic [to condemn all lying]... In the
murkier grayness of the real world, choices must often be made...."7
In the hands of the Clinton's accusers, it seems, legal formalism was
like Arthur Schopenhauer's taxicab: a useful device to get one to his
destination, whereupon, after serving its purpose, it is dismissed. For
today, these same accusers refuse to hold George Bush and his administration
accountable for their lies and their crimes.
In Conclusion: 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.8
[Ahead in this chapter: A critique of “originalism” and “strict
constructionism” in the law. Interpretation, and “a living Constitution.”
Contract theory and the law.]
NOTES AND REFERENCES
1. The Roots of Abu Ghraib: A
President Beyond the Law.
2. See my
“A Day of Infamy” and
“We Dissent,” This Website.
3. This quotation, apparently
removed from the internet, is found in my collection of responses to Bush v.
Gore,. "We Dissent."
Full Text of "torture memo."
The Modern Tribune, Online Edition.
5. Molly Ivins:
the Constitution Died," Working for Change, June 10,
6. Taylor, "The Torture Memos: Putting
the President Above the Law," National Journal, June 12, 2004.
7. David G. Savage, "Hyde View on Lying
is Back Haunting Him," Los Angeles Times. December 4, 1998.
8. “... when a long train of abuses
and usurpations, pursuing invariably the same Object, evinces a design to
reduce them under absolute Despotism, it is their right, it is their duty,
to throw off such Government, and to provide new Guards for their future