Environmental Ethics
and Public Policy
Ernest Partridge, Ph.D

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Conscience of a Progressive

Ernest Partridge

Chapter Nineteen:

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."

Anthony Lewis1

[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 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.

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 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.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 areas."4  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."5

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 ... 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 and policy.

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 argument

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...."

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.]



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."

4.      Full Text of "torture memo."  The Modern Tribune, Online Edition.

5.    Molly Ivins: "The Day the Constitution Died,"  Working for Change, June 10, 2005.

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 security."

Dr. Ernest Partridge is a consultant, writer and lecturer in the field of Environmental Ethics and Public Policy. He has taught Philosophy at the University of California, and in Utah, Colorado and Wisconsin. He publishes the website, "The Online Gadfly" (www.igc.org/gadfly) and co-edits the progressive website, "The Crisis Papers" (www.crisispapers.org).  Dr. Partridge can be contacted at: gadfly@igc.org .