I am an unabashed supporter of America. I truly believe that it’s the best of all possible places to live, and that our form of government is superior to all others ever practiced.
But it’s far from perfect.
It’s a good distance from ideal.
To be honest, it’s got some significant flaws.
When our Founders sat down and constructed our tripartite system of government with its checks and balances among the Legislative, Executive, and Judicial branches, they made certain assumptions (how could they not?) about the behavior of their descendants. First, after much wrangling, the Bill of Rights was attached. With that addendum, they recognized the risk of government infringment – even via popular, democratic government – and hoped that the Bill of Rights would remind the generations to come that some things should remain inviolate, even if it appeared to be a good idea at the time. With that change, I think, they hoped the Constitution represented the blueprint of a truly foolproof system of fair, representative government. I believe they felt that our system of a free press would act as an additional check on government corruption, and the idea of an armed populace would serve as the final one, given failure of all the other safeguards.
But they knew, I think, deep in their souls, that nature keeps making better fools.
In a recent post from Samizdata, Perry de Havilland notes that “Woodcutters cut wood. Politicians make laws.”
These simple truisms go a long way to explaining MP & blogger Tom Watson’s support for passing laws regarding the use of fireworks. On his blog, and on this blog in our comments section, the Honourable Member of Parliament for West Bromwich East calls for more regulation and makes it clear that fireworks will simply be banned if that does not produce the desired effects. And yet when talking about an incident in which a woman was injured by some idiot throwing a firework he himself notes:
Granted the little thug that conducted this assault was breaking existing laws
…and then proceeds to ignore that fact from then on. I do not know Tom Watson personally but I heard him speak in Houses of Parliament and he seems both affable and reasonable for a politician. But as Brian Micklethwait’s article today says regarding the ‘problem’ of obesity, it is only to be expected that a person whose salary depends on passing more laws to, well, always insist on passing more laws.This is something I’ve noted as well. The Frank & Ernest cartoon showing the two bums standing in a law library, staring at the stacks, where one says “It’s frightening when you think that it all started with just ten commandments” is bang on the money.
I can identify the flaw in the Constitution:
The key to understanding the American system is to imagine that you have the power to make nearly any law you want. But your worst enemy will be the one to enforce it. – Rick Cook
but I don’t see what we can do about it now. I think the flaw is that the Founders never thought that we’d forget that basic reality. It’s not like we weren’t warned:
Government, even in its best state, is but a necessary evil; in its worst state, an intolerable one. Government, like dress, is the badge of lost innocence; the palaces of kings are built upon the ruins of the bowers of paradise. – Thomas Paine, Common Sense, (1776), Chap. 1.
Aside from the Bill of Rights, they made no provisions for that eventuality. They warned us in their writings, but didn’t codify it in the Constitution itself. I guess they hoped we’d live up to their expectations, rather than down to their fears.
We’ve had 214 years since the ratification of the Constitution with politicians endlessly making laws – some good, some necessary, but the overwhelming majority at best useless, at worst malignant. As I pointed out below (along with a highly appropriate political cartoon), Henry Louis Mencken in the 1930’s described politics with deadly accuracy:
The government consists of a gang of men exactly like you and me. They have, taking one with another, no special talent for the business of government; they have only a talent for getting and holding office. Their principal device to that end is to search out groups who pant and pine for something they can’t get and to promise to give it to them. Nine times out of ten that promise is worth nothing. The tenth time is made good by looting A to satisfy B. In other words, government is a broker in pillage, and every election is sort of an advance auction sale of stolen goods.
That’s the flaw – when the only tool you have is a hammer, sooner or later every problem begins to look like a nail. If you have a body of people whose only power is to pass laws, then they’ll pass laws. About anything and everything, but in large part to: A) enrich themselves and B) ensure that they keep getting re-elected by enriching the people who get them elected. As the cartoon says, “The power to take his money and give it to you.” Not, of course, before taking his percentage off the top, though. And they’ll pass law to make it easier to get re-elected, and harder to be unseated. And they’ll pass laws to gather more and more power so that they can “Do something!” when the populace demands it.
As Perry notes:
And therein lays the problem at the heart of modern democratic states: so much of society has been made amenable to literal force (i.e. political action) that it makes little difference in the long run who is in control of the democratic means of coercion, the end result for civil liberties and several ownership (including self-ownership) will be the same. Face it, in Britain there is little to choose between Tory Michael Howard and NuLabour David Blunkett when it comes to which of them has abridged more civil liberties whilst serving as Home Secretary. Likewise, Janet Reno may have presided over the mass murder of a bunch of wackos in Waco, Texas, but is anyone really going to claim John Ashcroft is not continuing the process of shredding the much vaunted Bill of Rights?
The problem is the whole meta-context of seeing as axiomatic that politics is always acceptable just so long as it gets the imprimatur from a plurality of the politically engaged. Until enough people are willing to look to the moral basis of a law and simply refuse to accept the legitimacy of laws just because they are laws, we will always have politicians singing their siren song for your votes to empower not you, but themselves, by offering to solve your every problem with more laws. It is not enough to just not vote for them, you must find innovative ways to not cooperate with them.
“Until enough people are willing to look to the moral basis of a law and simply refuse to accept the legitimacy of laws just because they are laws….” THAT is the basis behind Jury Nullification. That is the basis behind civil disobedience. But look, for example, at this comment left in response to the recent self-defense incident in NYC involving an 80 year-old man using a .38 revolver to defend himself against a mugger (Via Pervasive Light):
The law is the law.
It may not be right or just, but it is the law.
“Justification” is not absolute.
“Necessity” is not excuse enough do [sic] violate any law.
If you break the law, then you should be prepared to face the consequences.
I disagree with the law, but it is the law. Until overturned, it should be obeyed (or those who decide to disobey it ought be ready to pay).
Follow the Law said @ 11/07/2003 02:03 PM EST
Another poster, blogger Amy Alkon says:
Regarding the charges against this guy, the law is the law. Guns must be registered.
What we were protesting was the fact that Mr. Campbell had both of his firearms confiscated by The State, and was charged with not having them registered. But “Follow the Law” doesn’t see a problem with that. In fact, he disavows Jury Nullification in a later response:
And if you honestly think the law is just what the jury says then I guess all white juries letting off fellow whites for lynchings was ok, too. After all, the jury is never wrong and they decide the law in a vaccum.
I side with Rev. King: break the law, but do it happily and take your punishment if you think you are just with a smile.
He’s got a point. Jury Nullification is an evil thing when it condones evil. But that is a failure of The People, not The Law. “Follow the Law” is one of those who Perry protests against. One of the masses who is “amenable to literal force”. He (or she) accepts the legitimacy of laws because they are laws – and so does Amy. Is there no point for people like this at which a law should rejected? How about when the punishment is ridiculously excessive? Like, say, ten years without parole for an 18 year-old because he had consensual sex with a minor? Confiscation of your very expensive personal property because you didn’t get a $200 tax stamp? Having your land sold out from under you because – while the state conformed to the letter of the law – you didn’t manage to pay your taxes on time? Having your school raided by the cops – and guns stuck in your face – because somebody was selling drugs in your school? And, of course, having your only means of self-protection confiscated because you couldn’t afford the time and money required to even apply to the State for their permission.
And those are only this week’s examples.
And what about the chilling of our freedoms by these innumerous laws? What about those of us unwilling to “do it happily and take our punishment?” As the “Geek with a .45” put it recently:
The fact that things have gone so far south in some places that people actually feel compelled to move the fuck out should frighten the almighty piss out of you.
Ten or fifteen years ago, I would’ve dismissed that notion, that people were relocating themselves for freedom within America as the wild rantings of a fringe lunatic, but today, I’m looking for a real estate agent.
When was the last time you built a bonfire on a beach, openly drank a beer and the presence of a policeman was absolutely no cause for concern? Hmmm?
And what other laws has Big Brother passed that you can think of that were done merely to protect us from ourselves?
And we’re supposed to “do it happily” and take our punishment “if we think” we are just.
I don’t fucking think so.
Claire Wolfe was right – “America is at that awkward stage. It’s too late to work within the system, but too early to shoot the bastards.”
The real problem with the Constitution? The Founders never imagined we’d become sheep.
Postscript: Dave at Pervasive Light raised $1265 for Lester Campbell. I hope Mr. Campbell buys another .38 with some of it.