George Washington Lawprof Jonathon Turley, well-known for his brief posts on legal oddities and ironies, provides a longer, more substantive offering in this USA Today op-ed, which questions whether laws matter. Given that we have so many, and spend so much time discussing them, it seems an awfully good question.
After running through a series of diverse and facially disconnected legal issues that are or have recently been on the front burner, Turley writes:
An arbitrary system
The message across these areas is troubling. To paraphrase Animal Farm, all people are equal, but some people are more equal than others.
A legal system cannot demand the faith and fealty of the governed when rules are seen as arbitrary and deceptive. Our leaders have led us not to an economic crisis or an immigration crisis or an environmental crisis or a civil liberties crisis. They have led us to a crisis of faith where citizens no longer believe that laws have any determinant meaning. It is politics, not the law, that appears to drive outcomes — a self-destructive trend for a nation supposedly defined by the rule of law.
The manner in which Turley has framed his conclusion makes it adoptable by anyone and everyone, as becomes clear in the comments to his post. It feeds the mass paranoia, whether liberal or conservative, Democrat or Republican. Everyone with a position believes that they are getting screwed and the other guy is getting a free ride. The mixed chorus is singing hosanna, though the altos are blaming the baritones who are blaming the sopranos.
The reason Turley’s assertion is universally embraced is that we have lost faith in the integrity of the law, and the legal system. John Adams wrote that we are “a nation of laws, not men.” It’s a fine platitude, repeated mostly by elementary school students and Supreme Court justices. But as long as people administer the law, it’s subject to human foibles.
It’s not all that hard to tap into frustration. Most of us are angry about those who manage to wield petty power in a way that we feel is wrong or dishonorable. Each of us, provided we are reasonably normal, believes that we are reasonable, honest and appropriate in our view of life. We see right and wrong, and when things happen that don’t comport with our vision, and happen again and again, we lose faith. Those of us outside government see it as a monolith, a sort of insider conspiracy bent on subjugation of the good people (that would be us). Even people within government see other branches, divisions, this way, while knowing that they are hampered by well-intended rules gone astray.
Society is in a current state where the passage of laws, those named after dead children being a good example, are used for political exploitation, which is odd in that we blame bad laws for so many of our problems, yet embrace new laws as if they will magically cure all the bad ones that came before it.
What makes Turley’s conclusion so universally acceptable is that nothing seems to work right anymore, and yet the talking political heads continue to spew as if doing more of the same will produce a different, better, result. We’ve heard that song too many times. We’ve suffered the outcomes failing to meet the promise. We then hear the excuses and rationalizations that, we mumble to ourselves, ring hollow or foolish. We won’t be fooled again.
The expectation that government will fix things for us is at the heart of our loss of faith. Sure, government tells us it can and will, but it can’t and won’t. Don’t argue that this is a liberal concept, as conservatives are merely “differently liberal” when it comes to the passage of laws that are supposed to make things better. Governments make laws. It’s what it does. Like the proverbial nail to the guy with a hammer, laws are the only answer that government has to offer. And so they pass them, and pass them again, and watch as they fail to improve our condition.
What we have lost faith in isn’t merely government, but our ability to reach a consensus of what we want for our society. The other day, no less a scoundrel than former New York governor and patron of the arts, Eliot Spitzer, wrote for Slate that “Americans have lost their commitment to shared sacrifice.” No, he wasn’t referring to group sex, but to Lincoln’s Gettysburg Address.
The problems—from energy to educational achievement to financial reform to environmental degradation—that could be resolved with just a modicum of shared sacrifice are remarkable. Surely, as we enter a period of negative-sum decision-making, not positive-sum giveaways, we must understand—as President Lincoln beseeched us—that shared sacrifice, the shared shouldering of burdens, is the key to resolving our critical problems.
The problem, aside from the unseemliness of being lectured by Client Number 9, is that we continue to believe that there is some vast core of ideals that normal people share about what we want to accomplish and how best to do so. Some people love to characterize this as “common sense,” the last bastion of the myopic. If we think it’s the sensible thing to do, then all other people of good will and intelligence must, by definition, agree. And yet they never do, as they wonder why we’re too stupid or malevolent as to not agree with their common sense. After all, if we call it common, then common it must be.
Turley has tapped into a lode of frustration and disgust that has simmered below the surface for a long time, and has bubbled to the top recently, as demonstrated by elections based on the theme of change and tea parties of internally conflicted purposes. Everybody wants better and is certain that their way will accomplish it. And anyone who disagrees is just wrong and evil.
Laws that fail to meet our personal expectations of outcome are derided as a root source of our problems. But laws are just a manifestation of human frailty, both in their creation and application. Our problem isn’t with the laws, but with ourselves. Until we get it out of our heads that law, one more or less, will produce Nirvana, and come to the hard realization that laws are no better than the people paid to deal with them, we will continue to cast blame in the wrong direction.
As for our loss of faith in the people who comprise government, create the laws, apply the laws, decide the laws, it’s unclear that we will ever find someone of sufficiently accepted sincerity that we can all agree to trust him or her. Then again, it’s not unclear that we ever did before. Yet we’ve survived this far.
The tension between the government and the governed is likely the most powerful force to prevent our subjugation. Our distrust and frustration may prevent us from reaching national consensus, but it also prevents us from blindly following our government off a cliff. While loss of faith may not be what anyone wants out of government, it may be the best we’re ever going to get, and a whole lot better than the alternative of trusting a government that’s every bit as flawed as the people who comprise it, but without the scrutiny of the paranoids or us regular folks who just don’t think it’s doing a swell job.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
I would certainly find it hard to argue that skepticism of government is in any way a bad thing. Unfortunately, what I see happening is less the growth of skepticism of government’s magical powers than it is a erosion of the idea that the government is legitimate; which is a very different thing.
Herbert Marcuse wrote that “Law and order is everywhere the law and order that protects the established hierarchy.” Few of my clients read philosophy, but they understand that statement on a cellular level. What I see in the Tea Party movement–and lately Glenn Greenwald–is that those who were sure they were part of the established hierarchy are now feeling disenfranchised. This can create a dangerous situation. Successful revolutions seem to occur when the upper-middle class feels betrayed or locked out. This is why military coups usually consist of Colonels, not Generals. It’s why the Magna Carta was rammed through by the Barons, not the Dukes and Earls. It’s why the storming of the Bastille freed five aristocrats, not peasants. Those on the very bottom of the pile almost never revolt on their own, and those at the very top don’t need to.
Tea Party demographics–middle-aged and up, above average income, largely white–are pretty classic for a revolutionary base. They are not so much skeptical as they are indignant. After all, they played by the rules and saw their savings wiped out by those above them, saw their home equity diminish significantly, saw their businesses collapsing, and; prospectively; see their status as the majority core constituency disappearing. They are frightened more than anything else. And fear–the kind of existential fear that I see in those groups–is a powerful, unpredictable and frightening force.
Mind you, there is much–most even–of government that I would cheerfully wave goodbye to. My fear, however, is that we have a demographic which is ripe for a “Man on a Horse” type takeover. And that scares the bejeezus out of me.
Great, great post. I really appreciate this blog. Thanks from a long time reader and first time commenter
GB, your point about revolution coming from the disaffected middle class is well taken, but there is no galvanizing agreement as to what is wrong. The only thing tea partiers agree upon is that they are angry, What they are angry about differs from barbecue to barbecue. Without any sort of galvanizing agreement about what to do about the problem, it just spins in circles and goes nowhere.
Hence my reference to a “Man on a Horse”. A demogogue with charisma, an authoritarian manner and the promise of “fixing” the system could attract a very powerful base–enough to formally set aside the Constitution and rule as “President for Life”. We have already laid much of the groundwork for such a situation to come into being and to hold power once they grabbed it.