A Government of Men, Not of Laws

Many years ago, when there was less knowledge in the world, but people were generally smarter, a doctrine developed — an ideal — which was to form the very basis for a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.

Before going further, let’s dispose of two issues that are of no import to what I’m writing today. First, the use of the term “men” is because I am using the anachronistic quotes — “a government of laws, not of men” and “all men are created equal” — as they were used by the Founders of the United States of America. Second, unless you hold the same heinous position they held, which is that certain “men” were not really “men” — kind of treating entire groups of human beings as a distinct and separate species — then they didn’t really think that “all men are created equal.”

What they meant, though, is the same thing Aristotle said in his Politics, “Law should govern.” No government which was part of the United States of America would be run by despots, oligarchs, or anyone else who could arbitrarily decide when someone should be punished for some perceived slight, or “wrong.”

Today we have evolved as a nation. We recognize that all men, as well as women, have the same “unalienable” ^[1]The correct spelling would be “inalienable,” but that’s just another thing that’s different between us and our Founders. rights. Today, we would say, “Everyone must be treated the same when it comes to how our laws are applied.” ^[2]And by that, today we would mean “regardless of ethnicity or gender.”

But that was how America started. It is not how she is ending. 

Noah Webster, in a newspaper commentary published October 17, 1787, titled “A Citizen of America,” stated:

It is…a dangerous power– it is absurd and hazardous to lodge in one man the right of controlling the will of the state. ^[3]Noah Webster, “A Citizen of America” in, The Debate on the Constitution : Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification : Part One, September 1787-February 1788 (Library of America) (Bernard Bailyn, ed. 1993), 144.

In the years since then, in numerous Supreme Court cases, the phrase “government of laws, not of men” has been used to point out that our nation is not one where arbitrary decisions are made by arbitrary people exercising their own despotic will in ways that allow an individual to be punished, or denied a right, by the whim of individual government officials with the power of the government behind them. No one man could thus control the will of the state to do to others whatever he wants.

In a case where the President of the United States ordered the seizure of steel mills, Justice Jackson noted,

“No person shall be…deprived of life, liberty, or property, without due process of law….” [This signifies] about all there is of the principle that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules. ^[4]Youngstown Sheet & Tube Co. et al. v. Sawyer, 343 U.S. 579, 646, 72 S. Ct. 863, 96 L. Ed. 1153 (1952) (Jackson, J., conc. opn.

In a voting rights case, an older, wiser Supreme Court than we have now said that a State could not make rules which would have the effect of depriving individuals of the right to vote because equal treatment under the law was “an essential part of the concept of a government of laws and not men.” ^[5]Harper et al. v. Virginia Board of Elections et al., 383 U.S. 663, 667, 86 S. Ct. 1079, 16 L. Ed. 2d 169 (1966).

And in our own time, “Justice” Scalia — of whom I am no fan because, despite his words I’ll quote here, he is as arbitrary as any in voting according to his own will, rather than according to law — referenced the phrase when he complained about interpreting laws one way one time, and another way another time, to satisfy our desire for a specific outcome:

[T]he phenomenon calls into question whether our legal culture has so far departed from attention to text, or is so lacking in agreed-upon methodology for creating and interpreting text, that it any longer makes sense to talk of “a government of laws, not of men.” ^[6]Patterson v. Shumate, 504 U.S. 753, 766, 112 S. Ct. 2242, 119 L. Ed. 2d 519 (1992) (Scalia, “J.” conc. opn.

In fact, it does not.

Ours is not a government of laws, but of men.

This is why today you cannot be safe from government intervention in your life simply by following the law.

Scott Greenfield writes “Hands on the Wheel,” where a Border Patrol agent in New York pulled over a driver after becoming suspicious because she was following the law while driving.

Agent Brandon Carrier spotted Deer and Morgan’s white SUV and became suspicious when he saw the driver had more than one hand on the wheel and did not appear to be relaxed. Agent Carrier began following closely enough to read the license plate and radio in to find the SUV was not stolen.

With the marked patrol car following for a total of six miles, the SUV maintained a speed of 50 to 60 MPH. The SUV did not take the opportunity to pass slower vehicles ahead, and when the road expanded into two lanes, the SUV pulled to the right to allow the patrol car to pass. Agent Carrier decided to conduct a traffic stop.

“I just want to go home and see my baby,” Morgan said as she handed Agent Carrier her registration and license.

Both Morgan and Deer are US citizens, and they stated they were headed to Buffalo. Agent Carrier became suspicious and about an hour into the stop a drug dog was called to the scene, and a tire filled with marijuana was found in the trunk. ^[7]This quote is taken from the original article Scott referenced.

The case was thrown out by the judge. “Safe driving” is — at least for now — perfectly legal in New York, and could not provide a basis for a stop. (Not to mention a one-hour detention without any more of a reason than this before anything was found wrong!) You don’t have to be kicked back, one foot on the wheel, one hand behind your head, looking relaxed, as if you had not a care in the world, tripping to tunes and gnoshing on a cheeseburger.

Some of you will no doubt — and I’m not naming names here, my old law-school friend 😉 — say, “I can’t believe they let her go on that technicality!”

But there are good reasons for letting people go based on such technicalities.

First of all, they aren’t “technicalities.” Those of us who actually understand and still believe in a government of laws call them by what they are: “laws.” When an individual law enforcement officer gets to decide who to stop, regardless of whether they are following the law or not, we recognize that as “government not of laws, but of men.”

You might think my point of view is outrageous. After all, these women were smuggling drugs. They’re criminals. They should not be entitled to the protection of the law.

The problem with this way of thinking should be obvious, if you are actually thinking. The border patrol agent had no basis for believing these women were committing any crime. Apparently, he just felt funny about them. That the women were actually smugglers doesn’t change that: the officer didn’t know that; he just got lucky.

One of the commenters to Scott’s post pinpoints why this is a problem:

It doesn’t help the cause of liberty (or even just freedom from unjustified government intrusion into our lives) that these cases only get reviewed when someone has done something criminal.

If the cop pulls you over for suspiciously driving in accordance with the law, a court is only going to review that reason if he’s found some other reason (drugs, DUI, guns, etc.) to have you hauled into court eventually.

That builds a strong incentive for judges to look to accept the BS boilerplate language (in my training and experience, etc.). After all, who wants to let a criminal run free?

As I’ve written elsewhere, “even a blind squirrel finds a nut once in awhile.”

How many other times did he stop and detain United States citizens who were acting in perfectly legal ways because he had some kind of hunch, or indigestion? How many other people got to sit for an hour, until they were cleared to leave?

Don’t think that simply having a drug dog show up would clear things up, either. Drug dogs pretty much always  “alert” if the law enforcement officer is suspicious enough. Then your car is searched — perhaps torn apart — and you are (sometimes) allowed to go on your less-merry way if nothing is found.

This happens thousands — if not tens of thousands — of times across the Land of the Free every day. You just don’t hear about it because no charges are filed. The person whose liberty, and sometimes property as well, was taken away from them without legal justification is turned loose. And if they do file a complaint or lawsuit, it seldom comes to anything, because internal affairs doesn’t care (they are, after all, cops themselves), and jurors just don’t recognize how bad things really are. 

This is partly because our laws today are so poorly written, and partly because there are just too damn many of them.

But it is primarily because few — very, very few — of those who administer our laws really care what the law says. They make their own judgments, on the fly, according to their whim at the moment, as to which laws apply, and which do not. They decide to whom they apply, and to whom they do not. Someone pisses them off — maybe by writing something they don’t like, calling them out for being the lawbreakers that they are — and they order all their deputies to perform illegal unjustified searches to try to teach that person a lesson. ^[8]As you can see, it’s working really well.

They know that in most cases, if anyone complains, they will get a pass. As “Justice” Scalia rightly complained, they interpret things one way one time, and another the next, in order to make it appear as though they were actually following the law. But no one so clearly flaunts the law in the United States as do those charged with enforcing the laws. They show nothing but contempt for the law; they are an army unto themselves, targeting who they will without fear of reprisal. The “Blind Squirrel Rule” justifies it.

You can see this pretty much anywhere you look today. If you look today. But, of course, one of the big reasons this happens is because not enough people do look, or, if they look, they don’t care, because the arbitrary rule of oligarchs has not directly impaired them in a way they can recognize just yet.

It does, however, impair us all. This is a structural failure of our system which makes it no longer just. And it is a defect from which we can only recover if our oligarchs can be convinced that they are not, in fact, oligarchs. The longer it goes on, the worse it will get.

Until one day, we will be a full-fledged arbitrarily-driven police state.

And then it will be too late.