Godwin’s Constitution

The latest blog posting of a man — a criminal defense lawyer — whose opinions I very much respect, even if the feeling does not appear to be mutual, and (Scott says this isn’t true, so I’m crossing it out) even though I sometimes disagree with his opinions, inspires today’s blog post here. He appears to draw a connection between complaints “addressing any aspect of our fragile criminal justice system” that lead to some statement that “we live in a police state, our elected officials are tyrants and the Constitution is dead” and what he calls another corollary — Corollary 92 — of Godwin’s Law.

As with his statement that “it’s wrong,” I can find no support for calling it Corollary 92, but at least the latter claim is funny.

The former — plus the claim that it is “unhelpful” to make such statements — is not only unconvincing because similarly unsupported, but demonstrates why the mere statement of Godwin’s Law itself should not be considered the talisman it has become for discounting those with whom we disagree.

Since I am one of those who frequently claims that the Constitution is dead and since I think the position stated above is the one which is unhelpful, and even harmful, it is only fair that I respond.

An honest and engaging response is, after all, the way to address arguments and speech with which one disagrees.

[This is one] way to expose an idea as fallacious. That is to speak out against it — to drown out the hatefulness of the wrongful idea with rationality, facts, and human concern. This is the response of strength, not weakness. It says, “We’re not afraid of your ideas, because in any fair contest, ours will win and yours will lose.” This is the first positive answer the First Amendment gives to those who would ban speech that appears bad. Speech isn’t the problem; it’s the solution. In the words of Supreme Court Justice Louis D. Brandeis, the remedy is “more speech, not enforced silence.” ^[1]Mark Sableman, More speech, not less: Communications law in the Information Age, p. 10 (1997).

In reading this blog entry, let’s keep something in mind. First off, I did not start this blog entry off with a lie. I do very much respect the opinions of the man whose blog entry inspires this one. So let’s also note that while I think the above-quoted passage from Sableman is applicable (or I wouldn’t have used it), it isn’t a perfect fit. The blog entry to which I am responding doesn’t — at least I think it doesn’t — qualify as “hatefulness.”

I do think it presents a wrongful idea.

The wrongful idea I take it to present is that statements that our Constitution is dead, or that our nation is either already — or on the way to becoming — a police state, are themselves unhelpful and wrong.

In arguing this, though, I recognize that there are points to be made by both sides. Life and death, as well as other states delineated by the labels used to characterize what is happening in our nation, exist on a continuum. The nation, or a thing like the Constitution, or concept like “our criminal justice system,” is not limited to being either “dead” or “alive”; those are the endpoints in the process of dying. To a certain extent, the claim that the Constitution is either dead or not dead is a judgment call. Some doctors might continue heroic efforts to salvage a patient before conceding death, while others with either less patience, more experience, or simply more faith in the correctness of their own decisions might call it sooner.

On the issue of the Constitution, I appear to have less patience than others. I’ve already called it more than once. I’ve done this because I believe the exceptions carved out by the courts to the rules laid down in the Constitution have swallowed those rules. The protection the Constitution once promised from a too-strong, unlimited government is gone.

I say the Constitution is dead because it is applied not as intended. Not only is it not applied the way it was intended, shielding us from an over-intrusive government, but it was intended to be applied all the time. Now, it is applied rarely. Terrorism? No need for constitutional protections of any kind. Drugs? No Fourth Amendment. DUI? The DMV isn’t part of the government subject to constitutional limitations.

The Constitution has become like Swiss cheese, full of holes; and just like Swiss cheese, sometimes it works, and sometimes it doesn’t.

There is another reason, though, that intelligent minds might disagree with my assessment. I live and work in Fresno, California. Sure, I read a lot about what’s happening elsewhere, but my daily exposure is to the criminal “justice” system in this area. Maybe where some other lawyers live, the courts are more supportive of the Constitution. I have my doubts about that, but it’s possible. Germany’s democratic republic didn’t fall to fascism in a day. Someone practicing in New York might have different experiences, providing a different perspective, than someone living in — oh, I don’t know — maybe Maricopa County.

Godwin’s Law and “its corollaries” (and let’s not forget Henderson’s Corollary) are sometimes funny. Maybe they’re even humorous most of the time. But if you believe that all you have to do to shoot down a thought or an idea is to shout out Godwin’s Law, you’re just fooling yourself. Worse, you may fool others, and there is a very real danger in trying to make a laughingstock of someone just because he warns of fire when he spots smoke, while you prefer to wait until you see flames.

As alluded to above, even Nazi Germany didn’t spring fully-armored from the brow of Zeus. There really was a time in Germany, before the reign of the Nazis, in which there were constitutionally-protected freedoms. As Ingo Müller has pointed out, the German legal system was brought down not overnight, but over a period of time, by “the doctrine of ‘national emergency.'” ^[2]Ingo Müller, Hitler’s Justice: The Courts of the Third Reich, p. 24 (1991).

Sound familiar? There really is a reason to be concerned when a democratic republic with constitutionally-protected freedoms shows signs of going down the path of horrors traveled by that former democratic republic with constitutionally-protected freedoms. As Ingo Müller’s work lays it out, the path from freedom to fascism doesn’t happen in a heartbeat.

The problem that makes the assignation of Godwin’s Law funny is that too many people too quickly draw comparisons between something they dislike and the Nazis, or Hitler. Similarly, in arguing about the Constitution, or the criminal justice system, not every incident will rightly count towards “proof” that one is dead and the other warped. Or even that both are warped. To jump too quickly from some minor aberrant episode to the negative conclusions about the health of either is sometimes to engage in a logical fallacy. (Sometimes it is merely a mistake of inductive reasoning based on incomplete data sets.)

But that’s just my variation on “the real problem,” so you can just wave Godwin’s Constitution at me and ignore my whole argument.

Until after the flames consume us.