Scott Greenfield writes today about a civil case which demonstrates about as clearly as anything I’ve seen lately what’s wrong with the rule of law in America — and why our criminal system is now so unjust, unfair, and so very worthy of our disapprobation.
For those who dislike the exercise of reading entire blog posts, it’s this: there is no there there.
Gertrude Stein is credited with having originally coined this phrase in her book, Everybody’s Autobiography. The story is that upon returning from a visit to France, she wanted to visit her childhood home in Oakland, California, but could not find the house. In relating the tale, Stein stated, “There is no there there.” It simply didn’t exist anymore.
Increasingly, that is the case with the law today. Not even stare decisis can protect us anymore, because when it comes to the meaning of the words that embody the law “there is no there there.” What the law means at any given point in time is constantly shifting. It is no longer moored to anything, not even to the words used to encode it.
In the civil case about which Scott wrote, a particular statute stated that a lawsuit would not stand where there was no notice of a dangerous condition that was the basis of the suit. This statute applied in cases involving “any sidewalk, crosswalk, street, highway, bridge or culvert.” Though appearing to be a fairly thorough list — how often do culverts get included in a statute? — the word “parking lot” did not appear.
And a parking lot is just where the woman slipped and fell on ice, resulting in the lawsuit.
As Scott pointed out, New York’s highest court had no problem with this. As Humpty Dumpty would have put it,
“There’s a highway for you!”
“I don’t know what you mean by ‘highway,'” Alice said.
The judges smiled contemptuously. “Of course you don’t — till we tell you. We meant, ‘there’s a parking lot for you!'”
“But ‘highway’ doesn’t mean ‘parking lot,'” Alice objected.
“When we use a word,” the judges said, in rather a scornful tone, “it means just what we choose it to mean — neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said the judges, “who is to be master — that’s all.”
I can’t help but wonder how much longer we can go on like this. But ordinary people can apparently tolerate quite a bit of lawlessness on the part of, and abuse at the hands of, their governments before finally saying, “Enough.” I can’t help but fear that it could be quite a long time — possibly even, at least, the rest of my life, at which point I will truly no longer have any part to play in fighting it — before things change.
Yesterday, my friend Susan Krinard said that she had some hope that the pendulum is nearing the end of its swing and will soon head back the other way. I told her I didn’t see it. “The pendulum appears to have a ratchet.”
But as I told her I felt nothing could fix what’s happened except an actual Revolution, of the sort that founded this country, we both lamented the fact that while a Revolution might eventually come, it is probably impossible today to ever have another founding like the first.
For my part, at least, I cannot imagine another Constitution like the one that came before. That Constitution has been loaded up with so much baggage, the words can no longer carry it’s original meaning.
More importantly, the world’s now-endemic Humpty-Dumpty approach to language is why it wouldn’t matter, even if people could agree on a new Constitution with words similar to that of old.
Thomas Jefferson’s perhaps-disingenuous-at-the-time lament has come true,
The constitution, on this hypothesis [that it means what the court says it means], is a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.
And that’s why our legal words no longer have any constancy, or consistency, of meaning.
We are no longer a nation of laws, but of men. They have displaced the law — pushed it out of the neighborhood — and re-populate the neighborhood constantly according to their own whimsy.
When it comes to going back, to looking for the childhood home of the principles upon which the United States of America was founded, there is no there there.