Why are there laws?
It seems a simple question, but careful thought reveals that it is not. The Roman lawyer and orator Cicero held that true law was universal and protected the natural rights of men; any law which didn’t do so, such as that decreed by a tyrant, was illegitimate. Among the protections Cicero mentioned were security of persons, possessions and public order. He also thought that any state, no matter how strong and well-ordered, may be destroyed by a decline in virtue among its leaders. He spoke from experience: He watched the Roman senatorial class abandon long-held virtues in a scramble for money and power.
In a later and equally turbulent time, Englishman Thomas Hobbes described the function of the state and its laws in narrower terms: They guaranteed the physical safety of person and community, and could be bought by the surrender of liberties. Informed by the English civil wars, Hobbes was a pessimist who saw man as irredeemably flawed and naturally vicious, necessitating strict restraints; laws were the result.
Hobbes’ near-contemporary John Locke saw things differently. Although he saw man as flawed, he was more positive concerning government and law: both existed to protect a cluster of Ciceronian “natural rights,” including personal security, freedom of action and thought, and property. Locke saw the most suitable government as limited and controlled, one which combined elements of democracy, aristocracy and executive authority.
Our country’s founders were mostly Lockean, so they gave us a republic with a mixture of defined and limited national powers, broad authority in its constituent states and several methods to secure popular input – which have increased over the years. It was a fine balance which served us well for the better part of two centuries, making us, in the words of John Adams, “A government of laws, and not men.”
This principle is now being stood on its head.
California’s Supreme Court recently decided to grant Mr. Sergio Garcia, who has lived illegally in the U.S. for two decades, a law license. This violates federal law, which prohibits such folks from receiving professional licenses; to its credit, the Obama administration opposed the action. Apparently, the California court gave its OK last Thursday after the California legislature passed a new law inspired by Garcia’s situation, authorizing the granting of such licenses.
To say that California was ill-advised in its course is not to take anything from Garcia, by all accounts a clever and hard-working man who was victimized by the ineptitude of federal immigration authorities. But a clearer case of special pleading is difficult to imagine: In it we see that California, at least, has become a state of men, not laws.
Colorado offers another peek at the rise of arbitrary rule. When Amendment 64 was on the ballot, it was embraced by some on the left as a mechanism to entice mostly liberal young voters to the polls. Arguments that state legalization of what the federal government still considers a dangerous drug would create terrible legal ambiguities were met with a shrug — essentially the same as in the California case. But when there is a conflict between federal and state law, federal authorities may decide to act, or they may not. Or the law may be enforced on a selective basis, ignoring precious “youth voters,” while punishing others. Such arbitrary rule is the hallmark of authoritarian government: We are a state of potheads, not laws.
At the federal level, examples abound. There’s no need to detail IRS or NSA abuses or the favorable treatment accorded the politically fashionable or well connected; these are well known examples of the banana-republic nature of the present administration. Some are similar to past shenanigans by both parties’ administrations. What is new and troubling is the attitude about the law itself.
Events attendant on the implementation of Obamacare offer the most vivid examples. Again and again the president has blithely announced that this or that provision of the law will be delayed, unenforced or otherwise set aside. Exemptions have been arbitrarily carved out for favored groups. Sections have been altered for political expedience. But there’s a problem.
Obamacare, as its proponents never tire of saying, “is the law.” But as law it is not subject to alteration by White House diktat. It can be declared unconstitutional in whole or part by the Supreme Court, or it can be altered by Congress. The president can enforce it, or he can refuse to do so. But he cannot change the law to suit his mood or convenience. That is the action of an absolute monarch, and we haven’t had one of those in English-speaking America since 1649.
Wannabes, yes. Apparently including the incumbent.
Morgan Liddick lives in Summit County.