I graduated from the University of Wisconsin Law School in 1999. A student law review article I authored while there got me started on a crusade immediately following graduation premised on the cause of action set forth in the article. The article had gotten quite a bit of attention, and was in fact distributed to every member of congress by a congressman/M.D. along with a letter urging them to read it. My plan was to remedy a gross and pervasive injustice and hopefully make millions in the process, kind of like the plaintiffs’ lawyers in the litigation against Big Tobacco (which was small potatoes compared to what I had in mind). Instead, the injustice remains unremedied and unchecked, and I wound up broke and deeply disillusioned with the following branches of government: legislative, judicial, and executive.
Despite becoming broke as a result of this debacle, I still “owed” in taxes more than a third of my income to the very government which was perpetuating and perpetrating the very injustice upon which I had crashed and burned. The disillusionment deepened, and has made me what I am today: Enlightened, relative to my former illusionment.
It’s a good thing to be disabused of our illusions and superstitions. More of us should try it. Enlightenment is the bright flip-side of disillusionment. After many centuries, more and more people began to question the authority of the official Church over their consciences. It’s time for these same kinds of questions and doubts to be aimed at the pretensions of the State.
There’s little doubt that in general “our” government is not quite as bad as the government in, say, China. That doesn’t make our government good, however, or worthy of our gratitude for not being quite as bad as China.
One thing that is admirable in our constitutional scheme, though, is the First Amendment. I like to think that what made it the First was the idea that, no matter how oppressive the State might get, so long as people remain free to speak their minds things can still change for the better. (Note which Amendment comes Second.)
A dangerous irony, however, is that those who actually make a profession of the law, who are supposedly learned in the law and who undertake to fight for justice on behalf of others, are not as free to speak their minds about the law and the legal system as those who are less learned in the law. Lawyers, as a condition for admission to the profession, must swear or affirm, among other things, that they will “support the Constitution of the United States” and will “maintain the respect due to courts of justice and judicial officers.” They must watch what they say, lest they be deemed by the administrators of justice to have “undermined the public’s confidence in the administration of justice.”
Was it a lawyer’s duty to “support” the U.S. Constitution when it permitted slavery? Was it a lawyer’s duty to “respect” the judicial officers on the U.S. Supreme Court who decided Dred Scott v. Sandford? Unjust laws and unjust decisions are not a thing of the past. The 16th Amendment, for example, permits a form of slavery and extortion. (About the only forms of taxation which arguably are not extortion are inheritance taxes and taxes on the unimproved value of land.) The war on drugs, while purporting to protect people from themselves, punishes mere vice as crime. Licensure laws infringe on the fundamental right to earn an honest living and inflate the consumer costs of critical services (e.g., legal and medical) to protect the incomes of the already-credentialed. The list goes on and on. A law is only as legitimate as it is just. Recognizing this truth is straight-up philosophical anarchism, which is both radical and conservative.
I believe there is such a thing as a good judge and a good cop, because I’ve met a few of them. The problem is that even the good judge and the good cop are constrained to apply and enforce evil laws to the detriment of their fellow human beings. An otherwise immoral exercise of coercion or violence doesn’t magically become moral just because it’s done by a member of the government pursuant to the government’s laws. “I was just following orders” was no excuse for the Nazis at the Nuremberg Trials, and we all remain personally responsible for our actions and decisions. For all our talk about having a government of laws rather than men, the government consists solely of the men and women who make it up.
Long live the First Amendment’s recognition and protection of the unalienable, natural right to freedom of speech. This blog will need it.