But one of the greatest lawyers who’ve ever lived, Lysander Spooner, never “practiced” much law. One of the greatest lawyers alive today, Tony Serra, confessed to his biographer that he regarded “going into law” as for him “a fall from grace.”

I suspect being a lawyer is like being a priest. The priest can repudiate the Church. He can be excommunicated by the Church. But he’s still a priest.

(H/T Matt Brown)

Norm’s post concludes:

We live in this schizoid fog because we lack the confidence as individuals to say what is and is not just. Indeed, it’s chic in most quarters to view the very question as quaint, or perhaps, naive. We’re just like sheep, afraid to reason, and then following the man or woman bold enough to seize the shepherd’s crook. We love to complain about politicians, yet we follow them blindly. Because we lack the courage to say what is just, because we are nihilists at heart, we take what we get and hope for more. I wonder what would happen if we took our hopes more seriously, and if jurors began to say “no” simply because they can do so. I wonder what would happen if we casts more bricks than votes, if we had the courage to believe, as the anarchists do, the we do not need to be told what is just, that we know it in our bones.

I’ve said it before and I’ll say it again: Justice is the absence of crime. Although, as Norm says, “‘right reason’ is said to shed light on justice,” it’s not all that complicated. Reason is simply the faculty of knowing the truth. Argument is the lowest form of reason, and its aim is to directly understand the truth. Lawyers, law professors, judges and politicians are certainly not more qualified to discern truth, or what justice requires, than are human beings. Quite the opposite. Restoring the right of juries to judge the justice of the laws does not entail expecting jurors to become expert logicians or policy wonks. If Justice is the absence of crime, it is something negative (in the good sense). It is characterized, as the passage from Norm’s post quoted above suggests, by simply saying “no.” It is characterized, in the first instance, by not doing something rather than by doing something.

If Justice is the absence of crime, what is crime? Presumptively, it’s simply anything we would not have others do unto us. Locking a human being up in a cage like an animal is presumptively a crime. Taking a person’s money, by sticking him up in an alley, or by threatening to lock him up in a cage like an animal if he doesn’t pay his “taxes,” is presumptively a crime.

I am not pure enough to subscribe to the pacifism advocated by Tolstoy. Sometimes we should fight crime with what is presumptively a crime. But we should thus fight fire with fire, violence with violence, only insofar as doing so is truly necessary, and only as a last resort. As a practical matter, Justice is the presumption of innocence.

Here’s some food for thought from Spooner’s Essay on the Trial by Jury:

It is supposed that, if twelve men be taken, by lot, from the mass of the people, without the possibility of any previous knowledge, choice, or selection of them, on the part of the government, the jury will be a fair epitome of “the country” at large, and not merely of the party or faction that sustain the measures of the government; that substantially all classes, of opinions, prevailing among the people, will be represented in the jury; and especially that the opponents of the government, (if the government have any opponents,) will be represented there, as well as its friends; that the classes, who are oppressed by the laws of the government, (if any are thus oppressed,) will have their representatives in the jury, as well as those classes, who take sides with the oppressor — that is, with the government.

It is fairly presumable that such a tribunal will agree to no conviction except such as substantially the whole country would agree to, if they were present, taking part in the trial. A trial by such a tribunal is, therefore, in effect, “a trial by the country.” In its results it probably comes as near to a trial by the whole country, as any trial that it is practicable to have, without too great inconvenience and expense. And, as unanimity is require for a conviction, it follows that no one can be convicted, except for the violation of such laws as substantially the whole country wish to have maintained. The government can enforce none of its laws, (by punishing offenders, through the verdicts of juries,) except such as substantially the whole people wish to have enforced. The government, therefore, consistently with the trial by jury, can exercise no powers over the people, (or, what is the same thing, over the accused person, who represents the rights of the people,) except such as substantially the whole people of the country consent that it may exercise. In such a trial, therefore, “the country,” or the people, judge of and determine their own liberties against the government, instead of the [*8] government’s judging of and determining its own powers over the people.

But all this trial by the country” would be no trial at all “by the country,” but only a trial by the government, if the government could either declare who may, and who may not, be jurors, or could dictate to the jury anything whatever, either of law or evidence, that is of the essence of the trial.

. . .

The force and justice of the preceding argument cannot be evaded by saying that the government is chosen by the people; that, in theory, it represents the people; that it is designed to do the will of the people; that its members are all sworn to observe the fundamental or constitutional law instituted by the people; that its acts are therefore entitled to be considered the acts of the people; and that to allow a jury, representing the people, to invalidate the acts of the government, would therefore be arraying the people against themselves.

There are two answers to such an argument.

One answer is, that, in a representative government, there is no absurdity or contradiction, nor any arraying of the people against themselves, in requiring that the statutes or enactments of the government shall pass the ordeal of any number of separate tribunals, before it shall be determined that they are to have the force of laws. Our American constitutions have provided five of these separate tribunals, to wit, representatives, senate, executive, fn2 jury, and judges; and have made it necessary that each enactment shall pass the ordeal of all these separate tribunals, before its authority can be established by the punishment of those who choose to transgress it. And there is no more absurdity or inconsistency in making a jury one of these several tribunals, than there is in making the representatives, or the senate, or the executive, or the judges, one of them. There is no more absurdity in giving a jury a veto upon the laws, than there is in giving a veto to each of these other tribunals. The people are no more arrayed against themselves, when a jury puts its veto upon a statute, which the other tribunals have sanctioned, than they are when the [*12] same veto is exercised by the representatives, the senate, the executive, or the judges.

But another answer to the argument that the people are arrayed against themselves, when a jury hold an enactment of the government invalid, is, that the government, and all the departments of the government, are merely the servants and agents of the people; not invested with arbitrary or absolute authority to bind the people, but required to submit all their enactments to the judgment of a tribunal more fairly representing the whole people, before they carry them into execution by punishing any individual for transgressing them. If the government were not thus required to submit their enactments to the judgment of “the country,” before executing them upon individuals if, in other words, the people had reserved to themselves no veto upon the acts of the government, the government, instead of being a mere servant and agent of the people would be an absolute despot over the people. It would have all power in its own hands; because the power to punish carries all other powers with it. A power that can, of itself, and by its own authority, punish disobedience, can compel obedience and submission, and is above all responsibility for the character of its laws. In short, it is a despotism.

. . .

Common sense and reason tell us that nothing can be right by legislative enactment if it is not already right by nature. Epictetus, the Stoic, urged men to defy tryants in such a way as to cast doubt on the necessity of government itself. “If the government directed them to do something that their reason opposed, they were to defy the government. If it told them to do what their reason would have told them to do anyway, they did not need a government.” As Lysander Spooner pointed out, “all legislation is an absurdity, a usurpation, and a crime.” Just as we do not require a State to dictate what is right or wrong in growing food, manufacturing textiles, or in steel-making, we do not need a government to dictate standards and procedures in any field of endeavor. “In spite of the legislature, the snow will fall when the sun is in Capricorn, and the flowers will bloom when it is in Cancer.”

. . .

It is a fact of human nature that the only person who can think with your brain is you. neither can a person be compelled to do anything against his or her will, for each person is ultimately responsible for his or her own actions. Governments try to terrorize individuals into submitting to tyranny by grabbing their bodies as hostages, trying to destroy their spirits. This strategy is not successful against the person who harbors the Stoic attitude toward life, and who refuses to allow pain to disturb the equanimity of his or her mind, and the exercise of reason. A government might destroy one’s body or property, but it cannot injure one’s philosophy of life. Voluntaryists share with the Stoics the belief that their ideas will not necessarily change the world, nevertheless, some of them may be inclined—like the Stoics—to become martyrs, when necessary. They would rather suffer death or harm than lose their integrity because their integrity is worth more to them than their existence.

Let’s say you — or someone you care about — had a few drinks one night and, knowing it would not be a good idea to drive, decided to let a sober person take the wheel.

Did you realize you can still be charged with a criminal offense? It’s true. The Indiana Supreme Court just affirmed this in Moore v. State.

. . .

Indiana’s public intoxication law is horrendously vague and depends upon the arbitrary discretion of law enforcement, which means it is open to possible abuse.

Worst of all, this law makes criminals of peaceful people who are not harming others. Lysander Spooner made an excellent case way back in the 1870s when he said “vices are not crimes.” He writes, “Vices are those acts by which a man harms himself or his property. Crimes are those acts by which one man harms the person or property of another.”

When a law exists that can rightly be interpreted to say that one can commit a criminal offense even while sleeping in the passenger seat of a car, clearly we have a problem.

Harbeson blames the law rather than the Indiana Supreme Court for this ridiculous result, but her assumption that Indiana’s public intoxication law “can rightly be interpreted” to say what the Indiana Supreme Court in Moore said it says is misguided. In fact, in this post I quoted something else Lysander Spooner wrote to explain why the Indiana Supreme Court’s decision in Moore is as wrong as it smells.

***

In other Spooner-related news, Randy Barnett, the proprietor of lysanderspooner.org, further shores up his mainstream conservative Republican bona fides in a post at the Volokh Conspiracy expressing gratitude for “capitalism” and “the rich.” The attitudes of Spooner himself were very different.

But hey, I still have to give Randy props for lysanderspooner.org, where you can read Vices Are Not Crimes.

The facts in Brenda Moore v. State were not in dispute:

The defendant had consumed two tall cans of beer at her sister’s house on the evening of December 5, 2008. A friend of the defendant’s brother asked for a ride to visit a friend. The defendant explained to him that she could not drive because she had been drinking but that he could drive her car if he had a license. The brother’s friend then drove the defendant’s car with the defendant riding as a front seat passenger. When an Indianapolis Metropolitan Police Officer pulled over the car because the license plate light was not working, the officer determined that the driver did not have a valid driver’s license and that the defendant could not operate the vehicle because she was intoxicated.

She was convicted of Public Intoxication, which is defined by Indiana statute as being “in a public place or a place of public resort in a state of intoxication caused by the person’s use of alcohol or a controlled substance.” From the Supreme Court’s opinion:

Established precedent has long recognized that a person in a vehicle stopped along a highway is in a public place for purposes of the public intoxication statute.

. . .

The defendant’s principal argument is that her conviction “violates the spirit of the public intoxication statute, and the policy behind its enactment” because she caused no harm or annoyance and “adhered to the popular public service motto ‘Don’t drink and drive.'” She favors a policy that would “encourage persons who find themselves intoxicated to ride in a vehicle to a private place without fear of being prosecuted for a crime.”

Whether conduct proscribed by a criminal law should be excused under certain circumstances on grounds of public policy is a matter for legislative evaluation and statutory revision if appropriate. The judicial function is to apply the laws as enacted by the legislature. We decline the defendant’s request to reverse her conviction on public policy grounds.

(Citations omitted.)

But it was the court’s own “established precedent,” not the “laws as enacted by the legislature,” which supposedly “recognized” that a person inside a private vehicle is “in a public place.” And as the lone dissenter points out, other precedent and common sense supports a contrary conclusion. The majority offers no reason other than “because we said so” to justify its counter-intuitive insistence that a passenger inside of a closed private vehicle traveling along a highway is “in a public place” and should suffer criminal penalties merely because she’s intoxicated.

My prescription for what ails the Indiana Supreme Court and therefore the people of Indiana is a strong dose of Lysander Spooner:

Taking it for granted that it has now been shown that no rule of civil conduct, that is inconsistent with the natural rights of men, can be rightfully established by government, or consequently be made obligatory as law, either upon the people, or upon judicial tribunals ‑‑ let us now proceed to test the legality of slavery by those written constitutions of government, which judicial tribunals actually recognize as authoritative.

In making this examination, however, I shall not insist upon the principle of the preceding chapter, that there can be no law contrary to natural right; but shall admit, for the sake of the argument, that there may be such laws. I shall only claim that in the interpretation of all statutes and constitutions, the ordinary legal rules of interpretation be observed. The most important of these rules, and the one to which it will be necessary constantly to refer, is the one that all language must be construed “strictly” in favor of natural right.

Has Barnett read the recent USA Today retrospective which “lays bare the complete disdain Justice Thomas has shown for those accused of and convicted of crimes” during his 20 years on the SCOTUS?

I can only assume that he has, and that the former prosecutor shares Thomas’ disdain, as it would be consistent with Barnett’s apparent disdain for the innocent victims of War.

For my part, I prefer to highlight as edifying stories like this one about the Wisconsin Supreme Court, this one about the Michigan Supreme Court, this one about the Indiana Supreme Court, and yes, the USA Today story about Justice Thomas referenced above as well as this recent NYT story, which Barnett characterizes as “advancing another empty charge against Justice Thomas.”

Lysander Spooner would be so very proud.

First, I want to acknowledge that I’ve perhaps been too harsh in my implicit criticism of Julian Heicklen for planning to represent himself in a criminal case charging him with jury tampering for allegedly distributing pamphlets about jury nullification outside a federal courthouse. There may be some method to his madness. He’s stated that he plans to represent himself “because I can and will say and do things that could disbar any attorney.” But by that he may “just” mean what he meant when he later explained:

In essence, I want to discuss the jury’s right to nullify the law IN FRONT OF A JURY. . . . My position is that neither jury nullification is or that I am on trial. My position is that the judiciary is on trial. Jury nullification needs no defense. It is the law of the land.

I get it. Because he knows that juries, including his jury, have not only the power but also the right and the duty to nullify the law when it works an injustice, he naturally wants to inform the jury that will be deciding his fate of this fact, and to argue to them that even if they believe he violated the State’s jury tampering law as written they should still acquit, because it would be unjust to convict him and the jury’s duty is not to follow the “law” but to see that justice is done. He also knows that a licensed attorney will not do this for him because by doing so the attorney would risk, if not disbarment, suspension or some form of “discipline.” Now, the “law” that allows judges to forbid attorneys from arguing nullification to the jury also applies to pro se defendants, but the fact remains that a pro se defendant has both more to lose and less to lose than an attorney in this context. It’s interesting to speculate on what measures the court in Julian’s case can or is likely to take to muzzle Julian when he insists on making a nullification argument to the jury (particularly when the main evidence against him will be jury nullification brochures and the jury will therefore necessarily be exposed to such arguments anyway), but I’ll leave that to Julian and his advisers.

Second, I want to take this occasion to “qualify” my firm conviction that juries have not only the power but also the right and the duty to nullify an unjust law or an unjust application of a law by acknowledging that juries are only as good as the people who make them up, and that a lot of people suck. Julian might get to make his jury nullification argument to the jury and still get convicted, even though he should be acquitted based on the facts and the law even apart from any nullification. But even a sucky jury can’t unjustly convict a person until a sucky legislature, prosecutor and/or judge has enabled it to do so, and so the right of a jury to do the right thing in the teeth of the “law” remains an essential, if not the essential, check on government injustice.

When I say that I am not alone in thinking sometimes violence is a necessary response to our own government, I am referring to the Founders of the United States of America. We may not like to think about it, but if they had not violently responded to what was then “our government,” the United States of America would not exist today; would never have existed.

But the words and actions of the Founders are instructive for us today not because they violently overthrew the government in place at the time. Or maybe not “just because.”    

The Founders did not arbitrarily attack. They did not suddenly come of age and say, “Today would be a good day to kill government officials.” It was something which developed over time — in fact, it was many years in the making.

During that time, the Founders tried. They tried hard to work within the government, to right the wrongs being done against them, to entreat both the government and their fellow countrymen, to change things through then-legal means.

When they realized there was no longer any hope of this happening, then they began to take to the path of violent resistance. Even then, there was something of a slow burn. They took to the path of violence with great reluctance.

When I read this I was reminded of what Brad Spangler at the Center for a Stateless Society wrote a couple days ago (before the shootings in Tucson), in a post titled “Hope, Reason and Discipline — Not Terrorism”:

Terrorism can not defend anyone from tyranny. As the label “police state” becomes a more and more apt description of the United States, people who apparently perceive undisciplined insurrection as the only hope for a free society will, unfortunately, lash out. Such appears to be the case with regard to incendiary packages and envelopes found in Maryland and Washington, D.C. today and yesterday. A more careful and sophisticated understanding of how to achieve revolutionary social change reveals the folly of such an approach. One can not blow up a set of dysfunctional social relationships. Ours is a war of ideas. Spreading those ideas and the hope they offer is lifesaving work.

What I really have to take exception to in Rick’s post are the words I’ve italicized in this paragraph:

The arbitrary “targeting” — is that now a loaded (oh crap!) word, or what? — of individual representatives of the government by madmen unhinged by Faux News commentators’ drumbeat of raucous and rotten rhetoric is not a Revolution. It is the senseless violence of criminals and their ethically-challenged sponsors, such as Glenn Beck and Sarah Palin who, frankly, bear every bit as much guilt.

Rick goes on to write:

You say you want a Revolution, you need to be clear what you say, what you mean, and why you want it. We all want to change the world. You say you’ve got a real solution? Well, you know…we’d all love to see the plan.

If all you want to talk about is destruction, you can count me out.

Ditto when you say you want to change the Constitution.

. . .

What a lot of people want — what I want — is to see the Constitution — not changed, and not just read, but followed. I want a government that recognizes that the ideals delineated in the Constitution have allowed this Nation — once-great — to survive for two-and-one-quarter centuries now. The recent reading of the Constitution by Congress is a good start. Reading the Constitution is something we should all do.

Often.

One of the things you’ll learn if you read the Constitution is that the government is supposed to have certain limited powers. The government is not — to use a phrase Bunny Chafowitz loves — “the be all and the end all.” It serves a particular purpose, which is mentioned in the Preamble. And it is supposed to have only so much power as it needs to accomplish those ends.

As a counterpoint to Rick’s reverence for the Constitution I offer the words of Lysander Spooner:

Inasmuch as the Constitution was never signed, nor agreed to, by anybody, as a contract, and therefore never bound anybody, and is now binding upon nobody; and is, moreover, such an one as no people can ever hereafter be expected to consent to, except as they may be forced to do so at the point of the bayonet, it is perhaps of no importance what its true legal meaning, as a contract, is. Nevertheless, the writer thinks it proper to say that, in his opinion, the Constitution is no such instrument as it has generally been assumed to be; but that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, different thing from what the Constitution itself purports to authorize. He has heretofore written much, and could write much more, to prove that such is the truth. But whether the Constitution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.

Before the Civil War, Spooner, with lawyerly optimism, had written his exhaustively-researched and tightly-reasoned The Unconstitutionality of Slavery to prove that the Constitution was “no such instrument” as it had “generally been assumed to be,” and that contrary to such widely-held assumptions the Constitution as then written did not authorize slavery. The above paragraph was written after the Civil War. Whether Spooner’s interpretation of the Constitution was right or wrong, the Constitution had been powerless to prevent slavery or the aggrandizement of federal power following the bloody conflict which finally ended it, and was therefore “unfit to exist.”

In more recent times the Constitution has either authorized or been been powerless to prevent, inter alia, the government-mandated taxpayer bailout of Big Banking and the lie-fueled prosecution of unjustified wars, and is still unfit to exist.

I don’t watch Faux News or Glenn Beck or listen to anything Sarah Palin has to say, so I can’t be sure of the basis of Rick’s charges against them. But I’m absolutely sure that none of them have said, as Spooner did and I have, that the Constitution is unfit to exist.

And yet, I’m also absolutely sure that I am not to blame for the violent actions of madmen. (See also Patrick at Popehat here and here, and Norm Pattis here and here.)