TCS Daily

Can a People Have Too Much Respect for the Law?

By Lee Harris - June 27, 2005 12:00 AM

Can a people have too much respect for the law?

This might appear to be a strange question to ask. Americans, after all, seem to believe that it is impossible to have too much respect for the law. Yet a visitor to our shores in 1867 -- and an English barrister at that -- disagreed with this proposition.

The visitor was William Hepworth Dixon, whose book, New America, is a delight to read. By and large, he found us as a people quite likable, unlike some of the earlier travelers from England, such as Charles Dickens and Francis Trollope, both of whom agreed that we were simply deplorable barbarians. Not so Dixon. Yet there was one aspect of our national character that disagreed with him. Our "deference to the Law, and to every one who wears the semblance of lawful authority, is so to occasion a traveler some annoyance and more surprise," Dixon wrote. "Every dog in office is obeyed with such unquestioning meekness, that every dog in office is tempted to become a cur."

Dixon singled out the Justices of the Supreme Court, noting with apparent dismay that they are "treated with a degree of respect akin to that which is paid to an archbishop in Madrid and to a cardinal in Rome." Then he concludes with an admonition:

"More than once I have ventured to tell my friends, that this habit of deferring to law and lawful authority, good in itself, has gone with them into extremes, and would lead them, should they let it, into the frame of mind for yielding to the usurpation of any bold despot who may assail their liberties, like Caesar, in the name of law and order."

Our English traveler might be relieved to know that there is one group in contemporary American society that did not inherit our exaggerated respect for the law, namely, the very Justices of the Supreme Court and other high ranking figures in our judiciary system. For them, the mere fact that the elected representatives of a community have made certain laws that they deem fit and proper is no reason to respect these laws. Let a state pass laws that ban flag burning or gay marriage, and you will see just how quickly the appointed guardians of our legal system act to make these laws null and void. No undue deference for the mere idea of law restrains our nation's judiciary from deciding, by virtual fiat, what laws may stay on our books, and what laws must go.

This same contempt for the law, however, is not shared by the average American, who displays in 2005 the same exaggerated respect for the law that Dixon observed in 1867. In particular, the general populace continues to adhere to the view that those who have been entrusted with the task of interpreting the law -- especially those sitting on the highest court of our land -- must be deferred to, no matter how absurd or capricious their rulings may appear when approached from the perspective of sheer logic.

For example, the right of privacy, though nowhere explicitly recognized by the Constitution of the United States, is the basis of the woman's right to abort her child, despite the fact that we have known for some time now that a woman's child is in fact the product of both the male and the female. This same right of privacy, however, does not extend to the rights of a cancer victim to smoke pot in his bedroom, even when it has been prescribed by a physician, and even when the state in which he lives had passed a law that permitted the usage of marijuana under such circumstances.

To seek rhyme or reason in such decisions is as vain an inquiry as to seek the same qualities in the ukase of a Russian Czar or the whims of an Oriental despot. True, our judges must write their own justification for their acts of judicial usurpation, whereas traditional despots had to hire court intellectuals to do such menial jobs. But, hey, isn't that what law clerks are for?

What explains this mystery? How did Americans relinquish the fundamental right of free people to govern themselves without fear of the capricious intervention of an oligarchy whose values are often diametrically the opposite of the values of those over whom they rule? An oligarchy, moreover, that never needs to worry about being tossed out on its ear or overthrown in a revolution; an oligarchy whose supremacy remains unquestioned even by those who are most bitterly opposed to its high-handed and imperious acts.

Our well-known idolatry for the United States Constitution might seem to explain this. For many Americans, this document plays the same role the Koran does for devout Muslims -- it is a divinely inspired utterance which, upon consultation, permits us to make decisions about matters that, at first glance, might seem to have nothing to do with it.

For example, should the Boy Scouts be forced to accept openly gay men as Scout Masters? Now here is a question that neither James Madison, nor the other authors of the Constitution, addressed -- and, indeed, it is a question that they would never have dreamed of addressing. Yet, when the Supreme Court decided that this was a proper subject for judicial review, it was asserting that, yes, this was an issue that could be and, indeed, should be decided by consulting the U.S. Constitution. True, they ruled in favor of the Boy Scouts, and thus appeared to be acting with sensible restraint; but this sensible restraint is purely illusionary -- and a simple example will show you what I mean by this.

Suppose that you and your husband get into a fight over how to raise your children. Your husband goes to a family friend, Mr. Jones, and says, "I want you to decide which of us is right. Whichever side you chose, we agree to abide by it." You, however, emphatically disagree with this suggestion, and your argument is a simple one: "Why should we let Mr. Jones become the final arbiter of our lives? If we give him the right to determine which of us is right, then we are, in essence, giving him the right to control our decisions about our children, and, ultimately, we are turning over to him the final say so about how to raise our kids. It's not that I have anything against Mr. Jones personally. He may be a good man, and even a wise counselor. But if we start to depend on him to settle our difference, how will we ever learn to settle these differences on our own?"

Now, in this case, what difference does it make whether Mr. Jones decides that the wife is right or that the husband is? The fact that Mr. Jones appears to be taking the wife's side in the conflict, for example, does not alter the fact that, from the wife's point of view, Mr. Jones never had the right or the authority to make such a decision in the first place. In her eyes, the very fact that Mr. Jones merely accepted the authority to review her decisions about her children, against her will, is sufficient grounds for considering the decision a usurpation of power -- and, in making this point, she is absolutely right.

The moment the American courts decided that they had the authority to review how the Boy Scouts should operate their own institutions, from that moment on the courts had placed themselves in the position of having the final say so over how the Boy Scouts could operate, thereby flinging the door wide open for future meddling and interference. So what if they take the side of the Boy Scouts this time? Next time they could just as easily take the other side. In short, once the principle has been established that the courts have a right to decide other people's problems, then the people whose problems are being decided have forfeited their fundamental right to work out their differences without fear of the intervention of a third party possessed of virtually unlimited power to compel obedience.

There is an enormous chasm between a situation in which both parties in a dispute seek arbitration from a third party, and a situation in which one party in the dispute is able to force the other party to accept the decision of a third party arbiter. In the first case, the two parties have mutually agreed to let someone else settle their differences. In the second case, there is no such agreement. Indeed, in this case, one of the parties, e.g., the Boy Scouts, believes that it alone has the right to settle the dispute in question, and violently resists being forced to appeal to the verdict of a third party, no matter how disinterested this party may claim to be. Its position is like that of a father who refuses to accept the authority of any outsider to tell him how to bring up his kids -- because once such an outside authority has been permitted to intrude itself where it is not wanted, what is to keep it from intruding again?

We have become accustomed to the "right" of our courts to review every aspect of life; we have even become accustomed to the "right" of our courts to decide, unilaterally, what it chooses to review and what it chooses not to review. Yet no where does the Constitution authorize this right of universal judicial meddling -- rather, this "right" has been steadily amassed over the course of the last two centuries, beginning subtly with John Marshall's famous decision in Marbury vs. Madison, and expanding gradually until the point has been reached that states cannot pass laws against gay marriage or the burning of an American flag -- not even if every last adult in that state approves of these laws. All that is necessary to provide the pretext for judicial review is to have one single plaintiff ask the court to decide whether the court should decide -- and each time the court decides that, yes, it should decide, it simultaneously decides that, no, the people cannot decide.

This is a monstrous usurpation of the autonomy of a free people -- and it is only the average American's unthinking and automatic respect for the law that keeps such judicial law-breakers -- in the most literal sense -- from being treated in the same way that other usurpers have been treated by a free people.

Barrister Dixon worried that a Caesar might arise among us, a bold despot who would subvert our liberties in the name of law and order. But, as it turns out, no bold despot on the order of Caesar has proven necessary to undermine the American tradition of self-government; instead, the despotism has come from judges who have felt free to read into the virtual tabula rasa of the Constitution whatever politically correct fad or passing fancy that has become intellectually fashionable among the educated elite.

A nation that has entrusted its civil life to lawyers and professors has embarked on a course that can have only one destination -- the tyranny of a few over the lives of the many.

The Dutch philosopher Baruch Spinoza argued that those with power had an unlimited right to exercise this power, and observed that they invariably will seek to push this right to the utmost extreme that they can get away with -- anticipating Lord Acton's famous remark about the corrupting effects of absolute power. Yet Spinoza offered a ray of hope. Eventually, he said, those who are exercising unchecked and capricious power will push people too far, whereupon the latter will rise up and, often in a spasm of irrational frenzy, cast out the few who have arrogated to themselves mastery over the fate of the many.

Unless, of course, the many happen to be made up of Americans, who seem to have an unlimited capacity to be pushed around by those who claim to be speaking in the name of the law.

So, yes, it is possible to have too much respect for the law. Indeed, it is tempting to go further and to elicit from this bizarre paradox a more fundamental truth about human societies -- every society ends by being destroyed by too much of whatever good thing it began by thinking it couldn't get enough of. Too much gold for Spain; too much military prowess for Germany; too much empire for England; too much respect for law for us?

Lee Harris is author if Civilization and Its Enemies: The Next Stage of History.


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