Respecting the Constitution

Back when Barack Obama was first running for president, one argument for his candidacy that resonated with me was that a professor of constitutional law was just the sort of person we needed to clean up the war crimes and other illegalities of the Bush years. What they — and I — forgot is the converse of the dictum on laws and sausages often misattributed to Bismarck, that those who acquire expertise in the workings of the law are rarely those who hold them in great respect. To put it differently, when people spoke of cleaning up the illegal activities of the Bush administration, what they (and I) understood was a retreat into general respect for constitutional principles.

But what a lawyer is likely to mean — and Obama is certainly, above all, an ingenious lawyer — is working to map out the exact limits of the law and the president’s authority, to be sure that illegal is cleanly separated from legal, while no iota of presidential power is given up because of unnecessary scruples about the law.

The president’s legal advisor will inevitably have difficulty fulfilling his duty to warn his client away from encroaching too near on the border of illegality. The task is impossible when the client is himself.

This is not to say that someone who abuses a security clearance to leak secrets — however righteous his motives — does not deserve to be punished. It is the job of the president to defend the law. But Obama has shown enormous willingness to forgive the crimes committed from within the government, though these were horrible violent crimes. People like Snowden and Assange, whose crime is mainly to embarrass his government, are pursued with every legal tool at his disposal.

One of the things I most respected about Obama was his commitment to lowering the temperature on issues that had inflamed passions in Washington and beyond. Even when the right wing rebuffed his overtures, I respected the effort. But on the crucial issue of government secrets he seems to be intentionally driving matters to a fever pitch, asserting powers that he, in principle, might be entitled to, but that his predecessors have generally not dared to wield. The fact that he needs to reach back to a legal tool forged in the panic of WWI and barely touched since would give pause to a man less certain of his own righteousness.

I fear that the opponents of Obama who described him as a megalomaniac narcissist may have had some genuine insight that eluded me.

Secret laws

I think it was from Solzhenitsyn, somewhere in The Gulag Archipelago (though I can’t find the quote right now, so maybe it was some other source) that Stalin was supposed to have ordered that the Soviet criminal code of the 1930s not be published, with a declaration something like “The only people who want to know what the law says are those intending to break it.”

This seemed to me like merely a good example of the Looking-Glass logic of totalitarianism until I read in Jane Mayer’s The Dark Side about the secret legal opinions that undergirded the Bush torture regime. It’s true that you can’t have secret laws in the US — at least, I think it is — but reinterpreting the law, and making the reinterpretation itself and the underlying reasoning secret, comes pretty close. It’s hard to say you’re still living under the rule of law — in a Rechtsstaat, as the German word says pithily — when the government is constrained only by its own secret interpretation of the law.

And now we have, in the blossoming scandal of US government surveillance of private citizens, the main documents demonstrating government malfeasance are secret court orders justified by secret executive-branch legal opinions.

I am reminded of when my 10th grade history teacher told us that the US Constitution was so inspiring that even the Soviet Union and other totalitarian states had mimicked some of its language in framing their own constitutions, even if their practice was very far from the true meaning of those words. This was supposed to give us a lesson about the perfidy of the Soviets, I suppose, but I asked then — snotty kid that I was — whether that didn’t just mean that a constitution is useless for protecting individual rights.

Consent of the governed

Speaking at the recent Conservative party conference, a government minister has said that the mass arrests and prison sentences for decent citizens who chose to rob shops and set buildings ablaze in London and other cities during a recent wave of looting, had brought the law into disrepute.

Our laws against arson were introduced centuries ago, when a typical London building was built of wood. There have been huge advances in fire-fighting technology since then. Our blanket ban on arson has been discredited, because it failed to keep up with these changes. And what about “vandalism”? Should the law really be fixated on the practices of wandering bands of hairy Germanic tribesmen? Can anyone genuinely say he thinks our laws against burglary are fit for a 21st century economy? By allowing a portion of the shops’ overpriced merchandise go up in flames, and another portion to the informal vending sector, where it is substantially marked down, we bring thousands of decent firebugs and thrifty shoppers back within the law, restoring the legitimacy of the penal system, improving productivity and delivering hundreds of millions of pounds of stimulus that the economy sorely needs.

No, sorry, I got that wrong. The correct quote is:

The 70mph motorway speed limit has become “discredited” and resulted in millions of motorists breaking the law, Transport Secretary Philip Hammond said today as he confirmed plans to consult on allowing it to rise to 80mph.

Mr Hammond told the Conservative Party conference the move would “restore the legitimacy” of the system and benefit the economy by “hundreds of millions of pounds”.

He said: “The limit that was introduced way back in 1965 – when the typical family car was a Ford Anglia.”

Mr Hammond said he owned an Anglia, as did Baroness Thatcher when she became an MP, but added: “Things have changed quite a bit since then. There have been huge advances in car technology, road deaths have been reduced by three-quarters.

“Meanwhile, the 70mph limit has been discredited because it failed to keep up with these changes – with almost half of all motorists exceeding it, bringing the law into disrepute.

“So I will consult on increasing the limit on motorways to 80 mph, bringing millions of decent motorists back within the law, restoring the legitimacy of the speed limit system, speeding up journey times, improving productivity and delivering hundreds of millions ofpounds of net economic benefits.”

We should start making a list. Laws that need to be ruthlessly enforced when they are disobeyed en masse: Arson, burglary, “theft by finding”, receiving stolen goods. Laws that need to be abolished when they are disobeyed en masse: Tax laws, speed limits. Hmmm. What’s the pattern? Prosperum ac felix scelus virtus vocatur. [Seneca. A successful and happy crime gets to be called virtue.]

Of course, Monty Python nailed it while I was still a toddler. In this case, the Mouse Sketch:

Make a thing illegal and it acquires a mystique. Look at arson – I mean, how many of us can honestly say that at one time or another he hasn’t set fire to some great public building? I know I have. The only way to bring the crime figures down is to reduce the number of offences.

British riots, further reflections


From the BBC web site:

Home Secretary Theresa May has asked the Metropolitan Police to check whether banning theft and arson is an effective strategy for preventing crime. Some criminologists have claimed that widespread looting and arson mean the laws are not having the desired effect. Speaking on BBC Radio 4’s Today programme, Mrs May hinted that the riot laws remained under review. She added: “There’s not much point in having laws that are inefficient.” She suggested that the funds currently spent on policing might be better spent on reconstruction.

No, sorry, I got that wrong. It wasn’t the Home Secretary, it was the Chancellor of the Exchequer. The correct quote is:

Chancellor George Osborne has asked the Inland Revenue to check whether the 50p top rate of income tax is actually making money for the government. Some economists have claimed that tax avoidance and evasion mean the rate is raising less income than expected. Speaking on BBC Radio 4’s Today programme, Mr Osborne hinted that the 50p rate remained under review. He added: “There’s not much point in having taxes that are very economically inefficient.”

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