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War Watch
First appeared in print in The Rhinoceros Times, Greensboro, NC
By Orson Scott Card October 28, 2002

The Rule of Law

America used to have a Constitution.

Of course, we still have a written document. It describes a wonderful fairyland in which power is shared among three branches of government and between the federal government, the states, and the people.

We even had a real Constitution -- a set of traditional rules that had the weight of years behind them, and which often coincided with the written Constitution.

But within my lifetime, bit by bit, both the written and the real constitutions have worn away, until today they both hang on by no more than a thread.

It all began with the best of intentions. Brown v. Board of Education was without question a vital step on the road to redressing the long history of institutionalized mistreatment of the African-American citizens of this nation. The court decision usurped power to the federal courts that rightfully belonged to the states -- but it was a decision that helped us avoid a second Civil War.

Similarly, we all turn our heads and pretend not to see that we have created a system of double jeopardy without bothering to amend the written Constitution first.

In many venues -- not just the South -- it was impossible to get a local jury to convict a white defendant of crimes against a black victim, so justice demanded that a separate set of federal charges be available.

The legal fiction is that the state tries the defendant for murder; if he's acquitted, then the federal courts try the same defendant for the same actions, only now it's the crime of "violating the victim's civil rights by killing him."

It's double jeopardy, of course, but taking into account that in some venues, a white murderer of blacks was in no jeopardy at all from local courts, the intent of the Constitutional ban on double jeopardy was not violated.

And in practical terms, unless the black citizens of the United States could be given reason to believe that those who committed crimes against them would be tried and punished, they would have had no reason to have any loyalty at all to a government that could not or would not protect them.

In other words, there are times when it truly is necessary to amend the Constitution informally. I'm glad those "amendments" were made, and I have no patience with those who, for legal form's sake, advocate revoking them.

The trouble is that once you open that door of informal, extra-Constitutional amendment, a lot of other "causes" of far less worthiness are able to sneak through it.

And even though the outward forms of the Constitution seem to be observed, you can soon find yourself in a situation where the forms are only a hollow shell behind which what is really going on is the naked exercise of power to the advantage of one group over all others.

The great danger in a republic such as ours is that the people will become divided into warring groups that each conceive of the nation, not as the common property of all, but as their own property to be manipulated to their own advantage at the expense of the other groups.

Always there is a noble-sounding "cause" to justify such cheating, but it remains cheating, and it remains selfish, and it further divides and weakens the nation that tolerates it.

Some more recent examples. Roe v. Wade, for instance. There was no pressing emergency to require amendment of the Constitution by judicial fiat. Even the judges who created the "right of privacy" out of thin air did not dream of how prevalent abortion would become because of their decision to federalize and decriminalize it. They imposed strict limitations back in 1973 -- abortion was only permitted in the first trimester, for instance.

But with each new trial, the right of privacy was found to trump more and more laws, until now the right to abortion sweeps aside every other consideration -- freedom of speech and assembly and religion (just try assembling a group to pray in front of an abortion clinic and see what happens), and the right of a viable baby, perfectly capable of life outside the womb, to live in spite of his mother's wish to kill him.

Nor did abortion advocates -- supposedly people who support "a woman's right to choose" -- foresee that in China and India the result of easy (or even mandatory) abortion would be the deaths of girl babies far out of proportion to boys.

Easy, legal abortion has probably killed far more female human beings each year than illegal back-alley abortions ever killed through all of human history. To save the lives of a few women, we now see the slaughter of millions of baby girls in the womb.

That is the law of unintended consequences. You never know where "little" changes will lead.

That's why our founding fathers, in their wisdom, made the process of Constitutional change difficult, laborious, and slow.

You had to take the time to live with an idea in order to know whether it would make good law.

You had to make sure the new idea was a real change of belief, and not just a passing fad.

You had to make sure it was worth binding future generations to the decisions made today.

This "Constitutional creep" is dangerous no matter who does it. It was dangerous when President Reagan tried to circumvent the Constitutional limitation that only Congress could authorize the spending of money, by using the private sale of weapons abroad to finance the Nicaraguan Contras, whom Congress had specifically voted not to fund.

But by and large, in recent years this utter contempt for the Constitution and for written law in general has become the specialty of the American Left. After all, they had the most "causes" that were "worth" tossing aside old-fashioned laws and rushing through radical changes against the will of worried legislatures.

Here's how it worked. First, the Left captured the judicial system by capturing the law schools. Those who believe in judicial restraint and rule of law can still get law degrees, but they are pounded with propaganda from the Left in most American law schools, and the leftist American Bar Association has gone a long way toward ensuring that most courts are packed with leftist activist judges.

Second, because the Left has a virtual monopoly on "mainstream" media, they can always paint laws that stand in their way as "unfair" or "anti-democratic."

We see the fruits of it in Constitutional catastrophes like the attempt of the Democratic Party to steal the Florida elections in 2002 by getting the Florida supreme court to rewrite election law after the fact, not because of any single principle, but solely in order to get the desired outcome.

Another one was the decision by the New Jersey supreme court to, again, strike down election laws for no other reason than to guarantee that a Democrat would be elected to the U.S. Senate from that state. Had the situation been reversed, and had it been a corrupt Republican incumbent who withdrew from the race after the deadline for ballot changing had passed, does anyone imagine for a single moment that the New Jersey court would have allowed the Republicans to change the law?

The fact is, the Republicans probably would not have asked -- that is, prior to this recent decision they wouldn't have. Now that the rules have changed, you can bet they'll ask.

You can also bet they'll be turned down.

Because all these decisions are outcome based. That is, they do not defend an established, agreed-upon principle. The judges instead look at the outcome they want, and then make up some excuse for why they have the power to change laws that were constitutionally established.

And let's not even get into the Democratic Party's defense of Bill Clinton.

OK, let's do, just for a moment. Clinton clearly committed perjury in order to disadvantage a woman who was suing him for actions he certainly committed.

The Democratic Party was already so advanced in their contempt for law that nobody seems even to have noticed that it would not have harmed the party one whit to get rid of Bill. Who would have succeeded to the Presidency? Al Gore, a Democrat. And then Al Gore would have been the incumbent in 2000, and it's far more likely he would have carried enough states to win election to a full term.

But the Democratic Party seems to believe that it is so essential to the government of America that it is all right to throw out any number of laws, as long as the outcome is to keep the Democratic Party in power.

But hear them whine when these very tools are used against them -- as when the Supreme Court narrowly prevented the Florida Court from stealing the presidential election of 2000 for Al Gore. Oh, hear them whining still about our "court-appointed president."

Forgetting, of course, that if the U.S. Supreme Court had not prevented the Florida coup-d'etat, Al Gore would definitely have been a court-appointed president.  Somehow I think Leftists would not have called him by that epithet. They would simply have called Republicans "sore losers."

Here is the deepest problem with this tendency to rewrite the Constitution whenever it stands in the way of the party that controls the courts. Not that it in the long run it cuts both ways, though it does.

The problem is that all laws lose their moral force.

When the public perceives -- correctly -- that laws exist only as long as the strongest party says they exist, and then are swept away the moment the people in power find them inconvenient, then why should the people continue to obey any laws at all?

Why shouldn't everyone cheat as best they can?

Laws only have moral force when it is perceived that they bind everyone equally, that the strong as well as the weak respect the law and use only Constitutional means to change it.

The legacy of the defense of Bill Clinton, and Roe v. Wade, and the attempted coup in Florida, and the shattering of election law in New Jersey this year, is that all laws are now that much weaker, and more and more citizens are coming to believe that only suckers obey the law.

And when citizens believe that, you no longer have a government. You might have the hollow forms, but what is really going on is anarchy, in which the strong grab whatever they can get away with.

Are we in anarchy yet?

Not quite. But we're looking down its throat.

As a Democrat who believes in all the good things my party has long stood for, I repudiate all these illegal, anti-Constitutional actions that have been taken in the name of my party.

I believe the rule of law is more important than whether one party or another prevails in this or that election, or whether any one man remains in office after having shown utter contempt for law.

And from this point on, I will never again vote for any candidate, of any party, who does not specifically say that he or shee believes that only legislatures can make laws, and courts and presidents should be bound by those laws, and that he or she will vote to appoint or confirm only judges who uphold the same belief.

And if enough people join me in this policy that the Democratic Party, which hardly has a single candidate right now who can plausibly make such a pledge, is thrown out of office for a time, so be it.

Because whatever good the Democratic Party can do, it can only do it in a nation in which laws are respected.

If you throw down all respect for law just so you can remain in power, then in the long run, there is no power for you to keep.

For when the people do not respect the law, what difference does it make what laws you pass?

Copyright © 2002 by Orson Scott Card.

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