the rule of law, but only my law
I've seen a number of local prosecutors announce they will refuse to enforce laws against abortion now that these laws can be passed by democratically-elected state legislatures.
Ah, so we only believe in the rule of law when the law is handed down from on high by an unelected Supreme Court. When the law is passed by our own democratically-elected state legislature, then we don't have to enforce laws we don't like?
How is this different from Trump's EPA refusing to enforce laws against pollution, or Trump's IRS refusing to hand over his tax returns upon a lawful request from Congress, or Trump asking state election officials to "find" more votes for him? How is this different from state clerks refusing to endorse marriage certificates for same-sex couples?
Civil disobedience is different -- civil disobedience is when you publicly break a law and accept punishment because you believe the law is unjust and want to protest the unjust law in the hope that people will see the injustice and change the law.
Refusing to enforce a duly passed law because you don't like it -- this is the breakdown of the rule of law.
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I was reading an essay the other day that argued we're not heading for a dictatorship in the US, no, instead we're heading for anarchy, because we've divided into two camps that no longer respect the rule of law, instead each camp only respects what their own camp wants.
Sure, when abortion is illegal, then women will get illegal abortions. Just like when drugs are illegal, then people will get illegal drugs. And when crossing the border is illegal, then people will make illegal border crossings. When gay sex is illegal, then gays will have illegal sex.
If it were as easy to stop a behavior as passing a law, then the world would be a completely different place.
Imagine a world in which everybody drove under the speed limit, everybody came to a complete stop at Stop signs, everybody signalled before changing lanes, everybody took turns when lanes merge, etc. Ridiculous, right? Passing a law doesn't make people behave.
And, of course prosecutors have discretion in how to apply their resources. There are too many lawbreakers to catch and punish them all, so you set your priorities, you let a lot of minor lawbreakers go, you offer plea bargains as compromises, etc.
But when you openly announce that you will not enforce a particular law because you disagree with it, you are putting yourself above the law.
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What to do about unjust laws? I grew up when gay sex was illegal -- I had gay sex anyway -- and I worked to have these laws overturned. I also refused to take a job in which I would have to enforce laws I considered to be unjust.
It's tough, in a democracy, when you not only disagree with a law, but believe the law itself is unjust.
But as a prosecutor, if you disagree with a law so much that you feel you cannot enforce it, you should resign. You're in the wrong job, on the wrong side. Go do something else with your life. Become a defense attorney instead, for example.
When I was a brand new lawyer, I didn't disregard the rule of law, I found a job enforcing laws that I believe are just. I avoided taking a job enforcing laws that I believe are unjust.
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Would I have taken part in the Underground Railroad to bring slaves to freedom, for example? Probably? I certainly wouldn't have taken a job enforcing the Fugitive Slave Law.
But if you found yourself in a job, and part of your job was enforcing the Fugitive Slave Law, you should've resigned.
As a matter of personal integrity, don't be a prosecutor if you personally can't stomach some of the laws you are called upon to enforce. Go find a different job.
That's how we respect the rule of law while fighting unjust laws. You work to change the laws, but you don't undermine the rule of law. Otherwise, what's the point? We can all just shoot each other then.
You could move to a different state, where they don't have that unjust law. You could remain, but engage in civil disobedience, and go to jail to protest the unjust law. You could secretlly help people to break the law -- but certainly not as a prosecutor -- and with the full knowledge that you may pay the price if you get caught.
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Democrats seemed perfectly happy to let the Supreme Court do their "dirty" work for them, legalizing abortion and same-sex marriage, forcing Middle America to go along with edicts from unelected Justices, even though these policies would never have passed Congress. Now that the shoe is on the other foot, Democrats cry that the Supreme Court has gone rogue. Well ... power can be used by both sides. What makes your use of that power legitimate, but their use of that power illegitimate? If now, the Constitution is "only what six Republican Justices say it is", then what was it before?
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I was already giving $$$$ each year to help women get abortions, and I'll continue doing so. And I'll continue to hope that the US can find a durable compromise that allows women to get abortions under certain circumstances, while also recognizing the rights of the unborn. Maybe we'll have to fight over it for a decade or two before we find a new compromise that is based on democratic legislation rather than judicial fiat. For now, the pro-choicers and pro-lifers seem ready to fight, not ready to compromise. I hope that time will calm things down.
Ah, so we only believe in the rule of law when the law is handed down from on high by an unelected Supreme Court. When the law is passed by our own democratically-elected state legislature, then we don't have to enforce laws we don't like?
How is this different from Trump's EPA refusing to enforce laws against pollution, or Trump's IRS refusing to hand over his tax returns upon a lawful request from Congress, or Trump asking state election officials to "find" more votes for him? How is this different from state clerks refusing to endorse marriage certificates for same-sex couples?
Civil disobedience is different -- civil disobedience is when you publicly break a law and accept punishment because you believe the law is unjust and want to protest the unjust law in the hope that people will see the injustice and change the law.
Refusing to enforce a duly passed law because you don't like it -- this is the breakdown of the rule of law.
-----
I was reading an essay the other day that argued we're not heading for a dictatorship in the US, no, instead we're heading for anarchy, because we've divided into two camps that no longer respect the rule of law, instead each camp only respects what their own camp wants.
Sure, when abortion is illegal, then women will get illegal abortions. Just like when drugs are illegal, then people will get illegal drugs. And when crossing the border is illegal, then people will make illegal border crossings. When gay sex is illegal, then gays will have illegal sex.
If it were as easy to stop a behavior as passing a law, then the world would be a completely different place.
Imagine a world in which everybody drove under the speed limit, everybody came to a complete stop at Stop signs, everybody signalled before changing lanes, everybody took turns when lanes merge, etc. Ridiculous, right? Passing a law doesn't make people behave.
And, of course prosecutors have discretion in how to apply their resources. There are too many lawbreakers to catch and punish them all, so you set your priorities, you let a lot of minor lawbreakers go, you offer plea bargains as compromises, etc.
But when you openly announce that you will not enforce a particular law because you disagree with it, you are putting yourself above the law.
-----
What to do about unjust laws? I grew up when gay sex was illegal -- I had gay sex anyway -- and I worked to have these laws overturned. I also refused to take a job in which I would have to enforce laws I considered to be unjust.
It's tough, in a democracy, when you not only disagree with a law, but believe the law itself is unjust.
But as a prosecutor, if you disagree with a law so much that you feel you cannot enforce it, you should resign. You're in the wrong job, on the wrong side. Go do something else with your life. Become a defense attorney instead, for example.
When I was a brand new lawyer, I didn't disregard the rule of law, I found a job enforcing laws that I believe are just. I avoided taking a job enforcing laws that I believe are unjust.
-----
Would I have taken part in the Underground Railroad to bring slaves to freedom, for example? Probably? I certainly wouldn't have taken a job enforcing the Fugitive Slave Law.
But if you found yourself in a job, and part of your job was enforcing the Fugitive Slave Law, you should've resigned.
As a matter of personal integrity, don't be a prosecutor if you personally can't stomach some of the laws you are called upon to enforce. Go find a different job.
That's how we respect the rule of law while fighting unjust laws. You work to change the laws, but you don't undermine the rule of law. Otherwise, what's the point? We can all just shoot each other then.
You could move to a different state, where they don't have that unjust law. You could remain, but engage in civil disobedience, and go to jail to protest the unjust law. You could secretlly help people to break the law -- but certainly not as a prosecutor -- and with the full knowledge that you may pay the price if you get caught.
-----
Democrats seemed perfectly happy to let the Supreme Court do their "dirty" work for them, legalizing abortion and same-sex marriage, forcing Middle America to go along with edicts from unelected Justices, even though these policies would never have passed Congress. Now that the shoe is on the other foot, Democrats cry that the Supreme Court has gone rogue. Well ... power can be used by both sides. What makes your use of that power legitimate, but their use of that power illegitimate? If now, the Constitution is "only what six Republican Justices say it is", then what was it before?
-----
I was already giving $$$$ each year to help women get abortions, and I'll continue doing so. And I'll continue to hope that the US can find a durable compromise that allows women to get abortions under certain circumstances, while also recognizing the rights of the unborn. Maybe we'll have to fight over it for a decade or two before we find a new compromise that is based on democratic legislation rather than judicial fiat. For now, the pro-choicers and pro-lifers seem ready to fight, not ready to compromise. I hope that time will calm things down.