Editorial:
The
Spirit
of
Lawfulness
11/12/04
One of the concepts often lost in the debate on law is the more natural concept of lawfulness: the respect by authorities for the intended spirit of a law; consistent treatment under the law for all; erring on the side of rights, at least when urgent matters of safety are not immediately on hand; giving primacy in lawmaking and enforcement to the fundamental ideals lying at the root of the idea of law itself -- the protection of life, liberty, and property from their violation by others. Law and order types tend, perhaps not universally but typically, to apply these standards one-dimensionally and in a lopsided fashion. The law is the law, break it and you should be punished and it's your fault -- but when enforcers of the law break the law in the process of ostensibly enforcing it, that's okay. At least it's okay for them to stretch the law and let the courts sort it out later. And if the letter of the law allows a law enforcement official to violate a law's spirit, that's okay too. As usual, this week's news offers multiple examples of such rationalized lawlessness by enforcers. In Georgia, police were shot down by the state Supreme Court on a search for cocaine unlawfully conducted over the objections of one home owner; the home's other owner had consented. In Illinois, that state's Supreme Court objected to drug dog searches incident to a mere traffic stop; the US Supreme Court heard arguments on the case this week. Ann Arbor's police chief plans to ignore the city's new law passed by the people's direct vote, because a loophole in the law allows him do so. On the other side of the globe, police officers in Thailand hundreds of young club-goers to undergo drug tests over a three hour time period and threaten the club owner with extra-legal restrictions on club activity -- almost trivial next to the thousands of murders of drug suspects committed by police in the government's drug war, but a violation nonetheless. A right does not completely exist in practice if the owner of that right is forced to undergo years of time and expense fighting for it in court -- all the way to Supreme Court, in some of these cases after winning in lower courts. Only when society's institutions proactively seek to respect our rights, do they have their intended protective effects on the lives of the citizenry. While one might afford some slack to an officer who makes the wrong judgment call in response to a hurried and pressured situation, the deliberate testing of the boundaries of constitutional protections by our officials is morally repugnant. And the deliberate violation of them, a daily occurrence in cities around the country, why is this not punished as a crime? After all, isn't it one? Most law and order types don't like that kind of logic. But it is merely a consequence of the all important standard of equal justice under the law. Ultimately, lawfulness is about more than the boundaries of when a person is protected from search and seizure by government forces. True lawfulness is based on the idea that the individual has the right to live in freedom. Freedom should not be taken away by individuals (e.g. violence, kidnapping, theft or vandalism); freedom should not be taken away except for exceptionally strong reasons by governments (e.g. prison and prohibition laws). It is a travesty, and a massive perpetration of lawlessness, that hundreds of thousands of Americans, people who have in no way violated the safety or property of others, are living large portions of their lives locked inside cages. Though legislation exists which purports to justify it, the unjustifiable cannot be justified. That which is lawless in its essence is not made truly lawful through the passage of mere laws. Every day these hundreds of thousands languish behind bars, each of the four thousand or so times a day one more unlucky one is arrested for a drug offense, is a crime unto itself. Every act of perjury by a law enforcer, each deliberate decision by an officer to test the limits of constitutional rights to the detriment of the individual upon whom the test is conducted, degrades the morality of our society. The totality of all of this makes up an historic evil. Our cause is to replace the institutionalization of injustice with an enlightened spirit of respect for individual lives, one at a time, and for human life as a whole.
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