The commentariat across the political spectrum have recently reveled in predicting imminent authoritarianism and the "literal death of democracy” unless sundry bugbears are stopped.
As Murray sees it, the United States’ hyper-complicated and outrageously voluminous law is much the same as no law at all for the ordinary citizen.
The catastrophizing is quaint. Perhaps they are too terrified, distracted, or dissembling to utter the truth obvious under closer examination: the United States ceased to operate as a constitutional democratic republic at least 100 years ago. Democracy isn’t “in peril”—it's dead and buried.
How did we get here? Social scientist Charles Murray (The Bell Curve) penned a fascinating but little-remarked book titled By The People in 2015. There, Murray argued the United States has become, in effect, a lawless society.
His assertion may strike some as odd, because lawless usually calls to mind a breakdown in order, like in Afghanistan or Somalia. But countries maintain order without righteous law all the time. Dictators the world over regularly keep the peace using suppression and intimidation. There’s no shooting in the streets, but there’s no sense of justice or predictability, either.
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LAWS, LAWS, AND MORE LAWS
As Murray sees it, the United States’ hyper-complicated and outrageously voluminous law is much the same as no law at all for the ordinary citizen. The oppressor isn’t a dictator but an incomprehensible and unpredictable justice system passed from one set of leaders' hands to another, from one political party to another. Murray writes:
[L]et’s talk about the legal system not as it looks from thirty thousand feet to law professors, where everything can be fit together and rationalized, but how it looks at ground level to ordinary law-abiding citizens … I am reminded of science-fiction author Arthur C. Clarke’s famous observation that “any sufficiently advanced technology is indistinguishable from magic.” From ground level, our encounters with today’s legal system as it actually functions are often indistinguishable from lawlessness.
Consider that, between federal, state, city, county, and judge-made law—along with truckloads of regulations and codes by state and federal agencies which carry the full force of law—an American today lives under something like 100 times as much law as his or her great-great-grandfather. That’s a chilling comparison.
Further, consider that the average American thoroughly understands few or none of the laws governing him. Sure, he possesses a vague sense of the basics and some traffic law, but that’s all. The law is like an iPhone: a miraculous device at which he glances all the time and uses for simple tasks without knowing the first thing about how the internal functions perform their magic.
Should the internal functions of the miraculous device go awry, the average citizen is helpless. He usually cannot afford skillful lawyers to interpret the laws or to defend him when he is forced to confront the legal system. A lawsuit or a criminal prosecution ruins him, regardless of his culpability. The wrongfully accused regularly plea bargain to avoid being crushed by the legal process. The citizen is told that ignorance of the law is no excuse for breaking it, but he cannot correct his ignorance himself nor pay to have others supplement it. James Madison wrote in Federalist #62:
It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?
Madison’s sketch of run-amok law bears an uncanny resemblance to the United States today. He highlights a fundamental truth Americans have forgotten amidst the partisan bickering over which byzantine laws to pass: representative lawmaking does not produce democracy when demos ("the people") cannot grasp the laws, either to express their disagreement with them or to follow them. In Madison’s view, such edicts aren’t real law, just dressed-up tyranny divorced from the ethos of a constitutional republic.
Were Madison alive to witness the present debacle, he might opine: The United States possesses no authentic law, only enforced order. A tyrant who inflicts his will with rifles and a legal priesthood who inflict their will with occult laws are functionally equivalent. In both cases, citizens lose all confidence in a coherent moral order of their own design underlying their day-to-day existence.
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RULE BY LAWYERS
The United States today might be better called a legitocracy—a government by the legal priesthood for the legal priesthood. Judges, lawyers, prosecutors, regulators, law schools, bar associations, and legal-activism conglomerates like the ACLU and GLAAD use their specialized knowledge to function as gatekeepers of society’s rules, politics, and culture.
Nothing is accomplished without the involvement of the legal priesthood. Armies of lawyers draft the bills for elected lawmakers, who enact their recommendations with only a vague understanding of their mandates. Then lawmakers turn the laws back over to prosecutors, regulators, and jurists for implementation and enforcement. More often than not, lawmakers come from the ranks of the law-schooled themselves.
Representative lawmaking does not produce democracy when demos ("the people") cannot grasp the laws, either to express their disagreement with them or to follow them.
Thus the legal priesthood operates in a closed system, disconnected from the populace and unaccountable in practice to anyone but themselves. To be sure, the priesthood declaims with great eloquence about “democracy," a "nation of laws,” and “the people"; but they amount to an insular social class—the card carriers in a one-party state. The rest of us are merely along for the ride.
One is reminded of the famous maxim: “Those who vote decide nothing. Those who count the votes decide everything.” In this case, one might say: “Those who enact the laws and vote for lawmakers decide nothing. Those who interpret and enforce the laws decide everything.”
Much like the aristocracies and theocracies of bygone days, the chieftains of the legitocratic class have fallen into warlording over which of them gets to make the rules that control the society and the state. They bicker over bizarre ideologies and disrupt elected government at every turn with nuisance lawsuits and politically-motivated prosecutions. They divert political and cultural issues from legislatures and elections into courtrooms. For example, Americans recently were treated to the groaning spectacle of a federal judge deciding how the President may operate his personal Twitter account, and whether biological men must be allowed in women’s locker rooms when they identify as women.
As in all warlordism, the resulting instability destroys the average citizen’s peace, predictability, and trust. He may not be able to articulate the government's devolution into feuding legitocracy; nevertheless, he senses that he lives in a failed state. He sees no sacred or impartial justice emerging from the legal system anymore. Virtue and common sense have no place and no reward. All he sees are wizards in tailored suits hurling thunderbolts at one another and terrorizing his day-to-day existence with their staggering litigiousness and self-righteous culture crusades.
The average citizen hesitates to publicly speak his mind, defend his person, establish a business, worship openly, or seek redress for real injuries.
Should anyone bother to ask him, the citizen will declare that the words chiseled on the Supreme Court building (“Equal Justice Under Law”) have turned to bitter irony. He watches with ballooning cynicism as the legal priesthood deploys word games to exonerate one another’s heinous manipulations, then turn and damn ordinary citizens like him to years of legal hell for standing up to their diktats. Justice is no longer a sacred right grounded in fear of God and His mystery. It is something you hire or receive as a reward for loyalty.
The legitocratic class has changed the motto of the United States from “In God, We Trust” to “There Is No God—Trust Us.”
Thus, the average citizen hesitates to publicly speak his mind, defend his person, establish a business, worship openly, or seek redress for real injuries. He fears to resist the legal system's incessant cultural bullying, lest he gets sucked into the vortex and land in Oz for years pursued by flying monkey lawyers. He can’t say how it happened, but the citizen knows he dwells at the bottom of a multi-tiered, politically corrupt, unchecked cabal of a legal system that cares nothing for his well-being.
Will the legal priesthood reform themselves? Will activist judges voluntarily give up their arrogated and unconscionable power of nationwide injunction? Will the Supreme Court allow voters and lawmakers to address questions of culture and politics through elections and legislation once again, rather than dictating both from the bench? Will law schools cease to operate as seminaries of progressive social engineering, imperious elitism, state-enforced credentialism, relativism, nihilism, identity politics, and other ever-shifting philosophies? Will the legal priesthood stop terrorizing the unanointed and favoring their own, demanding with one voice that the law revert to a form comprehensible and accessible to the average citizen?
Of course they will, right after unicorns fly out of Chief Justice John Roberts' robes.
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PULLING BACK THE CURTAIN
One cannot do better than echo Thomas Paine: “These are the times that try men’s souls.” Americans live in denial of their rationalized, systemic oppression. Over the last five or so generations, legalistic authoritarianism has progressively choked the average citizen's pursuit of happiness, like a slow garroting in a collar of recondite laws. If one doubts this, it’s only because he hasn’t experienced the extremities of the legal system’s insanity himself yet—the Kafkaesque horror of an endless, politically motivated IRS audit, or a court telling a father he must call his 6-year-old son a girl. The law and government do not serve the will of the people; it’s the other way around now.
The law and government do not serve the will of the people; it’s the other way around now.
Where does that leave the citizen? He is reduced to hoping the orderly lawlessness of the legal system remains confined to the courts and the government, that disorderly lawlessness does not erupt in public. He is right to be concerned. Americans are quarreling with one another in frustration. A growing number of individuals and groups misidentify the root of the tyranny and endanger public order, blaming vague and simplistic concepts like “white supremacy,” “fascism,” “the patriarchy,” “capitalism,” etc. for the oppression they sense. Meanwhile, disturbed young male shooters at the end of their tether scapegoat women and minority groups for the proliferation of politically correct rules under which they feel smothered. Tracing their anxieties back reveals a common source: alienation from the rules that govern them.
Unsurprisingly, the legal priesthood plays both sides to lengthen their reach and tighten their grasp: The root problem is not that the people toil under mountains of legal minutiae and can’t even breathe without violating at least five laws. No, according to them the problem is always too much freedom requiring (you guessed it!) more laws. Laws restricting firearms. Laws restricting hurtful speech. Laws restricting plastic straws. Laws, laws, laws.
A militia-like civil defense response from ordinary citizens akin to the Roof Koreans of the L.A. riots seems well within the realm of possibility these days. Fed-up citizens arm themselves in ever-greater numbers. They worry about losing the capability to manage both social instability and the last vestiges of fundamental civil rights.
American citizens must be brought to understand that the struggle gripping the country does not fundamentally pit liberals against conservatives or Democrats against Republicans. The struggle pits average citizens who want to live under clear, predictable, and widely understood laws against the legal priesthood’s empire of complication and confusion.
If the public can grasp that their system of government has slowly changed without their consent, the legal priesthood’s magical powers will evaporate and the U.S. legal system will be seen for what it is: a recondite abomination propped up by platitudes. At that time, rescuing the democratic republic back from the pit of legitocracy stands a chance.
Until that time, the wizards will continue to rule, and may God help us all.