Rule of the Lawless

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Rule of the Lawless

Murray Rothbard was superb at identifying the numerous flaws, ambiguities, and contradictions with the concept of democracy. See, Power and Market. However, even his fertile mind could not conceive of the farce now occurring in New Jersey. There, an incumbent Senator, plagued by a scandal, has concluded that he cannot win re-election. Since his race may tip the millionaires’ club toward the Republicans, and that could signal the end of the world as we know it, of course he must drop out and be replaced by someone who can win. We can worry about the legalities later.

I cannot fathom why the voters of New Jersey were so concerned about some petty scandal Torricelli got entangled in, but were never bothered by the mega-scandal of Torricelli’s entire legislative career. What politicians do in broad daylight is far worse than what they do behind closed doors.

In any event, out of the Shady Hillside Rest Home for retired centimillionaires, comes Frank Lautenberg. Lautenberg is a little to the left of Henry Wallace, but his far left views are not out of touch with the new New Jersey. This is not your father’s New Jersey — quiet, suburban, Republican. Now, it is one long Democratic traffic jam with a few "rednecks" in the south. Years ago, Lautenberg thought eccentric Senator Millicent Fenwick was too old at 72. Lautenberg, now 78, has forgotten all that now.

I haven’t forgotten that campaign, though. I remember Lautenberg’s incessant ads, featuring the rich fellow bellowing some ad agency’s version of the common man’s ungrammatical lingo. "Let’s get it down there," Frank said in the ad, talking to some regular folks. I will go to my grave not having the slightest idea what he meant by that mysterious statement. I didn’t know what "get," "it," "down," or "there" meant in that sentence. Of course, the subliminal meaning was, I am as dumb as you voters are, not a patrician like Millicent Fenwick, so vote for me. The ad men had sized up the voters pretty good. The Laut won.

So here we are twenty years later and the New Jersey Supreme Court issued an order that makes as much sense as Lautenberg’s 1982 ad. The statute states a vacancy in a nomination that occurs no "later than the 51st day before the general election" may be filled by the party’s state committee no "later than the 48th day preceding" the election. No matter the Court says: the statute "does not preclude the possibility of a vacancy occurring within fifty-one days of the general election." I saw a few minutes of the oral argument on television. It looked like what we lawyers refer to as a "result-oriented court." This is not a compliment. I was proved right when the court issued their order before they issued their opinion explaining their reasons. That is, unfortunately, a modus operandi we see too frequently in the highly-politicized government courts. First the judges decide who they want to win; then, their law clerks come up with the post-hoc rationalizations.

The truth is, I am not a huge fan of enforcing legal technicalities just for the sake of inflicting unnecessary pain on people. (That’s Rehnquist’s shtick.) The 51-day rule, however, is not a technicality. There has to be some cut-off point to allow the administrators to prepare the ballots, to allow the candidates to campaign and allow the voters to figure out who the lesser of evils is. More importantly, how far can we take this new principle? A candidate can test the waters, and finding them chilly, can drop out, after his opponent has already spent millions bashing his face in. Can his former opponent then drop out the next day, and so on and so forth? Granted that the fellow who chased out Torricelli won’t drop out, but what about the minor parties? Can they make their candidates disappear and replace them with demographically correct new ones who will siphon off votes from one of the two major candidates? There is no clear stopping point. This new idea that candidates can drop in and drop out on a whim, may do more to destroy democracy than the publication of Hans Hermann-Hoppe’s Democracy: The God that Failed. If such tactics can change the result of an election, then indeed Rothbard was right that democracy — the thing that politicians believe distinguishes them from gangsters — "is a system replete with inner contradictions."

What bothers me the most about what the New Jersey Supreme Court did is not any slavish devotion I have to "the letter of the law." The letter of the law in our times is often absurd. No, the primary value of courts adhering closely to statutes or to their own prior case law, does not depend on the wisdom of those specific statutes or cases. Rather, the minimum requirement of a civilized legal system is that, regardless how crazy the laws are, at least they aren’t making this stuff up after the fact and as they go along just to get you. Result-oriented courts that cook up a special legal recipe for each litigant, regardless of precedent and in disregard of the principle of equal protection, are a mockery of human justice.

October 5, 2002

James Ostrowski is an attorney practicing at 984 Ellicott Square, Buffalo, New York 14203; (716) 854-1440; FAX 853-1303. See his website at http://jimostrowski.com.

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