Something has gone seriously awry with the law. Originally it was written for the people, who could understand it without expert assistance. It protected them from murder, theft, adultery, lying, and other anti-social – not to mention immoral – behavior, by punishing the murderers, thieves, adulterers, liars, etc. Perhaps the problem began when people who fully intended to break those laws were able to convince others than the law wasn’t as simple as it seemed. There were subtleties to the law, so that what it seemed to say it didn’t mean at all, whereas it did mean what it didn’t seem to say. Under the guise of clarifying matters, more laws were written, and more written to clarify those. Anyone who commits a crime today will stand accused of violating a half-dozen laws; the prosecutor is going to win come what may.
The U.S. Constitution, of late memory, was a simple statement limiting the powers of government, with all powers not delegated by We the People to the government remaining with the people, or the states. It was little more than a booklet, even with the addition of Amendments. Recently, Congress "passed" the Patriot Act, which was 500 pages of legalese that, we can safely assume, wasn’t read by a single Congressman. Yet we are expected to know the "law," and obey it. How often have you heard the old saw: ignorance of the law is no excuse? In reality, could there be a better excuse? How can you obey a law that you’ve never heard of? Today it might be said that the law is no longer to protect the people, but to protect the government from the people, or to color its actions with legality. For We the People, the law is either incomprehensible, or, if it suits the government, it doesn’t mean what it says, or say what it means.
A friend of mine once confronted a state senator with the Constitutional prohibition against the states making anything but gold and silver coin a legal tender. The senator had never heard of it! If you have a state income tax, the state will receive information from the feds regarding your income, from W-2s, and 1099s. This is legal, as state tax officials will quickly point out. However, the law states that the information shall only be transmitted upon written request from the director of revenue in your state. Is this done? No, absolutely not, in at least one case of which I have knowledge. I pointed this out to a tax lawyer once, and he laughed, loud and long! "Oh, they always do that," he said, when he had recovered from his merriment. "Does illegality become legitimate if repeated?" I asked. He laughed again, and repeated, "They do it all the time." Apparently it is a legal practice, hallowed by time, to quote the law which supports your actions, while ignoring sections of the self-same law which prohibit them. Of course, that only works if you’re the government.
I was watching the reading of the verdict at the trial of Robert Blake. A commentator, following the not-guilty verdicts, informed us that Blake is still in hot water, because his late wife’s family has instituted a civil suit, and there would be two significant differences between the civil suit and the criminal one. First, in the civil suit, the burden of proof will be based upon "a preponderance of the evidence," not "certainty beyond a reasonable doubt." What does that mean? If you are a juror, the question in your mind must be: did he do it, or didn’t he? If you don’t know, but think that maybe he did, is that a conclusion based on a preponderance of the evidence? Are you to count the bits of evidence pro and con, and decide on that basis? But how do you know if you have heard all of the evidence? It’s common for some things to be denied juries upon various objections. Without access to ALL the evidence, how can you decide upon a preponderance of it? And do some bits of evidence carry greater weight than others?
The second difference between the criminal and civil suits is that in the civil suit, Blake will have to take the stand and testify, unlike the criminal case, in which he could not be forced to testify. (We heard the same after the O.J. Simpson trial, and the TV pundits suspect that the family of Michael Jackson’s alleged victim has a civil suit waiting in the wings, also.) I suppose the reasoning is that, having been acquitted of criminal charges, he cannot take the Fifth because there is no criminality involved this time. But what about the First? Can a man be compelled to speak if he does not want to, and if it is not in his best interests to do so? What does it mean to have freedom of speech, if you aren’t free to say nothing?
There is something called "due process of law." It means that the law, besides being clear and unambiguous, is uniformly applied, pursuant to established legal rules and routines. Whatever happened to due process? Today, when the law is not vague and confusing, as in the case of tax laws, it simply is not administered, enforced, or adjudicated as it is written. It is difficult for We the People to derive a sense of safety and security in the law, when the law, if comprehensible, may or may not be enforced as written. We find ourselves asking, "Is this one of those laws that is generally ignored, or rigidly enforced? And why should what appears to be a blatant violation of the law be ignored because it’s customary, or habitual, for the government to do so?"
Which is of greater importance: the right of the people to be protected by the law, or the obligation of the people to obey what might, or might not, be a law, at least sometimes and in certain circumstances?
More laws equal less justice, more confusion, and more lawsuits. The people may be protected by Law, but they are the victims of ten thousand laws. If the law only means what the lawyers and judges say it means, then why bother with it? Of course, that could mean the end of liberty, but perhaps freedom, like the Constitution, is a thing of the past. Fortunately – I guess – nobody seems to care.
Dr. Hein [send him mail] is a retired ophthalmologist in St. Louis, and the author of All Work & No Pay.
