Michael Malice’s excellent anthology, The Anarchist’s Handbook, includes an essay by John Hasnas, a professor of law and business at Georgetown. He opens his essay with a simple quiz:
On the basis of your personal understanding of the meaning of this sentence (not your knowledge of Constitutional law), please indicate whether you believe the following sentences to be true or false.
- In time of war, a federal statute may be passed prohibiting citizens from revealing military secrets to the enemy.
- The President can issue an executive order prohibiting public criticism of his administration.
- Congress may pass a law prohibiting museums from exhibiting photographs and paintings depicting homosexual activity.
- A federal statute can be passed prohibiting a citizen from falsely shouting “fire” in a crowded theater.
- Congress may pass a law prohibiting dancing to rock and roll music
- The Internal Revenue Service may issue a regulation prohibiting the publication of a book explaining how to cheat on your taxes and get away with it.
- Congress may pass a statute prohibiting flag burning.
Since I did such a poor job of jettisoning my prejudices about constitutional law, I performed rather poorly on this quiz. The correct answers are (no peeking),
- False
- True
- True
- False
- True
- True
- True
If you doubt these answers are correct, read his essay (linked above) and you’ll be left with no doubts.
Hasnas successfully argues that human law (versus the laws of nature) are necessarily ambiguous and subject to interpretation, which interpretations will not only be biased by the values and prejudices of the interpreter but almost wholly determined by them.
The useful fiction the rule of law serves to make citizens submissive and obedient to state authority, whether that submission and obedience is morally justified or not. What’s more, he argues that it encourages citizens and, especially, law enforcement to do awful things because they are following the rule of law. Quoting Hasnas:
…it also turns them into the state’s accomplices in the exercise of its power. For people who would ordinarily consider it a great evil to deprive individuals of their rights or oppress politically powerless minority groups will respond with patriotic fervor when these same actions are described as upholding the rule of law.
Bringing this 1995 essay up to date, we see in the Covid response the submissive and obedient behavior of a majority of the public with regard to government mandates, no matter how irrational or ill-founded. One may argue that some of these were extra-legal but for the most part they’ve been upheld by courts (rule of law!). Even when they weren’t, most people went along because they were promulgated under the color of law. Almost all law enforcement entities enthusiastically enforced these rules, often resorting to extreme measures. This brings to mind Hannah Arendt’s banality of evil.
Ever since I can remember, the fuzziness of legal statutes and reasoning has bothered me but I didn’t understand its full implications before reading this. The Constitution, like any other piece of paper, says whatever the regime wants it to say. As Hasnas’s quiz demonstrates, there is no such thing as “clear language of the statute.” Furthermore, Hasnas argues that there shouldn’t be. His complaint is aimed at the doublethink that simultaneously understands the inherently political nature of the law while pronouncing the supremacy of the rule of law (not men).