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America, the Nomocracy

In December 2010, a Mercedes sedan, driven by a hedge fund manager, struck and seriously injured a bicyclist in Vail, Colorado, then drove off. The hit and run driver, Martin Erzinger, was soon arrested in a nearby parking lot, where he was calling his car company, inquiring about damage repair.

Prosecutors soon allowed Mr. Erzinger to plea bargain to a felony and two misdemeanors. The felony would be erased from his record with good behavior. Why? According to the Eagle County district attorney: “felony convictions have some pretty serious job implications for someone in Mr. Erzinger’s profession.”

That is the point of criminal prosecution. If you almost kill someone and flee, there should be consequences for your behavior. What kind of a society do we live in when a person can avoid the worst consequences of their actions? It seems against the laws of nature, for every action there should be an equal and opposite reaction.

I use this story to illustrate the breakdown of the rule of law in the United States. A wealthy man almost killed someone, fled, and showed more concern for his car than the person he hit. Yet he escaped harm because it would be bad for his career.

Does this one story show men are above laws in the United States today? If so, how do we return to the rule of law that characterized American life for so long?

I am not going to look at American history with rose colored glasses and say we have seen centuries of justice and verdant pastures. Various class and racial privileges cannot be denied.

Watergate and other annals of prosecuted political corruption (John Rowland, Joe Ganim, John Edwards, etc) demonstrate the rule of law in effect, and show how no man is above the law.

But in the last decade, we have seen more people avoid paying a price for illegal behavior than ever. Consider the warrantless wiretapping, illegal wars, extraterritorial drone strikes, indefinite detention, extraordinary rendition and torture from the George W. Bush years.

For many, the threat of terrorism continues today to justify this departure from the rule of law. For many others, this kind of behavior was and is unacceptable, and internationally, there have been discussions about how to bring the rogue actors within the American government to international justice.

Aristotle said simply “Laws should govern.” The old Greek believed in a strong middle class as a check and balance against tyrannical rule of the rich or of the mobs.

In Politics, Aristotle wrote that the middle class – those who had moderate fortunes – found it “easiest to obey the rule of reason.” And thus, they were less likely to act unjustly towards their fellow man than rich or poor.

Right now, thanks in part to Bush tax cuts, America has the largest gap between rich and poor in its history. The middle class is shrinking. Does this mean we are veering away from a just and equitable society? In Aristotle’s eyes, yes. Where the rich have too much power, there is tyranny.

Rulers must be servants of the laws. Many an American wag has suggested “We are a government of laws, not men.” Some have said the rule of law is simply that no one is exempt from the law, not even those in power.

When a President like Obama has a kill list that he uses to execute enemies of the state without due process, he acts above the law. Who is to punish the president of the United States when he inflicts the ultimate punishment of death upon someone with giving that someone due process of law?

I cannot simply trust a man who says he studies the list before deciding who to kill. How long before a president decides to use a kill list against American citizens?

Some would say that the federal assault on Waco or Ruby Ridge were data points placing us beyond the rule of law. But we must ask: Would that hit and run driver, Mr. Erzinger, have gotten off 20 years ago, before hedge funds so dominated our financial landscape?

Founding father James Madison said in Federalist Paper No. 51: “If men were angels, no government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

Madison and his group of men decided on an independent judiciary as a way to oblige the government to control itself, and to prevent one faction from gaining too much control. But does this work two centuries later, when the judiciary rubber stamps the worst of the executive abuses?

Members of the American Bar Association have spent a lot of time thinking about and publicizing the importance of the rule of law. One pamphlet quotes Supreme Court Justice Felix Frankfurter from 1947: “If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.”

A political theorist named Joseph Raz in 1977 summarized elements that make up the rule of law. I quote almost directly from the Wikipedia entry on the rule of law. Raz said the rule of law is when:

  • Laws are prospective rather than retroactive.
  • Laws should be stable and not changed too frequently, as lack of awareness of the law prevents one from being guided by it.
  • There should be clear rules and procedures for making laws.
  • The independence of the judiciary has to be guaranteed.
  • The principles of natural justice should be observed, particularly those concerning the right to a fair hearing.
  • The courts should have the power of judicial review over the way in which the other principles are implemented.
  • The courts should be accessible; no man may be denied justice.
  • The discretion of law enforcement and crime prevention agencies should not be allowed to pervert the law.

During the coming weeks, I am going to explore Raz’s tenets piece by piece. Rather than dwelling on micro political data points like Brandon McGee’s recent victory thanks to insane amounts of outside spending, I want to take a macro look at political theory, and the assumptions underlying our society.

Maybe it is simply self-interest. As a bicyclist, if I get hit by a car and suffer traumatic brain injury, I want to be certain that the driver who hits me will not escape criminal liability. There should be consequences to bad behavior. How can we make this so?

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