The Ordinary Citizen, Popular Culture, and the Enforcement of the Law
More than mere words on a paper, does a law on the books do any good if it lays dormant? As the nation turns its eyes to the highest tribunal, both sides hoping to garner just that one vote to tip the scales in their parties’ favor, perhaps history can shed some light on the realities of life. Before the Civil War, the entire nation, ripped apart and split in two on the issue of slavery, turned its eyes to the Supreme Court to settle the pressing issue of the day once and for all. Still reeling from Worcester v Georgia[xxxiv], after which incident president Andrew Jackson is reported to have said, “The decision of the supreme court has fell still born, and they find that it cannot coerce Georgia to yield to its mandate,”[xxxv] the Supreme Court adopted what was known as Judicial Restraint for many years to come.
Yet when the pressure mounted on the Supreme Court to decide the decisive vote on the hot issue of slavery, the Court finally decided the infamous case of Dred Scott v Sandford[xxxvi], causing an uproar throughout the nation, further splitting apart an already divided nation and ultimately leading to civil war. Much as today’s politicians talk about Court decisions being “settled law,” even Abraham Lincoln, months before Dred Scott was handed down, had stated that “the Supreme Court [is] the body charged with deciding the issue of slavery in the territories and that ‘we will submit to its decisions; and if you do also, there will be an end to the matter.’”[xxxvii] In reality, however, this was not to be as even Lincoln himself soon changed his tune on the matter.
After the Civil War, Radical Republicans took control over Congress, passing the Reconstruction Amendments (Amendments that president Andrew Johnson waged a massive campaign against), Enforcement Acts and various Civil Rights Acts. Yet, ultimately, the presidential administrations of the era refused to enforce the legislation, refusing to intervene to stop the corruption and violence that ran rampant; the states and their judges (voted in by the people) refused to comply, and the Amendments and subsequent legislation by Congress quickly lay dormant and unenforceable. Since abortion is the hot-button issue of the day that is tearing this nation apart, it is worthwhile to look into the hearts of the nation’s citizens and learn from human history as to how this story will play out. Is abortion about the regulation of morality- sexual or religious? But even setting aside the blatant Unconstitutionality of the latter, can a state use its police powers to effectively govern morality when the overall culture is vulgar and promiscuous and where “anything goes?” Absent widespread social change (possibly even revolution), the short answer to this question is likely to be a resounding “no.”
If the Civil War represented an appeal from law to the sword, that was true because the opposing extremes no longer accepted the underlying premises of the legal order. Americans too often forget that the rule of law draws only limited strength from judicial guaranties; it must have roots far deeper than a formal fundamental document and decisions of the judges enforcing it. Our public law depends for its efficacy on popular acceptance of its basic presuppositions. Acceptance, rather than formal legal machinery, is the decisive force in the law’s implementation, with Learned Hand in a famous passage we may ‘wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes, believe me, these are false hopes.’[xxxviii]
No act of the legislature nor decision by the Supreme Court is likely to ever lay the issue of abortion to rest any more than the issues of slavery or racism were ever laid to rest by words on a piece of paper. Only getting straight to the heart of the real issues at play and a true reconsideration of the role of women in society and the family is ever likely to lay such an issue to rest, much the same as the issue of racism and segregation (though still not entirely eliminated among ordinary citizens in society at large) could never be laid to rest without a thorough re-examination of the status of African-Americans as citizens and an acknowledgement by the people of the nation of their position in society and the law as equals to the heretofore dominant Caucasian race. Couched as pro-choice activism is in society’s belief in women’s equality, society can never even begin to move past this issue without a thorough re-examining and reconsideration of the entire premise of feminism from its very roots.
And it must be remembered that what controls women will also control men. All too often it is the male who pressures the woman he has been sleeping with/having an affair with into obtaining an abortion (often offering up the funds to pay for it as well) because the male does not wish any responsibility for the products of an unwanted pregnancy after a night or two of fun. Those who would term themselves as “men’s rights activists” have no case, no cause, no purpose nor any legislative agenda outside of the realm of feminism and egalitarianism. If feminism and its egalitarian legislative progeny die out in their entirety in society, their cause will go down right along with it. The males of society will then have to come face to face with what is termed “responsibility,” having to face the reality that actions have consequences- and they cannot continue to run their pick-up artist “game” if there are consequences attached to the sex act that the society will then ultimately hold them accountable for.
Trickling down from the highest tribunal to the lowliest officer of the law, many forces push and pull against each other in the adversarial system of American criminal justice. Many legal processes must first be traversed before an individual may actually be prosecuted, convicted, and punished for any crime. Fairness in the rule of law and criminal justice procedure is, after all, the very premise upon which the American criminal justice system was founded upon. Ethics play such an important role in law enforcement on account of the discretion that officers on all levels are given in the carrying out of their duties, and the power of the ordinary citizen in the enforcement of the rule of law has been greater than many realize throughout history. What is the alternative to discretion but tyranny? The short answer is that there is none.
Even for actions officially recognized as illegal under the law, an officer retains discretion whether or not to arrest an individual. Ethically, it is an officer’s duty to uphold the law even when off-duty, but all the way from a simple traffic citation to violent crimes, the decision ultimately rests with individual officers to choose whether or not to arrest. It is also prosecutors who decide whether or not to pursue a case and, if so, specifically what crimes to charge the individual with.
The Second Amendment retains for the states the right to a “well-regulated militia,”[xxxix] and in the days of old this gave power into the hands of ordinary men to challenge an unjust cause much the same as ordinary citizens today retain the power, when called upon to try their fellow citizens for crimes in a court of law, to acquit and effectively nullify the law at issue. “That every man be armed:”[xl] Not only the right to bear arms, but historically the obligation to do so fell upon adult male citizens, and when called upon to act, local militias could exercise a form of passive resistance by simply refusing to muster and heed the call to bear arms,[xli] much as modern juries still to this day retain the extraordinary power of jury nullification, whereby ordinary citizens can simply fail to convict a defendant even in the light of overwhelming evidence of guilt when they believe the case or law at issue to be unjust. Due to the prohibition of double jeopardy in the United States Constitution, the defendant then walks free, as the government cannot retry the defendant again upon the same charges after an acquittal.[xlii]
Nowhere today can this issue be seen more clearly than with modern juries refusing to convict in drug cases, even as society struggles with a serious drug problem. The push to legalize specific varieties of formerly illegal recreational drugs is strong. The laws don’t work, because the people are simply unwilling to believe in or comply with the laws. Could abortion also fall in with this issue? Is- was- legalization not responding to a serious problem that society faces on both accounts? Are there not less arbitrary measures to affect the same goals? But can any change ever happen without an extreme makeover in the overall structure of society? Were not “Too many wealthy women… flouting the law to get abortions from respected physicians…[and] too many poor women being injured by inadequately trained mass purveyors of illegal abortions”[xliii] at a time when “free love” and the sexual revolution were rocking society, much the same as the opioid epidemic has plagued and ravaged the nation today, causing lawmakers to look to alternatives- including the legalization of the “softer” drugs such as marijuana- to attempt to address a serious problem in society and prevent further death and hardship of the nation’s citizens?
As opposing and competing forces push and pull society in two different directions, we as a nation must stop and ask what it is we are doing, where we are going, and what, precisely, is hoped to be achieved? Is it a reinstatement of law and order and a returning of America to a supposedly more prosperous time? And how can that ever be achieved without addressing, but yet instead choosing, to turn a blind eye to the underlying forces that have caused the problems in the first place? Tyranny by the executive, legislative or judicial branches of government can never hope to turn America into the great nation that it once was in a civilization that simply no longer believes in the rule of law.
Outro to the Posting
What I have set forth here is a proposal: A deep and serious consideration that I do so sincerely hope can reach the hearts and minds of many. And with this humble piece of scholarly literature I do now so contribute it to that prayerfully ever free and prosperous marketplace of ideas.
[xxxiv] 6 Pet. 515 (U.S. 1832).
[xxxv] A History of the Supreme Court, supra, p. 94. Quoted from Letter from Andrew Jackson to John Coffee, Apr. 7, 1832.
[xxxvi] 60 U.S. 393 (1857).
[xxxvii] See Peter Irons, A People’s History of the Supreme Court, p. 179 (5th ed. 2006). Quoted from Lincoln, “we will submit”: Phillip van Doren Stern, ed., The Life and Writings of Abraham Lincoln, 399.
[xxxviii] A History of the Supreme Court, supra, pp. 126-127. Quote by Learned Hand, The Spirit of Liberty: Papers and Addresses of Learned Hand 189-190 (3rd ed. 1960)
[xxxix] “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. For a thorough discussion of the Second Amendment see generally A Well-Regulated Militia, supra. See also United States Supreme Court cases of McDonald v City of Chicago, 561 U.S. 742 (2010); District of Columbia v Heller, 554 U.S._ (2008). (Incorporating the Second Amendment against the States as an “individual right”).
[xl] The cry of Anti-Federalist Patrick Henry at the Virginia ratification debates. See A Well-Regulated Militia, supra, p. 53.
[xli] Termed sometimes as “militia nullification.” According to Saul Cornell in A Well-Regulated Militia, supra, “Implicit in the idea of the militia was the idea that citizen soldiers were not passive tools of government, but retained a right to refuse to muster and thereby exercise a form of passive veto on government policy…This type of passive resistance was akin to the right of juries to refuse to convict a citizen under an unjust law, effectively nullifying the law at issue.” (p.81).
[xlii] Due to the dual sovereignty doctrine, however, a defendant may be tried both at the state and Federal level for the same offence, and also if the defendant crossed state lines in the commission of the crime, may be tried by each State that the crime was committed in. See, eg., Heath v Alabama, 474 U.S. 82 (1985).
[xliii] A History of the Supreme Court, supra, p.333.