THE MYTH OF THE RULE OF LAW in USA
Post Categories: Debate
John Hasnas | Friday, June 21, 2013, 17:19 Beijing
THE MYTH OF THE RULE OF LAW
John Hasnas (1)
Copyright 1995 by The Board of Regents of the University of Wisconsin System
Reprinted by permission of the Wisconsin Law Review
Originally published in 1995 Wisconsin Law Review 199 (1995)
Stop! Before reading this Article, please take the following quiz.
The First Amendment to the Constitution of the United States provides, in part:
“Congress shall make no law . . . abridging the freedom of speech, or of the press; . . . .”
(2) On the basis of your personal understanding of this sentence’s meaning (not your knowledge of constitutional law), please indicate whether you believe the following sentences to be true or false.
_____ 1) In time of war, a federal statute may be passed prohibiting citizens from revealing military secrets to the enemy.
_____ 2) The President may issue an executive order prohibiting public criticism of his administration.
_____ 3) Congress may pass a law prohibiting museums from exhibiting photographs and paintings depicting homosexual activity.
_____ 4) A federal statute may be passed prohibiting a citizen from falsely shouting “fire” in a crowded theater.
_____ 5) Congress may pass a law prohibiting dancing to rock and roll music.
_____ 6) 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.
_____ 7) Congress may pass a statute prohibiting flag burning.
Thank you. You may now read on.
In his novel 1984, George Orwell created a nightmare vision of the future in which an all-powerful Party exerts totalitarian control over society by forcing the citizens to master the technique of “double-think,” which requires them “to hold simultaneously two opinions which cancel out, knowing them to be contradictory and believing in both of them.” (3)Orwell’s double-think is usually regarded as a wonderful literary device, but, of course, one with no referent in reality since it is obviously impossible to believe both halves of a contradiction. In my opinion, this assessment is quite mistaken. Not only is it possible for people to believe both halves of a contradiction, it is something they do every day with no apparent difficulty.
Consider, for example, people’s beliefs about the legal system. They are obviously aware that the law is inherently political. The common complaint that members of Congress are corrupt, or are legislating for their own political benefit or for that of special interest groups demonstrates that citizens understand that the laws under which they live are a product of political forces rather than the embodiment of the ideal of justice. Further, as evidenced by the political battles fought over the recent nominations of Robert Bork and Clarence Thomas to the Supreme Court, the public obviously believes that the ideology of the people who serve as judges influences the way the law is interpreted.