INDIANAPOLIS, May 1 2015 – Relativism has been offered in most societies through history, and its usefulness to tyrants was well documented. If the law is only what the ruler says it is, then it is no law; it is only the scoundrel, force, wearing law’s respectable clothing.
For law to be meaningful, it must be written in a way that is direct and unambiguous. “Thou shalt not steal” is an example of such a law. It uses plain words with clear meanings; it is uncomplicated; and it is easy to understand on a single reading. “Clarification” or “interpretation” of such a law is not necessary. Even someone whose family starving, seeing someone else’s unguarded food, knows that stealing is against the law.
The law, of course, does not prevent stealing; no mother in the above situation would be prevented from stealing food for her starving child. But the mother would not be excused from the law’s consequences, merely because of her situation.
She knows that she’s breaking the law; she knows the usual punishment; she’s prepared to face that punishment – it’s worth it, to feed her starving child.
But her circumstances don’t change the law. She is still committing a criminal offense, and she knows it. She makes her choice and takes her chances with a jury’s decision.
The simpler the law, the easier it is to understand and to follow it and to stay governed by it. Each of the amendments in the Bill of Rights, for instance, is just one sentence long and very clearly written. Contrast those with, say the tax code, or even the 14th Amendment.
At the other end of the food chain, a ruler who claims the power to enforce the law or to ignore it is a ruler who craves infinitely many laws, so that everyone is technically an enemy of the state and can be indicted. Such a ruler can exercise absolute power, even when hiding behind a theoretically-limited power, because he can ignore those whom he does not want to imprison, thus assuring everyone’s loyalty.
The ruler can go further yet when he claims the power to interpret the law and the power to alter the law at his will. This situation leaves the citizenry totally at his mercy, as he can say the law means anything he says it means; and if by some chance the law is completely unambiguous, he can change it arbitrarily, thus creating criminals at will.
James Madison understood that well, as he penned Federalist #62 . This wide-ranging explanation of the ideas behind Article I (dealing with the legislative branch) also talks of the dangers of ambiguous laws or what some today call “living laws.”
Madison attacks that “mutability” on several fronts: “It forfeits the respect and confidence of other nations, and all the advantages connected with national character.”
“Another effect of public instability,” he warns, “is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uniformed mass of the people. Every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequence.”
Madison points out, “great injury results from an unstable government. The want of confidence in the public councils damps every useful undertaking, the success and profit of which may depend on a continuance of existing arrangements.”
With laws and their interpretation and enforcement arbitrary, he asks, “What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed?
“It poisons the blessing of liberty itself. It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.”
Madison warns specifically against the kind of fiddling President Obama has done with immigration laws and Obamacare, citing two large examples: “If they [laws] be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow.” He asks, “Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”
Madison sums up: “But the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes. No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability.”
The beauty to a tyrant of a mutable government and mutable laws is that he can do whatever he wants, allow and help his friends to do whatever they want and punish everyone else. The founders were worried that the world wouldn’t take their experiment seriously, that its rulers would soon devolve into Europe-like despots. They knew that would happen if our system of laws weren’t solid, and if the rulers didn’t do their parts to write good ones and enforce them. And follow them.
The bigger the tyrant, the more he makes stuff up as he goes along. Lincoln’s fiddling produced the Civil War and eventually led to his own death. We haven’t yet seen the results of Obama’s actions, but they are potentially even greater, as our enemies – not just in America, but around the globe — are within just a few hours’ reach.