Law & Our Democracy

Tibor R. Machan

One clear thing about the WikiLeaks affair is that outfits like The New York Times are showing their hypocrisy by failing to vigorously defend WikiLeaks’ Julian Assange’s actions. Wasn’t it The Times that published Daniel Ellsberg’s stolen Pentagon Papers and insisted that this was a valid exercise of its First Amendment Rights and that Ellsberg was a hero? And sure, there is a distinction between taking the papers and publishing them but it seems to me rather cowardly to hide behind that.

But the more serious and general issues is whether laws enacted in a kind of corrupted democracy such as the United States of America are actually morally binding on the citizenry. A good clue comes from the U. S. Supreme Court: “The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the Courts. One's right to life, liberty and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” [U. S. Supreme Court in West Virginia State Board of Education v. Barnette (1943)]

Sadly, this purposes has since been completely abandoned by that same court, most recently when it basically abolished the Fifth Amendment’s protection of the right to private property in the July 2005 ruling in City of New London, CT v. Kelo. Once democracy has become so bloated in its reach that no principles are safe from the mob, why exactly should citizens follow so called laws made democratically? They aren’t really laws by then but merely rules laid down by those who have nearly unlimited power.

When as a 14 year old I lived in Budapest under the rule of the “democratic republic” of Hungary--which was but a ruse disguising sheer Soviet style power--my family repeatedly violated “the law,” which is to say we defied the rules the communist--in fact, fascist--regime tried to impose on us all. We hid fugitives from Hungarian prisons and helped them escape to the West. We smuggled merchandise into Hungary with the help of athletes who were permitted to travel abroad (so as to show off how great communist athletes are). And most importantly I myself joined a group of adults who chose to violate the “law” that made it criminal to leave the country for nearly anyone not part of or favored by the ruling elite.

We made it across the border, after an arduous trip from the capitol to the Western border where border guards had been paid off by American agents so they wouldn’t stand too firmly in the way of those trying to escape. All of this was “illegal.” And no one in our group had the slightest compunction about our “illegal” conduct but felt enormous relief and even pride upon completing our journey. So, yes, we violated so called laws which weren’t anything more than the rules of a tyrannical regime. And throughout human history and around the globe back then and even now, thousands are routinely engaged in this kind of illegal conduct. And they darned well have every basic right to do so and those championing obedience of the law in these kinds of cases are full of it.

But, you say, America is a democracy and its laws are indeed binding on all of its citizens. No, that is wrong, since this democracy is now way out of control; it has repeatedly overstepped the limitations of a valid constitution. America is now a vastly illiberal democracy, one in which the majority and those allegedly representing it are perpetrating innumerable tyrannical measures, imposing rules that have no business being part of a free country. Just consider the policies vis-a-vis the consumption of “illicit” drugs!

How dare these people impose their idea of “illicit” on anyone else? Who are they, anyway? And what about the innumerable petty tyrannies of government regulations--issuing completely unjustly from federal, state, county, to municipal rulers? All these are forms of prior restraint, imposing penalties, at times jail sentences, on people who have no committed any violations of any rights but merely are deemed by bureaucrats and their bosses, politicians, capable of doing so! How is that for justice--penalizing people because they might become criminals? That policy would have us all in prison.

No, I am not impressed at all by the claim that people are violating “the law” when that law happens to be grossly unjust, enacted in violation of the basic law of the land. Obedience, compliance, is only warranted because it will serve to avoid prosecution and incarceration.

No one is obliged to be suicidal in his or her comportment toward a government that is either out and out totalitarian or only a democratic, mostly petty, tyranny. With governments like that citizens are only obliged to be prudent and crafty, except when it comes to valid provisions of the criminal law.