Compromise and Law

Lithwick's article on the blind leading the blind reminded me of a question that keeps coming up for me in the national debate about security; what is the law?

I don't mean "What are the individual laws that have been passed by Congress and signed by the President?" I don't mean "What are the laws that each state has passed?" I don't even mean the enormous body of regulation, riders, signing statements, and board of health decisions that regulate the world around us.

I mean, when we say the word "law," what do we mean?

I think most Americans' ideas about law are summed up in the Declaration of Independence: we all have natural rights, derived from God or from our very existence as human beings, and "that to secure these rights, governments are instituted among men, deriving their just cause from the consent of the governed." Law is about rights and justice. Conservatives and liberals, activists and constructionists will refer to rights, justice, ethics, morality, all in terms of first principles. We can debate what rights are, but they are there, and the law helps us secure them.

Wrong. If you believed it before, surely Dahlia Lithwick's article makes it impossible to believe now. Laws are passed, honored, and enforced according to expedience. The right hand does not know what the left is doing, and justice is whatever the president can make you think that justice is. Rights are not inalienable, not even those written into the constitution. They are provisional, malleable, historically produced, and now, sadly, some of the fundamental ones are ceasing to exist.

The "law" -- in this case the so-called compromise bill before congress, is an act of rhetoric. It is designed to convince you that the actions of government have something to do with justice (remember "just cause"). The real effects of this law (like law in general) are not predictable, but they have a great deal to do with power and very little to do with even the slightest meditation on what it means to be human, to be a political animal, to be enlightened.

Is it any wonder that the Chinese foreign minister tells the U.S. to shut up when some politician starts lecturing China on the "rule of law?" The law in the United States today is not a set of rules; it's a set of excuses for inequity and aggresssion. It would almost be better if McCain and company understood this fact -- then at least we could credit them with pulling the strings. But nobody gets it, and so the basic way Americans have viewed the world since the enlightenment is coming apart.

It turns out reading the Declaration of Independence is a waste of time: it never was "a law," and now it's not even a reasonable description of what "the law" might be. The Constitution is a cut and paste blog that is useful for generating debate but ultimately separate from the day-to-day workings of governent. The law is a language game. Those rights you thought you had now exist in name only, to get you to shut up and huddle down in your homeland.

That the people cheering this on should call themselves "conservatives," advocates of "natural rights," or defenders of the Constitution is either duplicitous or stupid. It's also a disaster.

Hell yes I'm mad. I'm a blogger.


UPDATE -- It's worse than I feared. See WaPo here and here.