One of the first thing that stands out about classic, pre-radio newspapers, such as William Lloyd Garrison’s newspaper The Liberator, is just how much space they devoted to reprinting articles from other newspapers. Part of this was out of a need to maintain a you-print-mine-and-I’ll-print-yours relationship that would expose newspapers to potential new buyers that wouldn’t otherwise see their work. Think of it as the equivalent of pre-social media article sharing. But it was also about ensuring that important articles and information saw the widest spread of information possible while also helping to ensure that the information, by being widely disseminated, stood a greater chance of preservation. This is something I also believe in. It is part of which I make a conscious effort to reproduce articles, speeches, and other texts from the past- though seemingly old, most of the ideas these texts discuss, from the nature of government and human liberty to the purpose of the church and the nature of the Kingdom of God, are as prescient as ever. But it isn’t just articles from 100 years ago, or older, that need preserving. Documents written much more recently which develop and explain important truths about humanity and society also deserve to be preserved and disseminated.
It is with that in mind that I present the article Law Puts Us All in Same Danger as Eric Garner, by Dr. Stephen L. Carter. Dr. Carter, former law clerk for US Supreme Court Justice Thurgood Marshall, now teaches courses on the ethics of war, contract theory and practice, and the intersection of law and religion at Yale University, also his alma mater. I give you this information not only to explain why his explanation about the nature of law and how the legal system functions might be worth listening to, but to point out that this guy is not a rabid anarchist. He is, in the words of Dr. Thomas Shaffer of the Notre Dome Law School, “a modern day liberal …who votes for Democrats.” This is not a guy who stands outside the mainstream of American academia or politics.
Yet his explanation here of how the legal system is inherently violent and is based on the use of force to compel obedience from the public on pains of assault or even death and the way that overcriminalization puts the safety, lives, and liberty of everyone at risk would utterly shock most people who never give any consideration to how the system actually functions and treats those of us who do understand as if we’re crazy when we try to explain it. Yet, here we have one of their own, explaining the nature of the law and the threat it levels at every person under its rule. Here is evidence of the truth that you can use. I have added select pictures to the article to illustrate events, ideas, or people that Dr. Carter discusses and have addended a brief Afterword of my own. Everything else is Dr. Carter’s work.
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Law Puts Us All in Same Danger as Eric Garner
Every new law requires enforcement; every act of enforcement includes the possibility of violence, such as the chokehold that killed Eric Garner.
On the opening day of law school, I always counsel my first-year students never to support a law they are not willing to kill to enforce. Usually they greet this advice with something between skepticism and puzzlement, until I remind them that the police go armed to enforce the will of the state, and if you resist, they might kill you.
I wish this caution were only theoretical. It isn’t. Whatever your view on the refusal of a New York City grand jury to indict the police officer whose chokehold apparently led to the death of Eric Garner, it’s useful to remember the crime that Garner is alleged to have committed: He was selling individual cigarettes, or loosies, in violation of New York law.
The obvious racial dynamics of the case — the police officer, Daniel Pantaleo, is white; Garner was black — have sparked understandable outrage. But, at least among libertarians, so has the law that was being enforced. Wrote Nick Gillespie in the Daily Beast, “Clearly something has gone horribly wrong when a man lies dead after being confronted for selling cigarettes to willing buyers.” Republican Senator Rand Paul of Kentucky, appearing on MSNBC, also blamed the statute: “Some politician put a tax of $5.85 on a pack of cigarettes, so they’ve driven cigarettes underground by making them so expensive.”
The problem is actually broader. It’s not just cigarette tax laws that can lead to the death of those the police seek to arrest. It’s every law. Libertarians argue that we have far too many laws, and the Garner case offers evidence that they’re right. I often tell my students that there will never be a perfect technology of law enforcement, and therefore it is unavoidable that there will be situations where police err on the side of too much violence rather than too little. Better training won’t lead to perfection. But fewer laws would mean fewer opportunities for official violence to get out of hand.
The legal scholar Douglas Husak, in his excellent 2009 book “Overcriminalization: The Limits of the Criminal Law,” points out that federal law alone includes more than 3,000 crimes, fewer than half of which found in the Federal Criminal Code. The rest are scattered through other statutes. A citizen who wants to abide by the law has no quick and easy way to find out what the law actually is — a violation of the traditional principle that the state cannot punish without fair notice.
In addition to these statutes, he writes, an astonishing 300,000 or more federal regulations may be enforceable through criminal punishment in the discretion of an administrative agency. Nobody knows the number for sure.
Husak cites estimates that more than 70 percent of American adults have committed a crime that could lead to imprisonment. He quotes the legal scholar William Stuntz to the effect that we are moving toward “a world in which the law on the books makes everyone a felon.” Does this seem too dramatic? Husak points to studies suggesting that more than half of young people download music illegally from the Internet. That’s been a federal crime for almost 20 years. These kids, in theory, could all go to prison.
Professor of Law at Rutgers University.
Many criminal laws hardly pass the giggle test. Husak takes us on a tour through bizarre statutes, including the Alabama law making it a crime to maim oneself for the purpose of gaining sympathy, the Florida law prohibiting displays of deformed animals, the Illinois law against “damaging anhydrous ammonia equipment.” And then there’s the wondrous federal crime of disturbing mud in a cave on federal land. (Be careful where you run to get out of the rain.) Whether or not these laws are frequently enforced, Husak’s concern is that they exist — and potentially make felons of us all.
Part of the problem, Husak suggests, is the growing tendency of legislatures — including Congress — to toss in a criminal sanction at the end of countless bills on countless subjects. It’s as though making an offense criminal shows how much we care about it.
Well, maybe so. But making an offense criminal also means that the police will go armed to enforce it. Overcriminalization matters, Husak says, because the costs of facing criminal sanction are so high and because the criminal law can no longer sort out the law-abiding from the non-law-abiding. True enough. But it also matters because — as the Garner case reminds us — the police might kill you.
I don’t mean this as a criticism of cops, whose job after all is to carry out the legislative will. The criticism is of a political system that takes such bizarre delight in creating new crimes for the cops to enforce. It’s unlikely that the New York legislature, in creating the crime of selling untaxed cigarettes, imagined that anyone would die for violating it. But a wise legislator would give the matter some thought before creating a crime. Officials who fail to take into account the obvious fact that the laws they’re so eager to pass will be enforced at the point of a gun cannot fairly be described as public servants.
Husak suggests as one solution interpreting the Constitution to include a right not to be punished. This in turn would mean that before a legislature could criminalize a particular behavior, it would have to show a public interest significantly higher than for most forms of legislation.
He offers the example of a legislature that decides “to prohibit — on pain of criminal liability — the consumption of designated unhealthy foods such as doughnuts.” 1 The “rational basis test” usually applied by courts when statutes face constitutional challenge would be easily met. In short, under existing doctrine, the statute would be a permissible exercise of the police power. But if there existed a constitutional right not to be punished, the statute would have to face a higher level of judicial scrutiny, and might well be struck down — not because of a right to eat unhealthy foods, but because of a right not to be criminally punished by the state except in matters of great importance.
Of course, activists on the right and the left tend to believe that all of their causes are of great importance. Whatever they want to ban or require, they seem unalterably persuaded that the use of state power is appropriate.
That’s too bad. Every new law requires enforcement; every act of enforcement includes the possibility of violence. There are many painful lessons to be drawn from the Garner tragedy, but one of them, sadly, is the same as the advice I give my students on the first day of classes: Don’t ever fight to make something illegal unless you’re willing to risk the lives of your fellow citizens to get your way.
1) Don’t laugh. When I was in high school, I visited a night court session in a small New Jersey town, and witnessed a defendant being fined for eating in public.
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Afterword
I want to rephrase Dr. Carter’s last line there in a more clear but less politic way: Don’t ever fight to make something illegal unless you’re willing to kill your fellow citizens to get your way. This is the true nature of the legal system in a statist (“state-ist”) government and what you really mean when you say, “That should be illegal,” is, “If you don’t stop doing that thing I will pay people to come to your house and kill you to stop it.” Most countries are nations full of Karens looking to wag their finger at everyone else and wanting to call the cops to make them stop doing whatever it is we think is too naughty for them to do. They should know better, those nasty, deplorable people. And of course politicians are only too happy to oblige. The role of the State, of the government, is not to be your friend or your nurturer. It is your ruler and demands to control and dominate every aspect of your life. Of course it has no problems making all the endless laws people seem to endlessly demand, the better to give its system an endless stream of justifications for maintaining an environment of constant terror where you will do what you are ordered because you know that you can otherwise be beaten and murdered with impunity if you dare resist even the most meaningless and obviously nonsensical of its edicts.
The entire system, and and all other statist systems across the world, is a knife to the throat, a barrel to the back of the skull of every person under its domination. And it will always be that way as long as it exists. Even if we magically heal the racist, nationalist, and tribal divides of the world tomorrow we will all still be like Eric Garner and Ryan Whittaker, always subject to the unleashed brutality of the State. The only solution is to dissolve it altogether. Anything less is merely the political equivalent of a three card monte scam with those in power just shuffling everything around to make you see what they want you to see, so you’ll believe what they want you to believe, so they can continue fleecing you for all you’re worth. Now, if you’re looking for a place to start to change this, here is a good place to begin.