Saturday, April 21, 2007

The Law Against Laws

Everyday in papers around the world there are rumors of new laws, proposed or enacted. Some dictate when not to talk on a phone, where and what not to smoke, what not to cook with, and for the citizen’s own good, when to wear a helmet or seatbelt. Recently there was an article discussing what some call the criminalization of America. Professor Jonathan Turley of George Washington University, mentions the 12-year-old girl arrested for eating French fries in a Washington, D.C. metro station and the grandmother whose crime was letting her “shrubbery” grow to scandalous heights (21A). The Knights who say Ni better mind their hedges. Professor Turley also points to a State Senator in Louisiana who wants to criminalize wearing pants too low (21A). These laws probably came from some concerned, scandalize citizens saying, “There ought to be a law”.

Over 200 years ago a group of men, who had just rid themselves of over burdensome laws, decided there ought to be a law about “there ought to be a law”. Their solution was the U.S. Constitution and its Amendments, better know as the Bill of Rights. Most people have a misconception of what it is; a majority thinks it gives them their rights. In actuality those rights were already theirs. The Constitution, unlike all other laws does not prohibit, curtail, or manage a citizen’s acts, but rather it prohibits prohibiting, curtails curtailing, and manages managing that the lawmakers would otherwise do. The Constitution is in fact a law that is not a law.

In the Constitution’s First Amendment it says, “Congress shall make no laws” about five things, one of which is restricting the citizens’ right to peaceably assemble. The populace may come together to protest or applaud anything they feel is wrong or right with the country. According to the Constitution the government can not curtail this right, though at times it tries. This is the one instance where groups of citizens emulate the founders the most, by a mass act of civil disobedience, ignoring the authority's attempt to suppress them. As the saying goes, “If citizens ask for the government’s permission to protest, they deserve to be told no.”

In another area, the Constitution forbids authorities from entering or taking property without due process of the law. Specifically the Fourth Amendment which says a citizen can tell the authorities that he or she does not consent to having his or her property searched; along with Fifth Amendment which says the authorities can not hold a citizen without just cause or deprive him or her of his or her life, liberty or property without due process. These two corner stones curtail the abuse of search and seizure. Most laws dealing with property try to give the authorities the power over it, such as the search and seizure laws outlined in the Civil Asset Forfeiture Reform Act. These laws give police the ability to take property, not only, when an actual crime has been committed, but also when there is only a suspicion of one. James Madison in “Property” said, that where “excess of power prevails” an individual’s property whether body, thought, or physical would not be secure (1). This is why the Founders tried to make it virtually impossible for government to enter a citizen’s home or other property and seize anything without proof. These two Constitutional Amendments limit the authority’s ability to take property away.

Then there are the laws forbidding the verbal or written expression of particular ideas. The reasoning in most cases is to protect the populace against hate, prejudices or lesser untruths. The Constitution, again the First Amendment, forbids the limiting of individuals’ expression of ideas, whether truth or not. Ironically, the laws aimed at protecting the truth actually weaken it, and allow untruths to go unchallenged; the very opposite of its intentions. A nineteenth century philosopher and economist, John Stuart Mill, suggested as much; when a perceived idea that is commonly considered true, is shown through reasoning to be false, all of mankind benefits from “exchanging error for truth”. On the other hand, when an individual’s belief is exposed as being false through the open exchange of that same reasoning, he gains truth (14). The restrictive law’s aim is to protect but fails to do that, yet the Constitution disregarding the perceived need, not only protects freedom of speech but strengthens that which the law failed too.

Another way the Constitution can be summed up is by what Professor William Warner, Chair of the University of California’s Santa Barbara English Department wrote, “this ‘right’ is not won through laws…but through a law against laws” (3). Although Professor Warner is speaking specifically about freedom of speech, the same can be said of the whole Bill of Rights. Each amendment is a “law against laws”. This concept is the complete opposite of the purpose of laws Rather than forbidding or dictating conduct it is inviting the free expression of it.

Though the U.S. Constitution is a law or more specifically, the supreme law of the land, it is the facilitator of freedom. Unlike other laws that are the oppressors of individual thought and expression it is their champion. The law says nobody can say that, nobody can do that, and nobody may see, taste, or touch that. Whereas the Constitution says, “Go ahead, it’s a free country.” Then again, Professor Turley might just be wondering when the last time anyone actually heard that phrase was.
...There just ought to be a law...

Works Cited
Madison, James. “Property” National Gazette 29 March 1792
Duke University. 2 Apr. 2007

Mill, John Stuart. On Liberty. Mineola, NY: Dover Publications, Inc. 2002
Originally published, London: J.W. Parker 1859

Turley, Jonathan. “Justice? What a Joke.” USA Today 27 Mar. 2007: 21A

Warner, William B. “Print on the Market and the Ideal of Public Culture” 9Aug99. University of
California Santa Barbara English Department. 28 Mar. 2007:


Devil's Advocate said...

Check out an article I wrote titled, “Reviving the Constitution in Exile.” It is about the importance of Limited Government.

Devil’s Advocate
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drken said...

Nice website. May I link to it on my own blog? I love the reasoning for the black background.

Anonymous said...

The word American is at change. MIRROR IMAGE: Exactly the same / Exactly the opposite
Corruption Fraud and Perjury will soon fade out the old meaning.
Old meaning; American with protection of The American Constitution and Bill of Rights give each American Honor and Respect based on Truth and Justice. no matter rich or poor.
New; American Arbitration Assoc. American is used here which take away the protection of the Constitution and the Bill of Right. AAA clients above truth and Justice in spite of the law. Investigating and charging Martha Stewart is more important than those violating and breaking laws that effect all American Oath of Office
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God

The State said...

thought you might enjoy this twitter

it’s from the point of view of the state

thanks man!