It Is Dangerous to Be Right When the Government Is Wrong (33 page)

Essentially, the purpose of the statute was to enable police to arrest those people who just have that certain “up to no good” look about them; stated differently, to permit Jacksonville, Florida, police to arrest anyone they wanted to arrest. Although eventually you will find a genuine criminal if you arrest enough people who fit those descriptions, clearly such a law is unjust to the clumsy amongst us who were confused for common drunkards. For quite obvious reasons, the Supreme Court struck the statute down for being too vague.

Lest one believe this statute was an isolated incident, consider the text of the following Act:

For any lawful stop . . . made by a law enforcement official . . . where
reasonable suspicion exists that the person is an alien and is unlawfully present in the United States
, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person. (Emphases added)

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As many readers were probably able to guess, this is the pertinent text from Arizona's recent infamous immigration law, the constitutionality of which is being challenged and the enforcement of which has been enjoined, as this book is being written. How is the phrase “reasonable suspicion . . . [of being] unlawfully present in the United States” any less vague and ambiguous than “strolling around . . . without any lawful purpose”? If one wants to avoid getting stopped by the police while driving, he can simply avoid speeding or swerving. But how does one avoid looking like an illegal immigrant, or how does one walk without looking like a “habitual loafer” for that matter? And similarly, how are the police to recognize such persons?

The law, as I have said before, must have standards. If it did not, then Congress could simply speak words proclaiming that gambling is illegal, and without more, it would be. Or it could sneak the law itself into a drawer and never speak of it again (similar to what it does with earmarks). Even Positivists concede that, at a minimum, the law must be “written.” Thus, there are certain minimum requirements which a law must satisfy. By contrast, if it was not enacted according to these “procedures,” then it cannot be called a law.

So what exactly are these standards? The late, great Lon L. Fuller, former professor at Harvard Law School, outlines eight requirements. Laws must be

1. expressed in general terms, and

2. publicly promulgated, and

3. not retroactive, and

4. easily understandable, and

5. consistent with one another, and

6. not impossible to obey, and

7. not changed so frequently that the subject cannot rely on them, and

8. administered in a manner consistent with their wording.

What is Professor Fuller's basis for identifying these eight requirements? He notes that without them, laws would be, as a practical matter, without any effect, since the purpose of the law is to “subject human conduct to the governance of rules.” Consider the Jacksonville vagrancy and Arizona immigration laws once more. How can one subject one's conduct to such rules? In other words, I ask these questions: How does one avoid looking like an illegal immigrant, or a habitual loafer for that matter; and can the government proscribe the way people appear; and whose freedom do these laws protect? Without these standards in place, a legal system would fail to guide individuals' conduct, and thus, it would not be successful as a legal system. Although many contend that society would degrade into a lawless, kill-or-be-killed disarray under a libertarian regime, we can see from Professor Fuller's requirements that it is in fact when Natural Law principles are not abided by that true anarchy occurs.

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Although Professor Fuller's analysis is more focused on the efficacy of a legal system, these requirements are equally necessary in ensuring that we are deprived of liberty only when genuinely warranted, the true purpose of due process. Consider how just a system would be if it did not comply with each of these requirements. For example, what if the law was so hopelessly complex that one couldn't understand what it in fact prohibited? We could then be punished for doing something we didn't even know was illegal. Moreover, criminals would be able to get away because police didn't know that what they were doing was illegal either. Even worse, if laws were impossible to obey, the government could charge only its political enemies, and win a guilty conviction every time.

To this extent, consider the use of vagrancy statutes in the Jim Crow South. Because overly vague criminal statutes offer no standards, as suggested above, they also give law enforcement officials no guidance in how to apply those laws. This not only facilitates, but encourages discriminatory application of the law. Such was precisely the intended effect of such vagrancy statutes in the Jim Crow South. Recall that the vagrancy statute in
Papachristou
criminalized the act of “loafing” or, in other words, appearing lazy. These statutes would be used to pressure unemployed African Americans or unwanted Caucasians to enter into unfair labor contracts; many would accept unconscionable terms since the alternative was criminal penalties. Thus, these laws were used to perpetuate an economic system which resembled slavery.

But, one may retort, the Arizona immigration law is just “different,” that is, it is seeking to address a legitimate problem, and these legal requirements of definiteness are not protecting liberty, but simply inconvenient and impeding law enforcement efforts. It is therefore “unfair,” so the argument goes, to compare the law to vagrancy statutes in the Jim Crow South. The answer is that, although the Constitution was intended to set up an effective government, it was not intended to be “convenient” or, in other words, to be relaxed when we deem it proper to do so. Moreover, the Founders specifically warned us that the biggest threats to our rights were not sudden, outrageous transgressions (such as internment of Japanese Americans during World War II), but gradual, piecemeal erosions of liberty. Due process does not prevent Arizona from dealing with immigration problems in an efficient manner, merely from using arbitrary and vague laws which give police officers no guidance and permit them to violate
anyone's
natural rights. Even if this constitutional “problem” may seem small relative to the problem of illegal immigration, that cannot change the fact that we are a nation of laws, and laws are required to have standards.

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Jury to the Rescue

In 1733, the newly installed New York colonial governor, William Cosby, had caused quite a controversy by prosecuting and removing a number of important government officials who had opposed him. Outraged at this manifest injustice, a number of influential citizens established the
New York Weekly Journal
, the first independent political newspaper in the colonies, in order to criticize the governor and his actions. John Peter Zenger was hired as its first editor and printer.

Floored at public criticism, Governor Crosby had the
New York Weekly Journal
's newspapers burned and Zenger arrested and charged with the crime of seditious libel. The prosecution argued that the newspaper sought to “traduce, scandalize, and vilify” the governor, and thus, Zenger should be punished accordingly. Andrew Hamilton, the lawyer for Zenger, responded that it would be manifestly unlawful to punish “the just complaints of a number of men who suffer under a bad administration.” The difficulty for Hamilton was that he had no established cases supporting this position; truth could not be a defense to a charge of seditious libel.

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Hamilton, one of the most brilliant lawyers in the colonies at the time, thus devised the following strategy: Convince the jury that the law was not just, and they should therefore acquit Zenger, even if he was genuinely guilty according to the established law, a device known today as
jury nullification
. In his address to the jury, Hamilton framed the significance of the case:

[T]he question before the Court and you, Gentlemen of the jury, is not of small or private concern. It is not the cause of one poor printer, nor of New York alone, which you are now trying. No! It may in its consequence affect every free man that lives under a British government on the main[land] of America. It is the best cause.
It is the cause of liberty
. And I make no doubt but your upright conduct this day will not only entitle you to the love and esteem of your fellow citizens, but every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny, and by an impartial and uncorrupt verdict have laid a noble foundation for securing to ourselves, our posterity, and our neighbors,
that to which nature and the laws of our country have given us; a right to liberty of both exposing and opposing arbitrary power . . . by speaking and writing truth
.
³
(Emphases added)

The jury, roused by the eloquence of Hamilton, disregarded the established law and returned a verdict of not guilty. Stated differently, the jury ignored corrupt man-made laws and ruled according to the Natural Law. Unable to control the jubilations of the courtroom spectators, the governor's Chief Justice sulked out of the courtroom, having failed to suppress the right to speak out against the government's injustices.

Unlike the discussions here which have dealt with the process of drafting and promulgating a law, litigation procedure relates to how those laws are actually applied to individuals. Typically when we think of due process, it is these sorts of laws that come to mind: Juries, rules of evidence,
habeas corpus
, and so on. The importance of these rules of procedure is brilliantly highlighted in the John Peter Zenger trial; without a jury, the governor's judges would have found Zenger guilty and thrown him in jail, thus eviscerating his natural right to criticize the government. As Hamilton urged the jury, they were capable of countering tyranny in their capacity as jurors, thus ensuring the just application of the law. There are much too many rules of procedure to cover even briefly in this remainder of this chapter. Thus, we shall focus on the role that litigation plays in properly constraining the government and on one of the most important components of any lawsuit: The right to a jury. Despite being one of the most fundamental procedural rights rooted in our legal tradition, we shall see that it has still come under attack in recent years.

Even if a legislative command is passed according to all of the procedural protections discussed above, how must the government go about depriving people of their liberty? Can the government extort twenty billion dollars from BP merely by demanding and threatening (as was done) or by passing a law which satisfies Professor Fuller's eight requirements (as was not done)? Sadly, the Supreme Court has oftentimes taken the stance that the act of passing a law itself satisfies the requirement of due process. This view, however, entirely disregards the other “half ” of due process: Fair hearings in neutral courts, preceded by ample notice of litigation and an opportunity to appeal. This is procedural due process. The government can under no circumstances deprive one of life, liberty, or property without litigating it in courts; in essence, the government, like any other entity or individual, must persuade a jury that BP has violated the law, and that for whatever reason, the federal government itself is entitled to compensatory damages in the amount of twenty billion dollars. Without access to courts and fair hearings, then the propriety of a government action is entirely in the opinion of the very government that took it. It therefore violates James Madison's famous truism that “no man is allowed to be a judge in his own cause” and subjects us all to the tyranny of the majority.

In order to ensure that one is deprived of liberty only when genuinely warranted, that deprivation must take place in a neutral court and possess the following elements: Notice, hearing, fairness, and a right of appeal. These elements are as old as our legal culture. As has been proven over time, each is essential before a deprivation of liberty can be considered proper. For example, could the government commence a lawsuit against you without first notifying you, and then collect a default judgment after you fail to defend yourself in court? Clearly not; there is a requirement that interested parties receive adequate notice. Moreover, the right of appeal plays a crucial role by ensuring that judgments are in fact correct, and that a litigant was not the victim of a judge's improvident behavior.

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Like the above requirements, juries have ancient roots in our legal system. When the Magna Carta proclaimed in 1215 that “no freeman shall be hurt in either his person or property, unless by the lawful judgment of his peers, or by law of the land,” it thus guaranteed a right to have convictions determined by juries. Blackstone adamantly praised the role of the jury in securing justice: He contended that they served as a crucial restraint on improvident judges. This is so for two reasons. First, without a jury, litigants could be at the mercy of a corrupt or prejudiced judge. Similar to the problem with vague statutes described above, a judge could determine guilt for nearly any reason he wished, regardless of actual guilt or innocence. Second, judges possess a bias by virtue of being appointed by some machinery in the government or elected by voters for partisan reasons, which is mitigated by the presence of a jury comprised of the people themselves. In essence, without a jury there could be no such thing as separation of powers, and the government would be, in the words of James Madison, “a judge in its own cause.”

To illustrate the crucial role that juries play in our legal system by ensuring that deprivations of liberty only occur when warranted, imagine how the John Peter Zenger trial would have come out differently, if he did not have a jury trial. As noted above, the judges were appointed by the very same governor who had charged Zenger with the crime of seditious libel. Interestingly, Zenger's initial attorneys were disbarred after they challenged the judges for their loyalty to the governor. Consider the Chief Justice's instructions to the jury, issued before they took leave for deliberation. As we can see, arrogance was just as common then as now. Imagine the Chief Justice's face when the jury didn't follow these orders: