Joel: G’day, Doug. How are things down on the southern tip of the Americas this morning?
Doug: Quiet and peaceful, Joel. Actually, just as you called, I was writing a passage in Assassin, the third book in the High Ground series I’m penning with our mutual friend and partner, John Hunt.
[Ed. Note: Readers can check out the first two books in the series – Speculator and Drug Lord – here.]
The passage has to do with lies and, specifically, the morality of lying. Basically, I've come to the conclusion that telling the truth is mainly an advantage for the truth teller, for a number of reasons. In other words, it's better to tell the truth because it's to your advantage. Which is perhaps counterintuitive, since humans lie constantly, even enthusiastically.
Joel: Those who would peddle untruth soon discover the attendant liability in doing so. As they say, reputations are hard won, but easily lost.
Doug: That’s right. At the same time, you're not obligated to tell anybody the truth. They have to deserve the truth. Sometimes even earn the truth. It's complex; all moral issues are complex. As is the Bill of Rights, which is really a document of moral philosophy.
Joel: Well, the concept of truth is actually germane to our topic for today, which is the 5th Amendment to the Constitution.
As regular readers of these communiqués know, we’ve been working our way through the Bill of Rights, using it as a kind of ethical yardstick against which to measure the present day “State of the Union,” as it were.
Most people recognize the 5th Amendment as the one pertaining to “due process,” which is partially true. The whole text reads:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
For ease of discussion, we can probably break this Amendment up into three separate clauses; the Due Process Clause, the Takings Clause and the Criminal Procedure Clauses, which is really three clauses bundled into one.
That first clause, which most people take for granted, is in many ways the very bedrock of Anglo-American law, going back all the way to the Magna Carta, from which we get the phrase “the law of the land.”
Do you want to talk a little about what exactly “due process” is, why it’s so important and why we discard it at our peril?
Doug: It’s difficult to overstate the importance of the Rule of Law, or the “law of the land,” as it was worded in the Magna Carta. Incidentally, that phrase derives from a verse that was well known over the centuries. It reads, “[n]o free man shall be arrested or imprisoned . . . except by lawful judgment of his peers or by the law of the land.”
In essence, “due process” means that the government must act within a framework of laws, and not contrary to them. More specifically, “procedural due process” concerns the fairness of the decision-making methods used by the courts and the executive.
That governments routinely abuse their own laws is, of course, no big surprise. It’s important to remember that the government is a discrete entity, with a life of its own. It has its own interests, which are very distinct from—and often at odds with-- those of its subjects. It’s not a matter of “we the people”—that canard is strictly PR. The State’s prime directive is to look out for #1-- itself.
Governments constantly violate their own laws. That’s probably the norm rather than the exception today. There are lots of reasons why that’s true. For one, government naturally attracts power-seekers to its ranks; power-seekers are always dangerous. For another, most governments are bankrupt today; they’ll do just about anything – including riding roughshod over their own rules – to get more resources for themselves. And their cronies. “Due process” helps to keep this in check.
In fact, due process is one of the great achievements of Western Civilization, along with the notions of private property, freedom of thought and speech, and other ideals enumerated in the Bill of Rights.
Although due process is a Western concept, wherever it’s been applied – Japan, South Korea, Hong Kong and Singapore, among other Oriental nations – it’s led to hugely increased prosperity and freedom.
Due process requires the State to act according to established law-- as opposed to the arbitrary whim of some bureaucrat, or the seat of the pants, spur of the moment opinion of some judge. This is why observing precedent is important.
Due process is easy to understand when there are relatively few laws, and they’re clear. That’s to say “Common Law” or “natural law” concepts that have grown up over hundreds, or even thousands of years. That’s very different from the thousands of “legislative laws” cranked out by Congress every year.
It becomes very hard to apply due process when there are literally hundreds of thousands of laws and rules—many of which are contradictory—that prosecutors or lawyers bring up when it’s convenient. That’s why common law should always trump legislative law. But the opposite is mostly true now.
The Bill of Rights enshrines common law concepts—although it’s been interpreted into meaninglessness. It’s been over-ruled by legislative laws. As a result due process is obfuscated. Which means that the State constantly becomes more powerful, while the individual loses freedom.
Joel: I imagine many of our readers agree with you that governments have a tendency to observe only the laws they find convenient to their cause, while the rest they break without the slightest compunction.
One area in which politicians and lawmakers seem to have gone particularly hog-wild is with regards to the sheer volume of laws on the books. It is said that the average American commits 3 felonies per day, whether he knows it or not.
Doug: There's this old saying: ignorance of the law is no excuse for violating it. That made sense if you're dealing with common law, which is basically just common sense that anybody but a moron should be expected to be able to figure out. Today, absolutely everybody is ignorant of the law, simply by virtue of the fact that there are so darned many of the things.
Joel: I guess it’s no surprise then that the “Land of the Free” now has – by far – the highest incarceration rate in the world. As a proportion of the total population, America incarcerates five times more people than Britain, nine times more than Germany and 12 times more than Japan.
Doug: The whole system has become corrupt. It’s degraded over time. But that is, I suppose, a natural tendency. That’s what the 2nd Law of Thermodynamics—a natural law, and one I believe in—states. Everything winds down, degrades, and falls apart over time, whether we’re talking about stars, mountains, or human institutions.
It’s to be expected, I suppose, even though it’s a real pity. The very concept of the “Land of the Free” has become an absurd sham. The US used to be an exceptional country, because it had an actual Bill of Rights, and it generally observed it. That’s no longer the case. Increasingly, the US is no better than most of the other 200 nation states that cover the face of the planet like a skin disease.
Many of the laws on the books are not only clumsily worded and poorly drafted, but actually have malicious intent. And as you mentioned, they’re so numerous that the average man has no hope of knowing they even exist—much less understanding them. If the state wants him fined, jailed or worse, its law officers can and will find a way to make it happen. No questions asked.
Joel: Right. Courts supposedly have it within their power to “void for vagueness” statutes that they deem unclear, although of course they almost never do...
Doug: Look, it's very nice that we have the Bill of Rights, and I totally approve of it, even though as we're finding, the whole damn thing is a dead letter.
Speaking of common law and legislative law, let’s go further. I'm of the opinion that there ought to be only two laws, because anybody can remember two things.
One: do all that you say you're going to do. And two: don't impinge on another's life or property. That’s basically common law in a nutshell. Broken down into tort law and criminal law. It’s all in those two sentences.
I'll go even further. Just as scientists are trying to put the laws of gravity, electromagnetism, nuclear attraction and so forth into one great law, I think this can be done for the legal system as well.
I would do it by saying—with a nod to Aleister Crowley—“The whole of law shall be ‘Do as thou wilt--- but be prepared to accept the consequences’.” That second clause is critically important.
It’s a fact that humans generally do whatever the hell they want to do. But they don't think out the consequences.
If people knew that was the whole of the law, then they might exercise more forethought and intelligence before doing something. Of course, for that to work as a practical matter, humans would have to be far more responsible than they are. But it’s an excellent ideal.
In any event, it’s very hard to hide behind a very simple and clear law. Whereas numerous and murky laws work to the advantage of miscreants.
I believe in making things as simple, clear, and in accord with the laws of nature as possible.
Joel: Doug, that sounds clear and concise enough to put 95% of the nation’s lawyers and lawmakers out of a job.
Doug: Not a bad thing, in my opinion. 95% is at least a step in the right direction…
Joel: Thanks for taking the time, Doug. Let’s pick up the rest of the 5th Amendment next week.
Doug: Including the part everyone knows from cop shows on TV, the part about “taking the 5th”.
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