That we're a nation of laws isn't in itself saying much. Iraq's forebears were a nation of laws under Hammurabi, but it couldn't have been very pleasant to live under a regime in which women who left their husbands were drowned and the punishment for medical malpractice was to cut off the surgeon's hands. (Even then the insurance industry knew how to scrimp on payouts.)
The Soviet Union was a nation of laws, too. So were the Balkans' genocidal little countries in the 1990s. So was Rwanda. The mass graves filled up anyway.
To mean anything at all, laws have to be just, they have to be realistic and they have to be enforced. The United States has never had trouble with the enforcement part. We're nothing if not a nation of enforcers. Luckily, the kinds of laws we live with are, on the whole, among the fairest ever devised. Unlike Hammurabi slash-and-drown codes, the Constitution is firm but not cruel. Its realism keeps its idealism honest. It recognizes that men are generally crummy creatures who can't be trusted with too much power. Its genius is to have found a way to diffuse the crumminess through a marketplace of competing self-interests. Hence, the proverbial checks and balances.
That our laws have been on the whole among the fairest ever devised also isn't saying much. The competition for good laws in human history is slim to none. The competition for bad laws in American history is fierce, beginning with the Constitution's own dyspeptic equality clause. Significant progress notwithstanding, the "law of the land" has yet to fully digest the notion of equal opportunity for more than those who can buy their way to it, and the Constitution's interpreters have never lost their knack for confusing "the pursuit of happiness" with the pursuit of dividends and other people's money, preferably with government help.
But every generation has had its share of weird and backward laws, the sort of legal aberrations that make it more expedient for a president to wield power and for a lazy Congress to seem assertive. John Adams had his Alien and Sedition Acts, which invited suspicion of immigrants and criminalized any critical opinion of the government. Massacring Indians was a favorite sport of Andrew Jackson's, but in order to indulge it he had to act as if Supreme Court decisions had the legal standing of a fugitive slave. His contempt was infectious. "The farce of dealing with Indian tribes," as Jackson put it, meant that none of the 374 treaties signed with Native Americans by 1868 were worth more than the feathers they were inked with. By then the nation got busy dealing with the farce of Reconstruction, when lawmaking turned its deceptive wiles on blacks, a political pastime that continues to this day with such legal sophistries as affirmative action and the gerrymandering of "majority-minority" voting districts -- two effective ways of patronizing black participation in society while isolating it in politics. All legal, all seemingly constitutional, for now.
With blacks effectively re-repressed and few Indians left to chase at the turn of the 20th century, the federal government's medieval instincts turned to organized labor and working-class whites, who were managing more than PR victories against trusts and corporations. Their whiteness was a complication of sorts. Too many Americans
risked identifying with them rather than with the moneyed class that sought to vilify them. The solution was to colorize them, call them "reds," prejudice them with the whiff of socialism, a sure-fire way of rallying the Babbitts and Gatsbys to Wall Street's side of paradise. Methodically, sometimes forcefully, always legally, the populist movement was put down. Bull Moose fever yielded to the fat conservatism of Chief Justice William Howard Taft and the thin presidencies of Warren Harding and Calvin Coolidge.
What was good for the 1920s was warm-up for the Cold War, when the best way to keep Americans in line was to subject them to loyalty oaths and such repression-loving laws as the Smith Act, a rehash of the Sedition Act, and the McCarren Act, which criminalized any participation in anything deemed (or, more accurately and much more often, imagined) communist. All legal and, for the most part, troubled neither by congressional checks nor by Supreme Court balances. The nation was at one with its liberty-busting fearmongers.
Which brings me to the USA Patriot Act. The law is 342 pages long, or 57,000 words, making it a bit longer than Dostoevsky's "Notes from Underground" or, if you're partial to pigs, about twice the size of Orwell's "Animal Farm." The Patriot Act is the reigning champion of government's un-American activities. The law wrecks a gener-ation's worth of constitutional protections against government snooping, legalizing police-state tactics in searches and seizures, criminalizing certain forms of speech and political activity, and opening the way to the mistreatment of foreigners in government custody, wholesale expulsions and imprisonment. It is a repugnant, unnecessary law that goes against the very principles its name stands for. Yet, it remains unchecked and unbalanced either by public opinion, lawmakers or the courts (one low-level federal court's minor exception aside).
So, yes, we're a nation of laws. But the laws aren't much to speak of when they're designed to hoodwink the public and win its docility. Neither is public responsibility much to speak of these days when its docility is secured with nothing more than a ploy-riddled play on the word patriot.
Tristam is a News-Journal editorial writer. He can be reached at firstname.lastname@example.org
© 2004 News-Journal Corporation