Imagine all the many topics on which one can hold an opinion. There is fashion, food, drink, speech, sex, religion, art, fuel, property, wealth, paint colors and modes of transportation to name just a few. As we assert our preferences through consumption and expression, we affect those around us with a broad spectrum. We can impress or offend, influence or discourage, help or harm, improve or diminish.
As a species, we cooperate in interesting ways to settle on a code of behavior that is positive, negative, acceptable, preferred, and required. And to accomplish these outcomes, we use an unofficial, graduated scale of influences. That progression looks something like trend setting on the lighter end and brute force on the heavy end. In between would include advertising, stylistic expression, evangelism, zoning, taboos, debate, slander, lawsuit, law enforcement, and vigilantism.
Let’s use revealing swimwear as a case study. Influences to what a woman might wear at the beach will come from a variety of sources. The fashion industry will promote their products, starlets will set examples with what they wear, the media will report on reactions to attractiveness versus excess, and police will enforce “minimal coverage” laws.
Consumer response first dictates what will be worn in West Palm Beach and Balboa Island. But sensibilities and public displays are inevitable considerations. At what point, and for which topics, is it advisable for public sentiment to be codified as law?
As Noah Webster set the standard for English vocabulary, Henry Campbell Black established the touchstone for law. Black’s Law Dictionary has been the go-to reference for the legal profession in the U.S. since the first edition was published in 1891. Black defines law as, “a body of rules of action or conduct prescribed by controlling authority, and having binding legal force.” About forty years earlier, the motivation for that legal force was eloquently described by French economist Frederick Bastiat in his pamphlet, The Law, “It ought to be stated that the purpose of the law is to prevent injustice from reigning. In fact, it is injustice, instead of justice, that has an existence of its own. Justice is achieved only when injustice is absent.”
Bastiat wisely proclaimed that law is appropriately a negative assertion. It is rarely to be used to compel an action towards good. Rather, it is a limiting agency that has no personified preferences. “But when the law, by means of its necessary agent, force, imposes upon men a regulation of labor, a method or a subject of education, a religious faith or creed - then the law is no longer negative; it acts positively upon people. It substitutes the will of the legislator for their own initiatives. When this happens, the people no longer need to discuss, to compare, to plan ahead; the law does all this for them. Intelligence becomes a useless prop for the people; they cease to be men; they lose their personality, their liberty, their property.”
Herein lies Bastiat’s 19th Century warning to Americans in the Age of Obama. Laws come from the people whom we elect to state and national legislatures. No less than 7,382 state representatives and state senators collect across fifty capitols every year to enact opinions in the form of state statute. States typically limit the number of bills that can be carried by a legislator for each session, from five to fifteen. If the average state legislator carries five bills, that is 36,910 potential new laws promoted annually within the states. Add to that the actions of 100 senators and 435 representatives at the federal level and we have a mob of powerful people looking to turn their utopian ideals into citizen requirements with compliance backed by weapons and prisons. Bastiat’s The Law has been well maintained for 21st Century consumption as a book widely available in modern formats at all the usual places.
Thanks to the foresight of America’s Founding Fathers, we have a Constitution and Supreme Court. The Constitution maintains a standard of rights against which all of the new laws are to be measured. The primary intent of the Supreme Court is similarly negative as the creation of law. They are tasked to determine whether a law is compatible with the United States Constitution. And provided that they do not promote their own ideology, the notion of having this final authority is sagacious.
But, President Obama’s untempered glee at the opportunity to appoint a new member of the Supreme Court in his first year in office was an early indication of the intended misuse of an institution that deserves far more solemn regard. So I say, “Thank God for Senior Associate Antonin Scalia,” who spent much of the month of June pressing his fingers into the holes of the marble dykes of Washington, D.C. The 2013 Summer decisions from the Supreme Court show how Justice Scalia has been steering the entire ship with the influence of his powerful reasoning. The highlight was the rare moment of reading a dissenting opinion, rather than the usual printed delivery.
Scalia joins fellow Townhall personality Hugh Hewitt in astute quotes on this important understanding, leading up to the 237th annual celebration this week of our nation’s birth. Scalia accused the liberal members of the Supreme Court as having, “an exalted notion of the role of this court in American democratic society." American liberals are now aggressively advancing their philosophy through positive assertions of the law. This is a terrifically dangerous phenomenon that is prevented only as Antonin Scalia is able to find sufficient humility and rationale in his fellow justices. As Hugh Hewitt stated on his radio program last Friday, “Government is now self-actualizing; having its own motivations.”