Debatable Laws

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Broken Laws: A Three-Part Series

Part II: Debatable Laws


          Let’s say you want to smoke pot.  Unlike some, you have no moral problems with it.  You’re informed about the health risks, and, having weighed them with reasonable care, you decide the prospect of the fun outweighs the hazards.  Why not indulge?  It’s against the law, of course.  But what hold does a law that you see no point to have on you?  Not an easy question to answer, as it turns out.


          In the Declaration of Independence there is language we all know to the effect that governments “deriv[e] their just powers from the consent of the governed.”  And this is, as Jefferson so well expressed it, “self-evident.”  And if it’s true that the consent of the governed is indispensable to the “justice,” i.e. the legitimacy, of the “powers” behind the law, then, at first glance, the pot laws – along with all others — don’t seem to be the product of “just powers.”  One thing you know for sure is that no one ever asked you for your consent to this particular act of government power, or even to the constitutional scheme from which it emanates. 


          No one now alive was part of the electorate that ratified the U.S. Constitution.  Who knows what percentage of Marylanders alive today voted on the 1968 proposed amended Maryland Constitution?  Not too many, we can be sure.  With rare exceptions, voters never get asked directly whether they approve of a particular piece of legislation or court decision.  So in truth no one has ever asked us whether we even wished to be governed by the body of laws that govern us, let alone whether we have consented to the imposition of penalties for pot.  So if actual explicit consent of the governed is the criterion for the legitimacy of laws standing between you and your Acapulco Gold, there’s no moral reason to refrain. 


          There’s a potential response out there, what we might call consent-by-estoppel.  That is, we all benefit from the roads, the schools, the armed forces, the court system, the governmental regulation of trade and the environment, etc. and only if we choose to opt out of all those benefits do we have the right to say that the government does not legitimately govern us.  We could, if we chose, move to some deserted rock in the middle of the ocean and declare ourselves free of any government.  So goes the argument.  It’s not a very convincing argument, however.  We didn’t ask for the benefits, nor did we ask for them to be coupled with the whole system of demands upon us that the law makes, so why should we have to go to extraordinary lengths to avoid them in order not to be estopped?  Besides, why should everybody be estopped when no one save our legislators has been consulted?  Estoppel implies two parties, one who detrimentally relies, and another who induces the reliance.  But those who relied by setting up the system in the first place are all dead and gone.  There’s really no one there any more whose reliance should estop us.


          Of course the converse of the argument, i.e. the position that each of us has a right to be consulted on everything, is also unconvincing.  There is no practicable way to hold a rolling plebiscite on the legitimacy of the system and each of its emanations so that each person affected by it is given the individual choice to reject it. 


          So where does that really leave us?  We cannot, as a practical matter, ratify all the laws and the system, but we must have a system.  We are, in short, forced to act as if our system were properly legitimated, when in fact it holds at best only an approximation of legitimacy.  That approximation is provided by our legislators and judges who are deputized to act for us.  But again, the system under which they are deputized was never submitted to the living for ratification.  They do assure that laws are passed according to the rules of the constitutional game.  But since the living have never agreed to those rules, the mere consistency of the laws with those rules adds no legitimacy that wasn’t already there.  Let us be blunt, therefore.  When you get down to it, so long as you agree with Jefferson that the consent of the governed is necessary to the legitimacy of governments, the legitimacy of the laws passed by those governments is a matter of sheer unverified, unverifiable, and unstable convention.  Unstable, because at any point enough of the governed might change their minds to render a previously legitimate law illegitimate.  As Luigi Pirandello put it: Right You Are, If You Think You Are.


          Could Jefferson have been wrong?  Can there be legitimacy without consent?  Certainly the majority of governments over the ages have been justified by notions other than Jefferson’s.  But such governments have tended to be despotisms and theocracies.  It is doubtful those notions are even as palatable to us as Jefferson’s.  We probably have to take Jefferson as a starting point, like it or not.


          And so back to your craving for pot.  Your elected representatives have voted that you may not indulge; we have seen, however, that their directives are of uncertain legitimacy at best.  I say at best, because even if there were a plebiscite tomorrow on the legitimacy of our system, and everyone but you voted in favor of it, there would be one member of “the governed” who did not give his or her “consent”: you, a majority of one, in Thoreau’s famous phrase.  After the plebiscite, the system would be legitimate for everyone else, but it would still not be legitimate for you personally (unless you had consented in advance to be bound by the will of the majority).  In fact, however, the last such plebiscite was conducted over two hundred years ago and probably won’t ever be conducted again.  We literally have no idea whether a majority today would set up a system under which legislators possess the right to control intimate decisions like whether we put tetrahydrocannabinol into our own bloodstreams.


          It’s a reasonable step from these premises to the view that the legitimacy of any particular part of the law will therefore depend not on the way it was passed, but on the actual substance of that law.  And as it turns out, laws that restrict people’s pleasures are among the hardest to legitimate under a “consent of the governed” standard.  Take, by contrast, laws forbidding murder.  Most of us agree that there should be laws against murder, an agreement shared even by most of those who commit it.  (If you’ve ever represented anyone on death row, you know this.)  These laws really do command “the consent of the governed.”  Not so drug laws.  Typically, the only people who really agree with these laws are the ones who would not wish to disobey them, while the people whose behavior they seek to control truly do not give their consent.  (Which is why, to the very limited extent these laws are obeyed by those inclined not to, it requires a considerable expenditure of our limited police resources.) 


          Now I am not saying that it is wise or unwise, moral or immoral, for society to have laws against drugs.  I am merely questioning the legitimacy of such laws – although I would maintain that it is not usually wise or moral for a society to have too many laws that do not possess obvious legitimacy in the form of popular assent.


          Meanwhile, the degree of legitimacy a law commands is a constantly changing thing.  If as I maintain the true index of legitimacy is the breadth of popular support, including without exception support among those regulated or burdened by the law, then obviously at any given moment, the level of assent may drop below some critical mass.  This mass is not quantifiable; it’s more like pornography: you know it when you see it.  This, in essence, in exactly what the Supreme Court recently decided about the laws criminalizing homosexuality – that the support of the people for these laws had reached such a nadir that few states even had such laws on the books.  At that point, the right to be gay became protected by Due Process – a turnabout that enraged Justice Scalia, but showed a lot of common sense, as a matter of jurisprudence.  Due Process should protect you from laws that are illegitimate, whatever the formalities that attended their passage, even if those laws were legitimate only yesterday.


          By lighting up that joint, then, you are manifesting your lack of consent to the pot laws, and, pro tanto, delegitimizing them.  You are, if you will, sitting in one small judgment of the legislators who passed these laws.  From a moral standpoint, you may not feel you should.  You may feel that it is better that laws be changed through debate and through constitutional channels than through scorn and desuetude.  But then again you may not; this is truly a matter between you and your conscience.


          It is important to understand, as a matter of conscience, that what you do does have these implications.  Nibbling on those Alice B. Toklas brownies rejects the authority of the state to pass these laws, and substantively disrespects the legislature’s attempt to address concerns about public health, about the crime and public corruption that always attends the drug trade (separate from the crime of carrying on a drug trade itself), about the lives ruined by addiction, about the economic costs that drug intoxication imposes.  It is a dynamic act, placing your weight on the balance scale against the legitimacy of these laws and the concerns that motivated them.  You may well feel that this is acceptable.  Many do.  But whatever you do in this regard is not trivial.


          Thus it is with all debatable laws.  There are always serious policy arguments on both sides.  With pot laws, for instance, the flip side includes the value of individual autonomy, the medical benefits of marijuana for some, and the destructiveness of the war on drugs that has too often become a war on drug users, not to mention the absurdity of banning pot while licensing alcohol and tobacco. If you break debatable laws you assert your moral authority to enter your own voice in the debate, your unwillingness pro tanto to be a subject of the legislature or the courts, your status as their peer.


          And at that point there is no should about the issue.  You have to decide for yourself whether to assert that status.  God and history will judge.


          But now let’s change the hypothetical.  Let’s say you’re a lawyer, sworn to uphold the laws, all of them.  Even the ones you disagree with.  In my last column I suggested that there are some laws so bad that no oath of fealty, even a lawyer’s oath, can possibly require us to confess ourselves morally bound to them.  What I call debatable laws are not in that category.  I would suggest that being a lawyer should make a difference here.  The law may not really have the absolute moral authority some claim for it, but our body of laws does tender a structured and serious approach to ordering our society.  If we profess the law, we are accepting the tender, and selecting that structure as our primary template for moral and ethical choices.  Our professing the law goes deeper: we depend on the integrity of that structure for our daily dealings: advising clients, transacting their business, assisting them in their conflicts, agitating within the structure to change it.  Managing to possess personal and moral integrity is a challenge at all times.  Trying to do that, not to mention maintaining personal or professional credibility, while simultaneously supporting and undermining the legal structure, is almost impossible.  Either we profess the law or we do not.  And if we do, then except for the laws that are truly unforgivable, we need to conform to pretty much all the laws, if only for mental self-preservation.


          Of course, the crazier or sillier the law, the less the insult either to the law or to the lawyer’s psyche when the lawyer breaks it.  Many reasonable people consider the pot laws as silly as they come.  Their presence on the books itself arguably undermines the legal structure; an individual lawyer’s apostasy in toking up cannot possibly do as much harm, and may in rare cases advance the interests of the structure by delegitimizing the laws.  The interests of the structure can also be advanced at times by civil disobedience, e.g. violating trespass laws as a part of a political demonstration against other, arguably unjust laws or policies (the trespass laws themselves being generally undebatable).  But in general lawyers do good neither for themselves nor anyone else when they do not personally conform to the law.


          Next time: traffic lights.


Copyright (c) Jack L. B. Gohn


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