Francis at Liberty’s Torch provides us with some illumination: The Anarcho-Tyranny Chronicles.
Judicial Tyranny is, of course, nothing new. The courts have long found excuses to rule on things which the Constitution grants them no power over. The most recent, of course, being gay marriage. Now, wherever you stand on the matter of gays getting married, it is factual to say that the Constitution is absolutely silent on the matter. There is nothing in it which grants or denies the act.
Therefore the Supreme Court should not be able to rule on it.
There have been many other such instances, such as abortion, education, etc… and always, it seems, the courts rule on these matters anyway. But Francis explains how this can lead to a sort of twisted judicial tyranny, or, as he puts it, anarcho-tyranny.
If you’ve been a Gentle Reader of Liberty’s Torch for a goodly while now, you’re probably familiar with the late Sam Francis’s coinage anarcho-tyranny. For those who haven’t yet made the acquaintance of this useful term, here’s the original formulation:
“What we have in this country today, then, is both anarchy (the failure of the state to enforce the laws) and, at the same time, tyranny – the enforcement of laws by the state for oppressive purposes; the criminalization of the law-abiding and innocent through exorbitant taxation, bureaucratic regulation, the invasion of privacy, and the engineering of social institutions, such as the family and local schools; the imposition of thought control through “sensitivity training” and multiculturalist curricula, “hate crime” laws, gun-control laws that punish or disarm otherwise law-abiding citizens but have no impact on violent criminals who get guns illegally, and a vast labyrinth of other measures. In a word, anarcho-tyranny. [From the essay Synthesizing Tyranny, written shortly before Francis’s death.]”
The longer I live, the more I come to view anarcho-tyranny as the terminal state toward which all governments tend as they mature and degenerate.
This is essentially the state in which we live today. Think about it, the state will tax you, the state will regulate you, the state even consider disarming you. You are punished by being lawful. You may utter a word that offends someone, and for this you may be fired, or your privileges taken away from you, or otherwise ostracized for this. No laws have been broken, but this is allowed because it is deemed private.
Yet the criminal may get away with less punishment from the state because of his race, or religion, or because someone makes an excuse for his behavior. Consider that each state has arcane and difficult-to-navigate firearm restrictions. I’ve a 32 round magazine for my Ruger P95. That mag is perfectly legal in my home state of Florida. If I were to cross into New York bearing it with me, I could be arrested for a felony even if I didn’t know better.
Meanwhile, the guy who stole my friend’s car and drove it into a ditch didn’t even serve jail time for the offense.
Now, consider the concept of justice here. What society-at-large is telling us, regardless of the source of justice, is that carrying a 32 round mag, even if you don’t have the firearm it goes with on your person, is objectively worse than stealing a car and crashing it into a ditch. It is saying that the person who says a bad word should suffer more than the person who breaks into your home.
Just as Leftists dream of redistributing the wealth, they also want to redistribute the justice. The law-abiding white guy in the suburbs must pay the price of his entire livelihood for, say, calling a woman fat. The criminal with a record as long as my arm, meanwhile, must be forgiven his crimes — even if he charges a police officer and tries to kill him.
It’s okay for Black Lives Matter protesters to set their own city on fire. It’s not okay for me to own a means of defending myself.
But I digress. Francis was talking about a much more specific miscarriage of justice, a case where the courts have divorced themselves utterly from the purpose of their existence:
James Madison, often called “the father of the Constitution,” regarded the courts as “the least dangerous branch” of government. The widespread belief is that that was because the courts were allowed no enforcement arm, apart from the bailiffs allowed for keeping order during a court proceeding. However, this reverses cause and effect. The courts were allowed no enforcement arm because of the danger they would otherwise pose, as is well established by English history.
The great majority of judges in pre-Industrial Revolution England, from which much of our legal tradition derives, were not government employees, neither elected nor appointed nor hired. They commanded deference on the basis of their personal qualities and their willingness to sit as judges; in other words, from popular respect for their wisdom and diligence. If you’ve heard the term “circuit judge” and have wondered about its provenance, it comes from the time when a judge would routinely “ride a circuit:” i.e., he would regularly travel a known route from place to place, hearing such cases as were presented to him in each place and ruling on them according to the “common law,” another American inheritance from England.
To make this a workable living, a judge needed to be known and respected in each of the stops along his circuit. A judge’s enforcement arm was the willingness of the commoners whose cases he heard to enforce his rulings. Thus, he had to have a reputation for fairly and consistently applying both the common law and what precedents might exist for its enforcement. For a judge to become known as capricious or arbitrary – e.g., for promoting his personal views over the common law as English commoners knew it – would spell the end of his career.
Amazing to think of, right? A judge who rode from town to town, dealing justice based primarily on his own reputation, not any appointment from up on high. The king did not command him thusly, he did the thing on his own.
Ironically, an equivalent does exist in modern American jurisprudence: arbitration. Have you ever seen those bizarre court shows on TV? You know, Judge Judy and the like? Before entering the “courtroom”, the parties sign an agreement to abide by Judy’s arbitration. She’s not really a judge anymore (she used to be).
But she is, in essence, a circuit judge of the old style, albeit with a heavy does of entertainment to go along with it. I imagine, however, it may have been similar in old England. Perhaps that was a form of entertainment for the villagers as well, their equivalent of Jerry Springer, or something. The circuit judge would ride into town, and people would line up to hear the arbitration, and perhaps laugh at the loser if he was particularly stupid.
Point being, though, that Americans are accustomed to thinking of judges in a sort of top-down manner. As deriving authority from the government, and not from popular reputation. Thus can a miscarriage of justice happen. What the King wants is usually not what the commoner wants, regardless of what is actually just.
England’s problems with “star chambers” and the like came about because of courts whose authority descended from the Crown – i.e., whose enforcement arm was the force commanded by the King. Common-law judges posed no such problems, precisely because they had no enforcement power of their own. Indeed, it was often the role of a common-law judge to prevent a lynching or other variety of mob “justice:” something only a very well known, well respected jurist could do by force of character.
Even though American judges are government employees, the essence of the English common-law judicial system – that the court have no enforcement arm of its own – was largely preserved by the Founding Fathers. The courts’ authority is essentially one of popular consensus concerning the probity and wisdom of the courts: i.e., that the courts are assessing the laws faithfully rather than whimsically or capriciously.
But by innumerable capricious judgments: both failures to uphold the black-letter law and usurpations of jurisdiction that in no way belong to them, the courts have destroyed that consensus. Where, then, do we stand?
Today, we stand in a strange place. I remember some time ago that a woman was on the news for having ordered a coffee from McDonalds, and then spilling all of it over ah… shall we say, a very sensitive area.
There were lawsuits, and media talking heads discussing it. At a high level, the assumption was that the woman would gain a respectable settlement, at least several hundred thousand dollars, for her pain and suffering.
The consensus on the street was that this woman was a fucking idiot, pardon my French, and that if you order hot coffee, putting it between your legs is the height of folly. This was common sense, as distinguished from the sensibility of the aristocracy. The working stiffs were irritated, because everyone thought McDonalds would lower the temperature of their coffee, and that now their drinks would be cold by the time they got to work, the extra temperature being useful for keeping it warm long enough to get to the office.
High courts and commoners can no longer even agree on what justice is, much less how it might best be applied.
The term “court of public opinion” is interesting here, too. For these days, there’s an entirely different court which may preside over you. Not the respected justice, travelling from place-to-place, ruling on matters according to the will of the people. No. This is different. This is government, media, and entertainment celebrities agreeing on what justice is, and what it ought to be, and then telling you that if you do not comply with it, they will sic their hordes of Social Justice Warriors on you. They call it a court of public opinion, but it’s really a court of aristocratic opinion.
We don’t have much of a lower court anymore, for even the lower courts are starting to act like high courts.
This is, as Francis put it, part of a much larger cycle:
Why, right where we are today, of course: enmeshed in a steadily deteriorating, ever more anarcho-tyrannical context. At the moment, the only escape is to even less desirable places. That might change; developments in space flight and workable space habitats are ongoing, and it’s impossible to say if or when they’ll mature. But the cycle itself appears to be embedded in human nature. If that’s the case, then no matter where men go, the cycle will go with them.
And there you have it. I wish there were viable starships and space habitats today. I’d be off this rock in a heartbeat. Let the Communists and Islamists eat each other. I want out.
But, failing an escape route… we will have to fight.