Down By Law, Volume 1
Disclaimer: This is all written in my capacity as a private citizen, and the view stated here do not reflect those of my employer.
These are crazy times. The world is experiencing resurgent waves of nationalism and xenophobia, feeding into the imagined idea of a clash of civilizations that can be avoided with some good sense. Despots and war are creating millions of refugees and heightening international tensions. Oceans and the atmosphere are warming. Systemic racism abounds. Social safety nets are threatened.
But, there's lots of good in the world, and there are lots of good people trying to figure out how to push us all towards justice. This is part one of our series where Kevin De Liban, the Legal Lyricist, introduces in accessible ways some supremely relevant tenets of law, government, and justice. It all takes place through a hypothetical prism of government action against weak, wack, corny, slaw, bootsie, and/or janky rappers, a topic that might at first appear frivolous, but, as will be revealed, reveals the heart of sacrosanct ideas of representative democracy.
"We're a nation of laws, not men." We've heard that line repeatedly, especially lately. It comes in other forms, too, most notably in the idea that we are governed by the "rule of law." But, leaving aside for the moment of whether that's true (as Jay-Z once said, "I just sit on my money till I'm above the law"), what is actually meant by "rule of law"? It can be especially confusing when "laws" have been around beyond written history, with evidence of written ones dating back over 4,000 years. And, certainly, the billions of humans who've lived in that time have been subject to laws.
Basically, "rule of law" is supposed to mean rational exercise of government power. It means that we don't let King Joffrey's whimsical perversions--or those of the actual, modern rulers and the bureaucratic state--become official government action. And, in the event that the government can't be stopped before it does something inconsistent or irrational, the "rule of law" is supposed to give us a way of fixing things.
Rulers--whether kings, emperors, pharaohs, khans, or caesars--used to be able to determine the fate of anyone or anything with very little check on their power other than domestic or foreign rivalry. You might not piss off key supporters unless you want to incite an uprising or have a song called Assassination Day written about you. And, you can conquer as widely as you want until you run into someone that won't let you go further.
At the same, expanding kingdoms brought greater territory to administer, forcing rulers to give ever-increasing authority to act to people further than a day's horse-ride away. Sometimes, they were appointed. Sometimes, they were hereditary nobility with titles like "duke" and "count" and "baron" and so on. Whatever the case, they had a lot of power over the day-to-day lives of the people in their territory.
Because the kings might levy heavy taxes or conscript these elites into military service, they thought kings had too much power and attempted to resist with either the threat of or actual war. They sought limits on what the kings could do. In European history, people often cite the the Magna Carta as the foundational document restraining the king's power. After some time, parliaments, populated with members of the elite, develop in some places to provide further checks on the king's rule-making power. Other classes emerge, like the merchants, and gain enough money or power to extract further concessions. And, and least in Europe, the Catholic and, later, Protestant churches had interests that sometimes diverged from those of the king and sought compromises in return for support.
There's a lot more to the story, especially the idea of extending protections first granted to elites to other classes of people. But, at heart, the "rule of law" is an attempt to restrain government power so that it is used in a rational--not arbitrary--way. What rational means can be up for debate, but it involves justification and consistency. There should be defensible reasons for taking particular government action based on some sense of the public interest. And, ideally, similar factual situations should produce similar outcomes.
The principle, at least in theory, permeates every level of American government, underpinning ideas of multiple branches of government, checks and balances, separation of powers, the differences between state and federal governments, and other ideas from introductory civics and political science classes that are easy to forget.
Let's move to our example of the wack rapper. In the old days, the only definition of "wack" that mattered was the king's. Wack could mean something that was critical of the king, that didn't match the king's flavor, that wasn't smooth enough to make illegitimate children to, or even something that the king thought gave him indigestion when eating. Whatever the criteria, once the king decided someone was wack and wanted to punish him, the king could cut his tongue out, feed him to even wacker rappers (death by "biters"), or force him to run laps around the English Channel. There were no limits to his power. Now, though, no president can just haphazardly decide to cut out a wack rapper's tongue for spitting weak lyrics. In fact, the president can't inflict any punishment whatsoever. That whole function has been removed from his office. The president's prosecutor--the Attorney General--gets to charge and prosecute certain federal crimes, but, since Congress hasn't passed a law against wackness, there's no crime to be charged with. So, that also means that police can't arrest people for being wack, and judges can't sentence them.
Right now, thanks to the rule of law, weak rappers are free to fling their vocal vibrations off our ear drums whenever we get close to them. But, there are a whole lot of unanswered questions. What if Congress tried to crack down on wackness? How would Congress define it? What if the President didn't like how Congress regulates it and decides to do something on his own? What does the Constitution have to say about it all? What roles can rappers and their fans play in the whole process? And, if wackness ends up being regulated according to the "rule of law," who wins and loses?