That is what every American lawyer feels, or will soon feel, or certainly should feel as they regard the unhinging of the justice system whose constancy is as fundamental to their intellectual grounding as the vestibular mechanics of the inner ear are to their ability to chase after speeding ambulances.
Evidence that we are living in the eye of a perfect legal storm is all around us. A supreme court stacked with ideologues who disdain precedent. An executive that has abducted our body of law and is intent upon tearing the ligaments whose flexibility has ever determined the range of permissibility. Habeus corpus thrown in a pit and murdered, unmourned and unmissed. The prohibition against unreasonable search and seizure surveilled, shanghaied, stripped, garnished, and extraordinarily rendered–all on a warrantless and politically motivated whim. A justice department demoted to little more than a branch of the Republican party campaign call center. A paper tiger legislature whose laws are disparaged as mere suggestions and whose subpoenas are disregarded.
In better times, any one of these trespasses would have precipitated a crisis. In concert, they represent a hazard of millennial proportions.
As yet, not all lawyers have grasped the gravity of the situation. You will be shocked to learn, dear reader, that lawyers exhibit many of the same foibles and weaknesses that bedevil those of us with souls. Some lawyers are highly specialized technicians, perhaps focusing their clinical attentions upon the arcane minutia of corporate law. The legal equivalent of a medical specialist who studies only the transfer of a single hormone between kidney cells, they may show up at work for years blithely unaware that the patient has cancer. Eventually however, those kidney cells will begin to smell a little ripe.
Other attorneys–I must shock again–care for the principles of law only to the extent that doing so helps them line their own pockets. The lion’s share of time in law school is not dedicated to constitutional law and its quaint fixation on individual rights and the balance of powers. Instead, predictably, prospective attorneys labor endlessly to master the law as it relates to a concept even more central to our national character than liberty. I am referring, of course, to money, and how to get it, how it’s taxed, how to leave it to your cats when you die, how long to lock up a white man that steals it, and how much longer than that to lock up a black man that does the same.
Attorneys that absorb these lessons are rewarded with great wealth and enjoy a patrician existence. But seated in the cloistered recesses of their clubrooms after dinner, even the most staid and successful of this breed may espy a faint disturbance roiling the once-placid surface of their Armagnac. For with such subtlety do the seismic tremors that unsettle our legal bedrock announce themselves. He raises one puzzled eyebrow as he regards the snifter. How serious, he wonders, is the reckoning portended by those delicate ripples?
How serious? Imagine how physicists would react if dropped objects ceased to reliably fall. Much as cooks found themselves holding guns at the battle of the bulge, scientists would have an all-hands-on-deck moment. Surely the search for dark matter would seem a lot less urgent than it had only a day before. That is the scale of dislocation that our present course heralds in the legal arena.
You see, like physics, the law is a towering structure painstakingly articulated upon a mere handful of core principles. From its roots in ancient holy texts, through English common law and American legal history, it largely transcends political and social revolution. Even apparent sea changes, like the emphasis on individual rights codified in constitutions inspired by secular humanism, are not entirely radical. Six thousand years after Cain served Abel, our number one law enforcement challenge is still people hitting other people over the head with sticks. So much for progress.
And just as a chess game is less a series of positions than it is a set of rules for change, so the process for amending and enforcing laws is more important to the continuing viability of our society than the specifics of the laws themselves. Confidence in the stability of law enables us to plan for the future. Why would you pay into the Social Security fund if your money was going to be frittered away to compensate for the revenue lost via corporate tax breaks? Why would you join the military if your tour could be extended indefinitely by federal fiat? Why indeed?
The law commands reverence on grounds of its ancient lineage alone. With the presidency hanging in the balance, Al Gore declined to contradict the verdict of the supreme court regarding the 2000 Florida ballot recount rather than cast doubt on the legitimacy of that decision. In 1974, that most politically pugilistic commander-in-chief, Richard Nixon, resigned rather than drag the country into a constitutional crisis over impeachment. Maybe these apparent acts of integrity are motivated less by a sense of fair play than by a primeval terror. We are imprinted with an archetypal memory of a time when The Law was spelled with capital letters and the only Miranda Right you had was the choice of thumb screws or hot pokers. Commanded to enter the tent that housed the holy ark and conduct devotions, Aaron’s brother made a trivial ceremonial error and instantly burst into flame. Perhaps Nixon saw the capitol custodians recharging fire extinguishers and was inspired to decline further confrontation.
Every acknowledgment of the sanctity of the legal process strengthens our society, whether it is you showing up for a court date for unpaid parking tickets or FDR scotching New Deal programs declared unconstitutional by the supreme court. It would be difficult to overstate the economic and social advantages that accrue from our legal stability. Where would American prosperity be today absent the alchemical interplay of our business-friendly legal structure catalyzed by the egalitarian ethos that unleashes so much of our human potential? If you are inclined to take that progress for granted, look around. There are plenty of countries where wealth is still measured in goats and chickens and no public service is too trivial to require a bribe. What’s more, our legal quietude is by no means in a state of self-sustaining equilibrium. Quite the opposite. Like a second-place sports team with overly-optimistic hopes for next season, we humans are always far closer to reverting to brutishness than to realizing a utopia. Every new crack in our constitutional foundation will swiftly be exploited by opportunists who seek to enshrine aberrant notions of the balance of powers, further erode the suddenly ambiguous promise of habeus corpus, or wiretap the phones of their political enemies.
So what are the President and his sage counselors trying to accomplish? All of them understand how the law works, either because they have been to law school or have had the personal pleasure of being indicted. So clearly they must have a plan. Most logically, we might assume they are trying to stretch the sinews of our legal structure to extremes in order to alter our frame of reference. Like yoga for the law (but without the serenity) they hope to make the system so limber that what would once have seemed beyond its range of motion will suddenly be within easy reach. If we once deny the right of habeus corpus to accused criminals, then offering them some niggardly trappings of due process will seem positively munificent by comparison. If we can turn the Department of Justice into a branch office of the Republican party, then an Attorney General who demonstrates something less than utter subservience to the Executive can be accounted democracy’s zealous steward.
But if these were the administration’s motives, legal professionals would be unruffled. Such Machiavellian cynicism is the air they breathe, the perfumed water in which they bathe, the brier patch in which they are at peace. It takes considerably more than that to horrify a lawyer.
No, what they have seen is something that turns the stomachs of all but the most irredeemably jaded of their profession. Not the body of the law engaged in a salubrious if rigorous routine of calisthenics, but one dragged into the Vice President’s office to be beaten with baseball bats. They’ve watched Dick Cheney deliver blow upon frenzied blow, droplets of sweat spraying from his swollen apoplectic face as the shock of each blast echos through his limbs. Though the law does not resist, the ferocity of the assault escalates. Alberto Gonzalez presses the unsigned authorization for the euphemistically-named terrorist surveillance program into the limp hand of the heavily-sedated John Ashcroft. The vice president’s office refuses to turn documents over to Congress, denying its kinship with the executive branch. The Justice Department circulates secret memos approving specific methods of torture explicitly prohibited by laws passed by the congress and signed by the president. The President signs bills into law and then issues signing statements excepting himself from their execution. U.S. Attorneys are dismissed for declining to fabricate grounds for indicting Democrats, or to short-circuit ongoing prosecutions of Republicans. GSA chief Lurita Doan mobilizes her non-partisan agency in the service of the Republican party.
Blow after blow. Until the law is no more than a disarticulated bag of gristle and meat, wrists limp on arms, arms limp on shoulders. Cheney, Addington and Gonzalez drop their clubs and stagger to collapse in chairs, panting from the exertion, sweat soaking their suit jackets.
Professional detachment deserts the lawyers who observe. Most look dazed and baffled. Some are physically ill. There is one frozen in the act of taking a bite of a pretzel.
They wait, expectant. Surely, the congress or the courts will rush to the rescue? But the congress is neutered and the courts are stacked. What about the media or the populace? They are disinterested, uncomprehending, or simply frightened into submissiveness. Perhaps God himself will take note, and law’s murderers will be consumed in a sudden flash of immolating fire?
But nothing happens. Galileo drops his ball, but it just hangs in the air.