The United States is a nation formed when the former colonies associated under the Articles of Confederation joined together to form a stronger central government while still ensuring freedom was maintained. All law and government in the US stems this document. All laws, all regulations, all government agencies in their actions must conform to this basic law. Americans are fundamentally free because we live in a country ruled by law and the Constitution.
Or that’s what you learn in high school civics class anyway. Conservatives believe a surprisingly literal version of this. Liberals believe a more flexible version of this- an extremely flexible version of this, flexibility not seen even in exotic dancers in Bangkok.
So who is right? Liberals aren’t exactly right- if something is so flexible that it means anything, it means nothing, and yet their rationalization of leftist rule provides an understanding of how it works.
First, the traditional basis of Anglo-Saxon law is common law. Stretching back into the mists of time are court decisions, based on certain traditional abstract principles, that determine what the law is. Given any situation, a judge can look over this body of decisions and decide what legal principles apply. The law has been, and continues to be, constantly refined, with judges continously defining and redefining what the law is.
The propaganda of this is that unlike the rigidity of a statute, the judge can decide what’s right and avoid injustice. The obvious hole in this is that the judge has a great deal of arbitrary power.
Another part of this is concept of equity. In times long past “equity” was separate from “law” and had its own court system, but in the US the two have been merged. The concept of equity is that the judge can apply “natural justice” if application of the common law would lead to an unconscionable result. This created a complicated system with many moves and counter-moves, making lawyers a more prominent, powerful and affluent part of society in England than any other civilized country.
Charles Dickens attacked this system in the novel Bleak House, where litigation over an estate takes years and eventually the entire estate is consumed by legal fees.
So you don’t even need to get to the US to have a legal system that is not based on fixed principles, but is arbitrary and shifting, based on what is considered “right”- which is of course what is considered right by the urban bourgeoise that make up the legal system. But it gets worse.
If you’re going to talk about something, describe it, teach it, and promote it, it helps to have a theory. One prominent and mainstream theory of law is legal realism, which takes this a step further by not only stating that law, while based on certain principles, must be adapted to the specific situation, but by denying that it is possible to have any fixed principles at all, because humans are necessarily arbitrary. Since the law isn’t really anything fixed, it should be used to get desirable social outcomes.
This is just capital “P” Progressive and New Deal thinking, about as controversial among lawyers, legal scholars, judges, and law school professors as a bowl of oatmeal. You can see then how silly some Tea Party type earnestly stating that the Constitution prohibits this or does not permit that. Silly rabbit! Legal interpretation is for the bourgeois elite!
Being as dull, middle class, Protestant, and white bread as it is, legal realism actually isn’t the real essence of legal thought any more. It has been replaced by critical legal studies, inspired by the Frankfurt School. CLS does not merely believe that the law’s and people’s arbitrary natures need to be adjusted to achieve desired social outcomes, but that the law as a product of an evil society is fundamentally used as weapon against women, minorities, homosexuals, and workers. As such the law must be adjusted to resolve injustices against those groups.
As with all things leftist, the fact that it is extremely complicated and its practitioners spend years in school is offered as proof that it is wonderful, sophisticated, and you, the state college graduate, can’t understand it and should just shut the hell up. But all the thick books of virtually incomprehensible verbiage are just smoke.
Leftists don’t always talk about the need for the wise intervention of judges. Sometimes they will say the law is absolute, their hands are tied, there is nothing to do but follow the iron majesty of the law. This is usually in unpopular instances like permitting as much pornography and libel as possible or letting out some gruesome criminal. If they think they can sell it though, it’s always how the law in all its noble justice demands what it is they want at the moment.
There is another aspect to all this, which I can only think to mention here. Fundamentally leftists say the law is what they say it is, and this is unalterable and unassailable. They have another concept, though which while they have used it less and less as they have gained power, is still a critical part of their logic. This is civil disobedience, which states that a person of conscience- of leftist conscience only, of course- should disobey any law he regards as unjust. The effect of this is that when leftists don’t like a law, they disobey it, get arrested, are praised as heroes for spending a few minutes in cuffs, and then a cooperative judge changes it for them.
To summarize, law as a pillar of the system is based on a very simple principle-
-The law is whatever the leftists in power say it is.
With the critical exception that-
-Any law leftists don’t like is null and void.
The system has various pillars, but the final boot on your neck is the law, as developed as a matter of Anglo-Saxon culture over the centuries, and captured by Marxist-Leninists in the 20th. It cannot be controlled, and it cannot be reformed.