Liberty, Prudence, Imperfection, and Law

“The Pride of Harvard Law,” By Bruce Frohnen

“PikiWiki Israel 31008 People of Israel” by udi Steinwell Pikiwiki Israel. Licensed under CC BY 2.5 via Wikimedia Commons.

It appears that President Obama will be releasing Jonathan Pollard from jail. Pollard is the American citizen convicted of spying on the United States, selling a vast amount of highly sensitive material to Israel. Often spun as a case of misguided actions motivated by concern for Israel, Pollard’s case involved his attempting to sell information to other foreign governments, furthering his wife’s business interests through his spying, and possibly the sale of classified information to South Africa and Pakistan as well as Israel. Pollard becomes eligible for parole later this year. This is a good thing, too, from Obama’s perspective, because now he has something to “give” the Israelis as a consolation prize after the administration’s nuclear giveaway to Iran.

Of course, Obama has engaged in other such trades. There was, after all, the swap for deserter Bowe Bergdahl, who was returned to the welcoming arms of the US military—and a pot farm in California which he visited while on leave from being under arrest, only to be picked up, then released, by authorities. Bergdahl got his freedom in exchange for five of the most dangerous Taliban terrorists in American custody.

This is not to say that Obama sees spies, traitors, or even terrorists as mere bargaining chips. He is not asking for anything in exchange for emptying the prison in Guantanamo Bay, Cuba. He merely wishes to return terrorists resident there to their various homes, home-bases, and safe houses in exchange for the ability to close down the prison. The terrorists get to go back to work, and Obama gets to shut down the place keeping them from going back to work. Win-win, right? It may seem odd, then, that Obama did not feel moved to try to get American prisoners back from Islamic terror states, such as, say, Iran, as part of the one-sided negotiations over that nation’s nuclear program.

Then again, it is not so terribly odd that Obama would privilege those in American prisons over Americans in other nations’ prisons. It is a matter of justice, you see, and for this administration, justice is on the side of those breaking American law, not those Americans thrown in foreign prisons for such heinous acts as being Christians.

The logic behind Obama’s prisoner policies is deeply rooted in the belief that those held prisoner by the United States probably are there unjustly, whereas Americans held prisoner elsewhere have only themselves to blame. It should be no surprise, then, that Obama was the first sitting president to visit a federal prison. No doubt his defenders will point out the obvious fact that American prisons are overcrowded, dangerous, and nasty places. These defenders even have a bit of truth on their side, as they would in pointing out that the many convicted drug offenders Obama has let out of jail may have been given sentences too long to be proportionate with their crimes. The same was true prior to the last wave of “prison reform” that addressed issues of guard brutality by essentially locking guards out of prison yards and institutionalizing today’s war of all against all behind bars, with all its horrific results. And it remains astonishing that so little has been said about this president’s habitual denigration of law, our legal system, and the people who protect the rest of us from lawbreakers, while persistently “speaking out” in defense of lawbreaking, law breakers, and even violent acts putatively in protest of “the system.”

There is a logic to Obama’s position, of course, and one that helps explain the increasing violence in our society over the last few years. A proud graduate of the Harvard Law School, Obama has fully assimilated lessons taught there about the nature of law as mere power and the duty of elites to help free (or keep from deportation) those who commit crimes and “empower” aggrieved groups to engage in illegal conduct intended to bring down existing laws, customs, and institutions. All the talk of “institutionalized racism” we have been hearing in the mainstream press for some time now is merely the latest, most potent outgrowth of an ideology that long ago took over our universities, and elite law schools in particular. From the Critical Legal Studies movement to the mainstream teachers of criminal and constitutional law, there has developed a persistent party line according to which law is simply the will of the stronger, used to keep the weaker in line, in poverty, and chained to an unjust, discriminatory system.

As Richard Weaver pointed out decades ago, ideas have consequences. In this case, the idea that law is merely a tool used by those with power to serve their own will has fostered the view that law-abidingness is no virtue, hence we should support those who support the “correct” causes and fight those who support the wrong ones, regardless of their conduct in relation to established laws. Indeed, the ideology of grievance has been extended to cover violence itself, excusing those who harm other people if this is done in opposition to the corrupt American system, while it leaves defenseless those whose conduct (e.g., converting to Christianity in Iran) may be seen as supporting America’s corrupt system.

The inconsistencies, twisted logic, and outright falsehoods intrinsic to this vision are too numerous to mention and, in an important sense, beside the point. Obama has shown time and again in signing executive orders decreeing that some laws not be enforced (e.g., immigration) and that others be changed in their fundamantals or expanded beyond any possible link to their source legislation (e.g., Obamacare and expanded regulations issued by the Environmental Protection Agency) that he has no intrinsic respect for law. All that matters, in his eyes, is that the right result, meaning the result most in keeping with his own ideology, be achieved. It may be unfair, given recent decisions by the US Supreme Court showing open contempt for the clear language, intent, and meaning of constitutional language regarding marriage, commerce, and civil rights, to subject Obama to special criticism. But, then, my point is that he embodies and is further entrenching a toxic view of law already deeply embedded among our elites.

We currently are ruled by a president who believes his favored policies are so intrinsically and obviously good that opposition must be pushed aside, even when it is the opposition of Congress or even the courts. This should not surprise anyone. For decades, now, our elites have encouraged lawyers, politicians, and regular citizens to treat the law as something to be followed, twisted, or thrust aside according to how well it serves our own conception of justice. The problem is that, when we only obey our own sense of justice, we undermine the habits of law-abidingness and with them the ability of our society to function free from violence.

There is an old story of a bloody tyrant who heard about an old woman who prayed every day for his safety. Confused (for in those days tyrants at least recognized their own selfishness) he had the old woman brought to him and asked her why she prayed for his health. The old woman replied that many years ago she had prayed for a previous tyrant to be overthrown. When he was overthrown, however, he was only replaced by a worse tyrant. She prayed that the second tyrant also would be overthrown, and that was how the current, even worse tyrant came to power. Now, the old woman said, she was not only content but desperate to see the tyrant she knew retain power, lest an even worse one succeed him.

This is no brief for tyrants any more than it is an excuse for racism, police brutality, or any other of the numerous flaws and injustices in our (indeed, in every) legal and political system. But America currently is experiencing a taste of rule without law. And the taste is bitter. It includes riots, random violence, and a contempt for the lives of innocents that terrifies and enervates the soul. Perhaps most dangerous, here, the cries of institutional injustice aim, not to correct abuses, but rather to uproot the very assumptions and traditions necessary for law to rule more through custom and consensus than through threat of violence. They move us toward a system in which law really is merely the will of the stronger, in which none of us can be confident that those who make and enforce the law will have the common good in mind when making or enforcing them. Lacking such basic trust, we will revert to a proverbial war of all against all, kept in check only by the self-interested actions of an ideologized ruling elite. Then, the prisoners may be the lucky ones.


Bruce P. Frohnen is Professor of Law at The Ohio Northern University Pettit College of Law.

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