TERROR FART SHUTS SEVENTH AVENUE : PANIC IN NEW YORK

NEWS FLASH

Reason, Commerce, Justice and Free Beer has just learned that authorities in New York shut down a major city thoroughfare after a Muslim allegedly farted.

Details remain sketchy. It is not known who farted, nor whether the fart constituted "use of weapons of mass destruction" under applicable federal anti-terror laws. It is not even known whether the fart caused any appreciable damage to the surrounding area.

Nonetheless, officials are not taking any chances. Deputy NYPD Police Commissioner B. Leonard Pfurzfinder called the alleged terror fart a "serious attempt" to sow chaos in New York. He warned the public to "keep your eyes and noses open for flatulating Muslims."

Mr. Pfurzfinder gave a press conference shortly after the incident: "I wish to confirm that the Police Department--in cooperation with State and federal law enforcement--have closed Seventh Avenue following the reported emission of terrorist intestinal gas near 35th Street. At approximately 7:45 AM today, a woman named Cathleen Summers passed a man with a long black beard wearing a skull cap and a long white gown. According to Ms. Summers, 'he looked like Osama bin Laden.' As she passed the man at the intersection of Seventh Avenue and 35th Street, Ms. Summers heard a very loud noise. 'It was definitely a fart,' she said. Within a moment following the noise, Ms. Summers also smelled a rancid odor in her vicinity. 'It must have come from the fart,' she told responding officers. She also mentioned that pedestrians gasped in horror when they smelled the fart; they fled in all directions. Pandemonium ensued. One man collapsed from inhaling the fumes. Another man said the 'sound of the fart' broke his iPad® digital reading device. Ms. Summers also reported that the bearded man did not panic after the fart; he surreptitiously moved away down 35th Street."

Mr. Pfurzfinder continued: "We are fortunate that no fatalities resulted from the fart. But we cannot let our guard down. Considering the evidence before us, we must conclude that this fart constitutes a serious terrorist attack on American soil. True, the fart did not cause much damage. But it shows that there are men who look like Osama bin Laden in the United States who can emit toxic odors. Worse, it shows that men with beards and white gowns can infiltrate major American cities, eat gas-producing foods and subject everyday Americans to deadly flatulence. We can be glad that no Americans died in this brazen gas assault on New York City. But we must painfully acknowledge that the War on Terror--especially gaseous fart terror--is far from over."

Mr. Pfurzfinder stressed that Americans must do their part to battle terrorism in all its forms: "We salute Ms. Summers for immediately calling authorities after she heard and smelled the enemy fart. And we also salute Ms. Summers for recognizing that suspicious activity is not always visible. In fact, terrorism does not just affect the eyes; it affects all the senses. Since 2001, the NYPD has admonished New Yorkers to report suspicious activity with the slogan: 'See something; say something.' But that admonishment does not encompass all possible terrorist threats. Terror does not limit itself to visible phenomena. As this case shows, terror can be heard and smelled, too. In that light, we hereby modify our slogan to include all the senses: 'See something, hear something, smell something, taste something or feel something--say something.' Although we recognize that some New Yorkers may report things that do not turn out to be terror threats, we believe that the extra caution is worth it. An old woman, for instance, may feel a spider crawling on her neck while she sleeps. She may believe she is under tactile terrorist attack. She might even call police, wailing: "I felt something, so I'm saying something." Yet fielding a few misguided 911 calls is a small price to pay to avoid another 9/11."

Concerning the general terrorist threat level, Mr. Pfuzfinder elaborated: "We are on edge. Within the last two weeks, Muslim agents have tried to blow up Times Square. In the ensuing days, authorities closed down Times Square several times after citizens reported 'suspicious packages' on various street corners. Those packages turned out to contain ham sandwiches, bottled water and cheap novels; but the threat remains. It remains true that Muslims want to kill us. Today's fart incident represents yet another attempt to target America this month. We are in the crosshairs. The Muslims not only want to destroy significant targets in spectacular attacks; they also want to wreak panic by dispersing toxic farts among everyday people who just want to get to work in the morning. That is truly terrifying--and we are working to stop it."

Mr. Pfurzfinder did not specify how the NYPD plans to address farting Muslims in the future. Still, Republican lawmakers in Washington, D.C. quickly jumped on the news.

"Today's incident in New York just goes to show that President Obama is not doing enough to stop terror," declared Senator John Cornyn (R-TX). "This is the price we pay for the President's misguided decision to 'understand' Muslims. We cannot afford to understand these people. They want choke us on the nastiest farts you can possibly imagine. We cannot have a 'dialogue' with people who are out to drown us in farts. Put simply, we need to stop talking and start attacking Pakistan, which is where this fart guy is probably from. If we don't, the next fart is going to really hurt somebody."

Senator Lindsey Graham (R-SC) echoed Mr. Cornyn's call for increased action against Pakistan. "I have it from reliable sources that al-Qaeda is training operatives to produce massive amounts of flatulence in their own bodies. They call it 'the natural approach.' CIA infiltrators have shown me shocking pictures of masked men sitting in desert training camps eating goat cheese, falafel, kebab and raw onions in terrifying amounts. We are blind to the truth if we assume that this New York fart suspect did not receive al-Qaeda digestive terror training in Pakistan. That is why we must attack Pakistan now. I refuse to see a single American killed by a fart we could have prevented."

In a statement on the issue, Texas Senator Kay Bailey Hutchison (R-TX) shied away from foreign policy assertions. "No matter what we do abroad, I say we need better domestic legislation to punish Muslims who fart. I have already drawn up a draft bill that expands the definition of 'weapons of mass destruction' to include 'the intentional, reckless, negligent or inadvertent expulsion of intestinal gas by a person who is a Muslim, however slight or inaudible.' Ignorance is no defense. I define 'Muslim' as 'any person not a Christian' or 'any person with a suspicious looking beard, unless he is from Texas; but such exception does not apply to African-Americans with beards, or any female, regardless of State residence or race.' If we enforce this law, we will bring digestive terrorists to justice and protect Americans."

President Obama's Attorney General--Eric H. Holder, Jr.--urged a more circumspect approach to the Muslim fart menace. "Our investigation into this matter has just begun. We still need to determine whether the man who farted did so with terroristic intent. This is a legal inquiry: Only farts expelled with a specific intent to terrorize are currently forbidden under existing law. This administration is committed to law. We refuse to indulge speculation. We also refuse to yield to public hysteria surrounding the incident. Until we have reliable evidence, we cannot commit to prosecuting this suspect as a terrorist. For the moment, he is simply a 'person of interest' who farted on Seventh Avenue on May 17, 2010. We understand that our approach may disappoint those who assume all Muslim farts to be terror farts. But respect for the rule of law--and for basic fairness in the administration of justice--dictates that we assemble all the facts before we conclude that digestive terror occurred in New York today."

Rush Limbaugh denounced Holder's statement as "rubbish:" "When a Muslim farts, it's terror. I don't give a shit what the law says."

New York's Mayor Michael R. Bloomberg emphasized that Muslim farting is not good for the city economy. "The thing that upsets me most is that this fart closed down Seventh Avenue. There are a lot of really big stores and businesses on Seventh Avenue, including Ernst & Young and roughly 75 Starbucks Coffee houses. This fart caused people to miss work and lose out on pay. It also caused people to refrain from shopping and going to Starbucks. That is not good for New York. So whether or not we conclude that this Muslim emitted a terror fart, he has already terrorized New York's economy. And I don't like it when corporations can't do business."

At present, investigators are searching high and low for the man who allegedly farted near Ms. Summers this morning. Officials expect to reopen Seventh Avenue sometime this afternoon, depending on the FBI's determination that residual Muslim fart fumes have sufficiently dissipated to permit vehicular and pedestrian traffic.

President Obama issued the following statement after receiving word about the incident: "Our hearts go out to the families and to those affected. We will not tolerate digestive terror and we will not shirk our responsibilities. We are a resilient people. No matter how thick the fart cloud that hangs over us, we will persevere."

TEA PARTY PRESIDENTS WILL NOT BE LAW PROFESSORS : CAN LAW GOVERN WAR?

AN ESSAY

Last week, Sarah Palin delivered a speech to the first annual "Tea Party" convention in Nashville. Many listened very closely to her remarks because everyone wants to know what she plans to do with her political future. Love her or hate her, she has found a niche: Semi-factually orating to the semi-intelligent, nativist, government-hating "silent majority" that would not mind seeing President Obama lying in a pool of blood.

Apparently, this "silent majority" has launched a "counter-revolution" called the "Tea Party Movement." From what I understand, its adherents believe that all government is bad. They take their name from the American patriots who revolted against English taxation by destroying royal property in 1773. I suppose that these 21st Century "patriots" share the same hatred for taxation as their 18th Century "brethren."

But that's about all they share. Patriots in the 18th Century fought against legitimate wrongs. They sought to establish a Republic of laws against foreign autocracy. By contrast, these 21st Century "patriots" are not rebelling against a foreign monarch to establish a "more perfect Union." No, they are rebelling against their own government in order to pay fewer taxes and to exclude undesirable immigrants from American shores. They don't want to establish a new government to provide for Justice and "Domestic Tranquility." They basically want to abolish all government so that private business can do whatever the hell it wants.

I don't think James Madison or Thomas Jefferson would have joined this "Tea Party." Their talk about "the Rights of Man" and "equal human dignity" would not have gone over too well with this wetback-hating crowd. And they certainly would not have gone far with arguments about a Constitution. No, Palin's "Tea Party" adherents just want unlimited business license, not an enlightened Bill of Rights.

In sum, then, I gather that the "Tea Party" wants something just above anarchy. They want a "minimalist" government that does not interfere with private wealth or property ownership. They don't want health or welfare regulations, nor do they want intrusive "civil rights" legislation that blocks business opportunity. They want government to maintain an army, protect the borders, guard foreign trade interests, vindicate private contract rights and to prosecute domestic criminals. Beyond that, they do not want government to play a role in public life.

So these are the folks to whom Sarah Palin directed her remarks last week. And what did she say? Not surprisingly, she took vicious swipes at President Obama, who represents everything the "Tea Party" is not: A big-government minority intellectual who eschews military strength and supports high taxes. She lambasted him for failing to keep America safe from terrorism. To make her point, she attacked his intellectual spirit: "To win [this] war, we need a Commander-in-Chief, not a Professor of Law."

In other words, law professors ruminate and dawdle over legal intricacies while Commanders-in-Chief ignore the law and just kick ass. "Tea Party" members don't want the law. They want swashbuckling, extralegal ass kickers.

As much as I personally disagree with Palin's simplistic reasoning on this point, I cannot ignore that she illuminates a popular distinction: She equates law with weakness in war. There are "law professors" and there are "Commanders-in-Chief." Law professors are vacillating cowards who waste time worrying about the law. By contrast, Commanders-in-Chief kick down doors and get the job done, the law be damned.

Sadly, there is a widespread public belief that anyone who follows the law cannot protect the country from terrorism. The "Tea Party" fully endorses this belief. It asserts that the President cannot protect Americans if he insists on following the law--and the Constitution. Rather, according to the "Tea Party," a "strong President"--namely, a "Commander-in-Chief"--will gladly ignore the Constitution in order to "kick terrorist ass."

This is a stunning admission of the law's weakness. After all, if ignoring the law is the only way to win wars, what does that say about the law? Why even bother with it? Wars test States in the harshest possible ways. Yet law is supposed to guide a State through everything. If the law cannot handle war, it cannot handle anything. If the public believes that law is insufficient to win wars, then it rejects law completely. No one trusts weakness; and the "Tea Party" associates law with weakness. In that light, it is no wonder that Palin pejoratively labels President Obama a "law professor." That is the same as calling him a "Professor of Weakness."

But what is the alternative? Who is the fabled "Commander-in-Chief"? What does the "Tea Party" want in a President? Do they want a man who tears up the Constitution and tramples on their rights as citizens? Do they want a man who ignores international treaties and indefinitely imprisons people without cause or charge? Do they want a man who tortures others? Do they want a military State? Well, that is the opposite of law. And if law is weakness, maybe they do. After all, terrorists exploit weakness. It's better to be strong than weak, no matter how much liberty you must surrender, right?

I say no. It is dangerous to associate law with weakness because our law exists to govern all contingencies, including war. Our Constitution creates the term "Commander-in-Chief." See U.S. Const., Art. II § 2, cl. 1. There is no fanciful distinction between "law professors" and "Commanders-in-Chief." If anything, the "Commander-in-Chief" owes his existence to the Constitution--and the Constitution symbolizes life under law. In this sense, "Commander-in-Chief" is a legal term. The "Commander-in-Chief" plays a specific constitutional role under law. According to the Constitution, the President manages war within the law. He even takes an oath to support the Constitution. See Art. II § 1, cl. 8. Textually speaking, then, the President's first duty is to the law, not to kicking ass.

Ms. Palin did not know that. But then again, she does not know a lot of things.

Law is not weakness. If anything, it symbolizes our strength as a State. In the United States, law stands for something better than mere brute force. We enshrine our deepest values in law. Through law, we guarantee personal liberties and rights. Through law, we define the parameters by which government acts. We insist on law because the law protects us. If war suddenly entitles government to ignore the law, we have lost our protection. And it is no accident that our Constitution provides for war. Our Framers knew that war often provides an excuse to ignore law. That is why they demanded that the law remain intact, even in war. By defending law even in war, we affirm ourselves our own strength as a State--and our own rights as individuals.

Yet the "Tea Party" would have us believe that war trumps law. It even mocks a President who commits himself to following the law to govern war. This is extremely troubling. After all, the President has an institutional duty to follow the Constitution. By observing the law, the President is not betraying the people; he is doing his constitutional job. This is not weakness. If anything, it is strength.

Still, it is hard for the semi-intelligent (and sub-intelligent) masses to understand the value in defending law. To them, kicking ass seems a much more satisfying governmental option than according Due Process rights to prisoners and fretting over procedures. But if they only knew that fretting over procedures keeps everyone free. Perhaps then they would understand that there is value in defending law. After all, once the law falls in one case, everyone is vulnerable, not just the ne'er-do-wells rotting at Guantanamo Prison.

For my part, I feel safer knowing a law professor is guarding the Constitution than some "Tea Party" fanatic who would gladly take a dump on my rights simply because he says there's a "war on" somewhere.

But I'm unusual. Most Americans don't mind when authorities shit on their rights, as long as they can keep shopping in peace. That's why they might join the "Tea Party," and I won't.

STARE DECISIS, SHMARE DECISIS : WHY THE SUPREME COURT'S RECENT CORPORATE ELECTION SPENDING CASE IS ALL WRONG

AN ESSAY

PART 2

Yesterday I wrote to explain how the Supreme Court erred in its recent decision granting corporations unlimited freedom to make "independent expenditures" that advocate for Federal election candidates: Citizens United v. Federal Election Commission, 558 U.S. __(2010)(slip op.). I confined my analysis to the assertion that Congress had good reason to restrict corporations' ability to distort public debate by buying up all the airtime around elections. See, e.g., 2 U.S.C. § 441(b). I noted that according full First Amendment protection to corporations makes it difficult for individuals to voice their First Amendment rights. I also lamented the Court's decision to overrule an earlier case that concluded the same things: Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990).

Today I continue my analysis on a new point: The Court's utterly hypocritical "commitment" to the legal doctrine "stare decisis." In my view, the Court overrules prior cases when its membership changes, not because monumental social changes render prior decisions "unworkable" or "anachronistic." Citizens United affirms my cynicism on this issue: The fact that both men (Republicans) who voted against Austin in 1990 now vote to overrule it in 2010 says it clearly enough. This is not about policy. It is about politics.

Stare decisis is a judicial custom in common law countries like Great Britain and the United States. In Latin, it means "stand by the decision." Its technical legal meaning does not differ much. It admonishes judges to decide cases according to principles announced in similar past cases. When an older case provides an answer to a question, stare decisis obligates judges to provide the same answer in a case raising the same question. In practice, stare decisis reinforces respect for the judicial system because it informs citizens how judges will rule in particular circumstances. It also reinforces respect for the so-called "rule of law" in society: The idea that power flows from neutral legal principles, not men's individual caprice.

Yet everyone agrees that stare decisis is not the right policy in every circumstance. It makes no sense to follow ancient cases to resolve modern dilemmas. After all, if judges strictly observed stare decisis in every case, we would still live under cases like Plessy v. Ferguson, 163 U.S. 537 (1896), the infamous decision that permitted legal racial segregation in 1896. Everyone knows that Brown v. Board of Education, 347 U.S. 483 (1954), overruled Plessy in 1954. The Supreme Court refused to follow stare decisis in that case; and for good reason. Plessy did not make sense any more. It could not be reconciled with constitutional liberty and equality principles. And society had changed in fundamental ways between 1896 and 1954. Those considerations all warranted abandoning stare decisis to overrule the past decision: By 1954, Plessy had degenerated into a pernicious historical "anachronism."

But the Court wanders into extremely dangerous territory when it overrules cases on less compelling grounds. Stare decisis is the rule, not the exception. And when the Supreme Court overrules cases every few years simply because its membership changes, it inflicts the damage that stare decisis is intended to avoid: The cynical public perception that the Court is not committed to law and constitutional principle, but rather to politics and raw power.

Politics and raw power certainly won the day in Citizens United. I have long been cynical about the Supreme Court and its increasingly mordant, political tone. I have long known that its current conservative majority will not "stand by decisions" it does not like. Yet it will certainly "stand by decisions" that match its political colors. That is why it does not surprise me that it lightly overruled Austin on the corporate election funding question, even though people do not view that question much differently today than they did in 1990. If anything, the reasons that justified Austin's hostility toward corporate political power are more compelling today than they were then.

Justice Kennedy knows this all too well. After all, none other than Justice Kennedy sang a sweeping ode to stare decisis just eighteen years ago in the case that saved abortion rights: Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). It was Justice Kennedy who signed on to this formula for stare decisis: "[W]hen this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case." Id. at 854-855. Sounds like he takes stare decisis pretty seriously, doesn't it?

You have no idea how seriously. Justice Kennedy even approved four detailed factors to determine whether it would "undermine the rule of law" to overrule a prior constitutional case: "[W]e may ask whether (1) the rule has proved intolerable simply in defying practical workability, whether (2) the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation, whether (3) related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, or whether (4) facts have so changed or come to be seen so differently, as to have robbed the old rule of significant application or justification." Casey, 505 U.S. 833, 855 (enumeration and emphasis added).

In Casey, the Court spent many painstaking pages applying the four stare decisis factors. Justice Kennedy joined the analysis in full. He thought it would "undermine the rule of law" to overrule Roe v. Wade, 410 U.S. 110 (1973), just nineteen years after the Court decided it. In sum, Justice Kennedy doggedly defended stare decisis in Casey. He voted to "stand by" the decision.

But where was that doggedness in Citizens United? And what happened to the delicate, detailed stare decisis factors that guided Justice Kennedy's analysis in Casey? They are nowhere to be found. Rather, Justice Kennedy employs a much more nebulous stare decisis test in Citizens United: "Beyond workability, the relevant factors in deciding whether to adhere to the principle of stare decisis include the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned." Citizens United, 558 U.S. __ (slip op. at 47)(emphasis added).

What the hell does "well reasoned" mean? What possible objective guidance does that factor provide? It is no surprise that the Court in Casey did not employ a "well reasoned" test in deciding whether to overrule Roe v. Wade. If it had, it would have merely invited the Justices to import their own political sensibilities to determine whether to overrule it. Yet that is Justice Kennedy's test in deciding whether to overrule a 20-year-old precedent about the integrity of American democracy. And with a standard like "well reasoned," you know how it came out.

I find it significant that Justice Kennedy changed his own standards to overrule Austin. After all, if he had applied the painstaking stare decisis factors he endorsed in Casey, he would not have reached the same conclusion. In Austin, the Court held that restrictions on corporate "independent expenditures" advocating Federal candidates were justified in order to curb "corruption and the appearance of corruption," as well as to curtail the disproportionate influence that "immense aggregations of wealth" wield upon the American political process. Austin, 494 U.S. 659-660.

Under the Casey standard for stare decisis, I do not see how this rule has become "unworkable." For generations now, corporations have learned to cope with campaign financing restrictions. They know they have to create "political action committees" in order to advertise for candidates they like. This satisfies Casey's "practical workability" factor.

Second, the American public has placed reliance on Austin's rule. Americans understand that corporations project enormous power in government; and most Americans rightly worry that corporations' financial advantages grant them unfair political leverage. Congress' corporate campaign funding restrictions assured the American people that the law acts to "prevent corruption" in the political process and to curtail the "corrosive" effects of "immense aggregations of wealth" on elections. In this sense, Austin's rule satisfies Casey's "reliance" factor.

Third, the law has not substantially changed on the corporate political speech question since 1990. Not much can happen in constitutional law over such a short period. Constitutional developments take decades. Historically, they coincide with social upheaval. Social changes in American society rewrote the law when the Court overruled Plessy v. Ferguson in 1954. Sixty years, two world wars, a Depression and an atomic bomb had intervened to completely change the way Americans viewed the world. Against that backdrop, it is not surprising that the Court changed the law to keep up.

It is facetious to argue that such monumental social and legal changes have occurred in American society since 1990. In fact, Americans expect government to act against corporate overreaching. By overruling Austin's rule on this point, the Court completely ignores Casey's third factor concerning "fundamental legal change." That is why Justice Kennedy did not even mention this factor in his opinion. See Citizens United, 558 U.S. __(2010)(slip op. at 47).

Fourth, all the facts that supported Austin remain as true today as they did in 1990. Austin posited that restrictions on corporate speech were necessary to prevent corruption and unfairness in the American political process engendered by "massive aggregations of corporate wealth." Those facts formed the basis for the decision. Congress proceeded on those facts when it enacted the corporate campaign finance law.

If anything, those facts are even more true today. There is a rampant public perception that corporate wealth skews political transparency. Cynicism dominates rhetoric about corporate interference in politics. Austin fulfilled Casey's fourth factor on this point: Facts about corporate political spending have not "so changed or become so different as to have robbed [Austin's] rule of significant application or justification." Casey, 505 U.S. 833, 855. Put succinctly, those facts have not changed at all.

Again, it is hardly surprising that Justice Kennedy did not list the "factual change" factor in his Citizens United analysis. Instead, he merely invents a new standard: Whether the prior case was "well reasoned." See Citizens United, 558 U.S. __(2010)(slip op. 47). After all, if he had applied his own test from 1992, he could not in good faith have argued that "facts about corporate influence on politics" have significantly changed in twenty years. So he just ignored what he said in 1992 and made up something else.

See how easy it is to be a Supreme Court justice? You don't even have to stick to what you said before. You can just make things up as you go--as long as you get five votes on it.

But this is all very sad. After all, stare decisis exists to preserve public faith in our Judiciary. If the public sees--as it must now--that the Court willingly discards recent precedent simply because Republicans have more seats than Democrats, it will conclude that the Court is no better than Congress. Yet the Court is supposed to be our "independent branch," an erudite institution that rules on lasting constitutional principle, not casual politics. When the Court coarsely disregards recent precedent--especially on explosive political issues like election control--it sullies itself in ways that are difficult to repair. When the Court acts like this, it invites the same dismissive cynicism that the public usually reserves for elected officials. Principle means nothing. The Court just devolves into another political battleground.

And shame on Justice Kennedy. His hypocrisy has reached epic levels. He does not even apply his own lofty rhetoric about stare decisis. Rather, he abandons it the moment he encounters a case with which he "disagrees." He dissented in Austin twenty years ago. Then he joined an opinion that passionately defended stare decisis two years later. On that basis, one might think he would think twice about lightly overruling recent cases. But instead he overruled Austin without even using the grandiose stare decisis test he so forcefully advocated in Casey. This time, he did not even spend three pages dismissing stare decisis.

He really must not have liked Austin.

Apparently, our Constitution now functions according to a new test: Whether Justice Kennedy likes a case. Thankfully for him, he has four guys who will stand with him in most situations. And all you need is five.

JUSTICE SCALIA EXPLAINS : "NOBODY TORTURED ME LAST WEEK"

By : Mr. Antonin G. Scalia, Associate Justice, United States Supreme Court (Appointed by President Ronald Reagan 1986); Law Professor, University of Chicago (1977-1982); Annual Hero of the Federalist Society (2007); Defender of 21st Century constitutional liberty by reference to 18th Century grammar; Founder, the Justice Antonin Scalia Institute for Insulting, Degrading and Denigrating Your Professional Colleagues (Pursuant to Law and Ethics Rules, Common Decency Notwithstanding) (2008-present).

You may have heard that government agents took me into custody last week and subjected me to interrogation. For some odd reason, senior officials in our intelligence community obtained information linking me to an al-Qaeda plot to poison children’s lunches in Washington, D.C. public schools. During my custody, I was asked many questions. Since then, the wildest rumors have been circulating about it. Today I write to put these rumors to rest. Put simply, I am fine. A little tired, yes, but otherwise fine.

Nobody tortured me last week. Rather, agents from the Department of Homeland Security, the CIA and the FBI came to my home last week and informed me that they had “information” linking me to a terror plot. I responded that this was nonsense. The agents ignored my response. They told me they had to “take me into custody” to ask further questions. They said that “the safety of American children” was at stake. It angered me that someone provided false information linking me to a conspiracy to kill children. But I did not blame the officers for arresting me. After all, they were merely acting to protect American children. What did they know? They had to get the truth. If I had to suffer temporary incarceration to dispel their suspicions, I was prepared to pay that price for living in a democracy committed to safety for all.

After surrendering to the agents, they handcuffed me and put a black hood over my head. I remember being pushed into an automobile, then an airplane. The airplane took off. We were airborne for what seemed an eternity. No one spoke during the flight. When we finally landed, I was led down from the plane. I heard the agents speaking. Men answered them in a foreign language. I think it was Polish or Bulgarian, but I do not know for sure. It was Slavic, but I don’t think it was Russian. I was put into another car. I no longer heard the American agents. Now, I only heard Slavic voices.

We stopped after driving about two hours. At this point, I was taken from the car. Someone finally took the hood off my head and uncuffed me. It was early morning. I looked around. I was in a forest near an old concrete bunker. There were several trucks and jeeps parked outside the bunker. About fifteen armed men wearing green uniforms milled around the bunker entrance. I had no idea what they were saying. My eyes hurt; I could not look directly into the light because they were still sensitive. I had not slept during the whole trip. After about a minute, two soldiers with slung rifles approached me and said in accented English: “Come with us. We have some questions to ask you.”

I was taken into the bunker. A stairway led about two stories underground. There was a long hallway with steel doors lining either side. Lamps hung overhead, casting a pale white glow from above. The soldiers opened a door on the left and pushed me in. It was a large room. It smelled musty, as if there was not enough ventilation. There was a single steel table in the middle of the room, with a chair on either side. A few old-looking file cabinets stood against each wall. There was a small door at the back of the room.

“Wait here,” said one of the soldiers. “Make yourself comfortable,” he added, pointing to the chair. I sat down. The soldiers left the room. They closed the heavy steel door and locked it behind them. I sat alone for several hours. There was no bathroom and I desperately needed to relieve myself, since I had no opportunity to do so during my journey up to this point. Finally, I had to relieve myself on the floor.

Several more hours passed. I could not sleep. The chair was too uncomfortable. Strange, scattered thoughts started racing through my head. I started fixating on the bright fluorescent lights that lined the ceiling above me. They buzzed incessantly. One even flickered a little. I started scratching my head and staring at the flickering light. I wanted desperately to sleep but I couldn’t close my eyes for more than a second. I started pitying myself and cursing the whole situation. After all, I hadn’t done anything. But I immediately caught myself: “No, you have to go through this to protect the children.” Even though I was innocent, I willingly absorbed my adversity because I knew our agents had to protect Americans from terror.

Finally, the door in the back of the room creaked open. Two officers came into the room. I looked up at them. One of the officers held a file folder. The other one held a rusty steel device that looked like a leg brace. It had screws on either side and two jagged-looking “jaws.” A moment later, two soldiers came into the room with rifles. After them, another man came into the room. He was black. He was not wearing a green uniform. He looked American; the others did not. He closed the door behind him. The two officers looked back at him. “Are you ready, sir?” They asked. “Yes. Go ahead,” he responded. By his voice, I knew he was American.

“Well, Antonin,” began the officer in accented English, setting his file folder onto the table. “We can make this as easy or as difficult as you want. We know you’ve been speaking to al-Rahwiri.”

“I don’t know what this is all about,” I responded. “You obviously don’t have the right man here.”

The officer looked at me blankly. Then he turned to the other officer and gestured with his head toward the table. The other officer threw the steel device onto the table. “You were saying?” He paused, then continued: “There is no point lying to us. We know you spoke to al-Rahwiri. We know about the D.C. school district. We know you discussed cyanide with him.”

“I don’t know where you got that information, but it can’t be accurate.”

“Antonin, I don’t want to be a bad guy with you. Just tell us you plotted to kill the kids in D.C. and you can go home. If you don’t confess, this is not going to be a good day for you. Please, be easy on yourself. There’s no way out of this. I know you think you’re smart and you know about constitutional law. You think you have rights, even though you routinely deny them to others. Look, don’t be hard on yourself. Just tell us you know about the plot, then we can start talking like two civilized human beings.”

“I’m sorry, but I can’t admit to that. It’s just not true. And I will not be coerced into saying otherwise.”

“All right. Have it your way.” The officer gestured to the two soldiers, who violently restrained me. Meanwhile, the second officer picked up the metal device and dangled it in front of my face. The two soldiers strapped me to my chair with ropes. The second officer pushed the chair away from the table and grabbed my right arm. Although I tried to struggle, he placed my right thumb into a slot on the metal device. He started screwing the two jagged “jaws” together around the thumb.

At this point, I was mildly alarmed. The two jaws met around my thumb and slowly crushed it. I could literally feel the bone shattering inside my hand. It hurt quite a lot, but it was bearable. I knew that the officers were simply trying to protect children from terrorists, and that justified my physical suffering. The jaws continued to press together until my thumb was virtually squashed. But I did not cry out, nor did I confess. After all, I hadn’t done anything.

“Why don’t you just say you talked to al-Rahwiri?” asked the officer.

“Because I never talked to him,” I responded despite the bearable pain.

“Well, I don’t believe you,” the officer replied. He then turned to the American behind him. The American nodded and pointed toward a file cabinet. The officer nodded. He said something to the soldiers in his language. They let me go. They opened the file cabinet and removed what looked like garden shears. Then the second officer slowly unscrewed the device from my thumb. I did not have much of a thumb left, but I was managing well.

“Now, Antonin. You can’t hold out forever. You are pretty good liar. You are even willing to take some pain to defend your lies. But no one leaves this room without telling the truth. All right, now where were we? Oh yes, the D.C. school district. Tell us that you bought cyanide with the intention of collaborating with al-Rahwiri to poison children’s lunches.”

“I never did that. I never bought cyanide. And I never intended to poison children. I have just been writing judicial opinions and questioning lawyers at oral argument for the past 10 months.”

He looked at me incredulously. “Well, we’re asking the questions now.” He then picked up his file folder, flipped a few pages and picked one out. “If you did not buy cyanide, why do we have this order ticket from CyanID Co. Inc. memorializing the sale of 500 gallons of liquid cyanide to you, Mr. Antonin G. Scalia on July 1, 2009? You see, Antonin, don’t try to deceive us. We have evidence.”

“That’s a forgery. I never did business with that company. I never bought cyanide.”

“Antonin, please. Evidence is evidence. We even have evidence showing that you transferred funds to CyanID Co. Inc. Now, either you tell us the truth or we will draw it out of you.”

“Go ahead. I never did anything wrong.”

The officer sighed. He nodded to the two soldiers, who again braced me. The second officer tore off my shirt. He then took the garden shears and clipped off my right nipple. “Still don’t know anything, do you, Antonin?”

I did not let the officer intimidate me. “No, I don’t. I will not lie to you.” Although it hurt to lose my right nipple, clipping it off was a necessary measure calculated in good faith to protect American children from terror.

At this point, a cell phone rang. The American answered: “Phelps here.” He stood listening for several minutes, interrupting only to say, “yes,” “oh really” and “un huh” several times. Finally, he said: “Yes, sir” and hung up the phone. He gestured for the officer to approach him. He whispered something to the officer. The officer nodded, glanced over at me, looked back at the American, then saluted. The American pursed his lips, turned around, opened the back door and walked out.

Several silent moments passed. The officer said something to his comrades in his language. The soldiers cut the ropes holding me to the chair. The second officer opened the file cabinet and put away the garden shears. He then took my shirt and put it over my shoulders. Finally, the lead officer said in English: “We have received information indicating that you are no longer a suspect. You may leave now.” He abruptly turned and left the room. The second officer followed. The two soldiers stayed with me. I just sat there.

Within minutes, two doctors came into the room and bandaged my wounds. They gave me a new shirt and brought me a meal and water. Then the two soldiers helped me up, led me upstairs and placed me in a waiting truck. The truck drove to a military airfield, where an American transport jet was waiting for me. Two U.S. Air Force officers greeted me. One said: “Sorry for the misunderstanding, your honor,” then gently helped me aboard the plane. They showed me to a comfortable bed and I laid down for the flight back to the United States.

I recount these details because I believe the American people deserve to know what happened to me. Contrary to all the rumors, I was not tortured. Rather, I was subjected to legitimate investigation calculated to determine whether terrorists planned to kill American children. The Executive Branch of the Federal government has authority to pursue any means necessary to protect Americans from terror, including investigations that may appear harsh. Put simply, when our government has a legitimate purpose—such as protecting children from al-Qaeda—it may pursue any methods necessary to effectuate that purpose. Although I endured some personal discomfort as a result of this investigation, our agents cannot always be perfect. I do not fault them for zealously attempting to root out terror, even in error.

I was not tortured because torture is illegal by treaty. Our government does not act illegally, nor does it ignore its treaty obligations. Under the governing legal standard, “torture” means the “intentional infliction of severe pain for a prohibited purpose.” Applying this definition to my experience, I can say to a legal certainty that I did not suffer torture.

First, I did not suffer “severe” pain. True, the thumbscrew device crushed my right thumb. It inflicted “pain.” But it was bearable pain. Viewed objectively, the pain was not “severe.” I can imagine far worse pain. It also hurt quite a bit when the officer clipped off my right nipple. It also permanently disfigured and degraded me. Again, however, the pain was not “severe.” While no specific case under the treaty has ever addressed nipple-clipping, I am confident that—as a jurist—such mild impositions do not rise to the level of “severe” pain necessary to meet the legal definition.

Second, and more importantly, the agents in this case did not inflict pain on me for a “prohibited purpose.” Cases have held that “prohibited purposes” under the treaty definition include sadism, unlawful information acquisition, revenge and medical experiment. Here, the agents inflicted pain on me in the honest—though mistaken—belief that I conspired to poison children in the D.C. public school system. They were acting to prevent what they reasonably believed to be imminent deadly harm to American children. That is about as legitimate a purpose as you can have. It is certainly not “prohibited” to zealously protect American children. In fact, that purpose justifies everything, including the infliction of “severe pain.” Thus, even if I concluded that the agents in this case inflicted “severe” pain on me, they still would not have committed “torture,” because their purpose was not “prohibited.” To the contrary, it was eminently legitimate.

I am committed to the rule of law. The rule of law in my case clearly indicates that I did not suffer torture. We apply legal definitions as they are written, not as what “we think they mean.” Logic and precedent establish that crushing thumbs and clipping off nipples do not constitute “torture” under the governing legal standard. I therefore reject all the liberal allegations that I wrongfully suffered “torture” while in custody last week. The rule of law suffers when the public irrationally applies “colloquial” understandings to make “legal” conclusions. I refuse to turn my back on the law, even if I endured a personally uncomfortable incident.

Torture is a legal term, not a colloquial one. Under law, I did not suffer torture. In fact, I am proud to live in a society with laws that allow its government to use any methods necessary to protect children from imminent terrorist attack. When our children’s safety is at stake, I think it is entirely reasonable to allow our government to take unrestricted action against the suspected conspirators. Our Constitution is not absolute; after all, our Constitution would be worthless if terrorists could freely attack the population. And what good is government if it cannot protect itself in the most threatening circumstances?

I do not need a right nipple to continue my duties as an Associate Justice of the United States Supreme Court. I am ready to get back to work immediately. And I will continue to hold that no one commits “torture” if they inflict pain to protect children from imminent harm.

WHAT I REALLY THINK ABOUT THE LAW (AND LAWYERS)

AN ESSAY

For almost a year now, I have written essays and satires criticizing “the law.” Some mock the legal profession. Others mock the inane factual intricacies of the common law. Still others criticize the unfair power relationships underlying so much contemporary legal doctrine. Still, when I criticize “the law,” I am not advocating anarchy. I am actually criticizing something much more subtle, including people who use law for bad purposes. When it comes to human law, there are men who win and men who lose. It is “game-like.” Some men sit as judges between other men who desperately want to win. It is not neutral because men are not neutral by nature. Men use the law to advance their own causes, whether to protect or acquire property or to condemn men’s bodies to pain. It is instrumental, not academic. Yet human law is supposed to be detached, at least in theory. It is supposed to represent larger principles, not petty interests. But in using law, men pervert principles for their own gain. They could care less whether they do “abstract justice.” This tension represents the focal point of my criticism.

Interestingly, I had to study law for years before I could safely formulate these views. I came from a family that ridiculed lawyers. I was told from an early age that lawyers were “sleazebuckets,” “liars,” “thieves” and “gladhanders” who said anything necessary to make a few dollars. My parents labeled them “rude,” “impolite,” “unscrupulous” and “mean-spirited.” My father had one encounter with the civil justice system in his life. He often recounted it to me. During a deposition about some air conditioning sale gone wrong, the opposing lawyer cast spiteful doubt on every single thing he said. He said it made him feel horrible. He said the lawyer gave him the impression that he thought my father was lying about everything, when in fact he was telling the truth. He also said the lawyer asked convoluted questions in such perplexing language that he could not even really figure out what he wanted to know. Then, after the deposition ended, the opposing lawyer and my father’s lawyer joked around and talked about playing golf on the weekend, as if the foregoing inquisition had been “just another day at the office.”

These pejoratives burrowed deeply into my consciousness. I did not harbor good impressions about lawyers. In my early experience, I did not know many lawyers firsthand. They seemed rather boring and aloof. More often, I saw them mocked in television shows, movies, jokes and literature. These lampoons commonly tracked my parents’ criticisms: lawyers were unethical, mean, ridiculous, fast-talking, text-parsing word-benders determined to make money no matter what. Even Shakespeare’s generation pronounced the dominant judgment on lawyers: “The first thing we do, let’s kill all the lawyers.” King Henry VI, Part 2, Act IV, sc. ii. Apparently, for centuries people have just not liked the way lawyers make them feel. In a word, my upbringing taught me that lawyers were “bad” because they condescended to any artifice to win arguments, all the while manipulating inscrutable language. In essence, lawyers were “bad” and “mean” because they did not speak plainly. And because they “did it all for money.”

But somehow I wound up in law school. Perhaps I was fighting against my own nature when I decided I would study law. At the time, I just wanted an income in life. I studied literature in college. To my chagrin, I found no “literature firms” that paid living wages. In my early twenties, I had knowledge—some would say “useless knowledge” because it did not readily translate into “corporate employability”—but no trade. Yet I needed a trade to pay rent and buy food. I struggled with this for a while. I bounced around doing translations and freelance German-language jobs. I jostled my brain to figure out how to bandy my existing knowledge into a paycheck. Ultimately, I settled on the law because it involved language, rhetoric, writing and—in some sense—government and principle. Despite all my childhood distaste for lawyers, I nonetheless came to understand that there was something redeeming about the law, something intangible and good. I always loved studying history, philosophy and government. I knew that law played a role in these disciplines. It may not have been obvious, but I knew it was there. There was a “hidden allure” in the law beyond mere squabbles for property. It could bring about positive social change and cut through injustice. I did not know how it did these things, so I decided I would learn how it did. At the same time, I said to myself: “I’ll find out what the law is really all about and I’ll get a paycheck in the end, too.” This is how I landed in law school.

Six years later, I can confidently say that you will never meet a lawyer who detests the law as much as I do. Yet there is more to that statement than meets the eye. I learned that the law does indeed prompt the criticisms my parents taught me as a child. But I also confirmed that there is a “hidden allure” in the law that undermines those criticisms. I came to despise the law because—on the whole—the law’s negative characteristics outweigh its positive characteristics. Practice wins over theory in the law, even though much legal theory is thematically pleasing. In short, there is profound tension in all legal discourse. There is tension between practice and principle. Principles transcend; practice does not. Principles exist no matter what result follows in a particular case; practice aims solely to achieve particular results. Principles work only when their adherents follow them; practice demands “flexibility,” even if that means abandoning principle to win. In my “legal career,” I fell in love with principle because principle represents something larger than winning. That made me a terrible practitioner. Law firms do not want discerning legal scholars who insist on adherence to principle. They want discerning legal scholars who are willing to ignore, manipulate and distinguish principle in order to win a case and make money for the firm. This is what repulses me about the law: Principles are all well and good; but principles don’t pay.

Still, not all legal principles are good. I do not restrict my criticism to shameless legal practice. The law indulges in pure intellectual foolishness, too. For example, many lawyers proudly say that we live under the “rule of law.” The “rule of law” requires that government reference written laws and follow authorized procedures before taking adverse action against men’s bodies or property. Government must act according to verifiable law or not at all. There are great advantages to this theory. It prevents “tyranny” because it stops government from arbitrarily imprisoning people or seizing property. It bars government from harming people based solely on individual caprice or ill-will. In that sense, the rule of law cuts down on arbitrariness and “unreasonable conduct” in government. Additionally, by imposing rigorous procedures on government power, everyone theoretically has a chance to defend themselves prior to adverse action. In theory, everyone can know the laws under which government acts.

But the “rule of law” can lead to absurdity, too. After all, if government can act solely according to law, what happens if laws are evil? The government can be evil? In short, the rule of law can insulate the government from internal challenge as much as it can help to ensure order and transparency. Lawyers tend to think that as long as something is “written in law,” it is “right,” even when common decency, intuition, conscience or natural feelings of justice might dictate a contrary conclusion. For example, the “rule of law” in 1954 dictated that government could lawfully segregate African-Americans and whites in public accommodations. Lawyers in the Brown v. Board of Education case could point to no written law requiring that blacks and whites enjoy equal access to public accommodations. In fact, written law explicitly authorized segregation. Yet the Supreme Court ignored the rule of law in that case. It said that the Fourteenth Amendment’s Equal Protection Clause did not tolerate “State-sponsored racial segregation” because such segregation stamps blacks with a “badge of inferiority.” I agree with the Court, even though no written law directly supported its conclusion. But under the “rule of law,” this was an abysmal decision. If the Court had been truly faithful to the rule of law, it would have followed precedent and applied the law as written. At the time the Court decided Brown, there was nothing in the law about “badges of inferiority” or “psychological trauma.” It made these things up. In short, the Court did not just look to the law to render its decision. It looked to principles beyond the law, or at least implied in the law.

To our ears, this sounds courageous. It even sounds noble. But as a technical matter, the Court disparaged the “rule of law” in Brown. In this sense, Brown provides a fine example for the proposition that the “rule of law” can enslave as much as it can protect. When it comes to the rule of law, the result depends on what the law says, not what conscience or justice says. When the law is bad, the result is bad. Viewed strictly, judges have nothing to say about it.

Yet Brown also shows that inspiring principles do sometimes penetrate the law. I love Brown because it testifies to the “intangible allure” hidden in the law. It shows that justice and “natural right” do sometimes prevail over unjust written laws. And more importantly, it shows that justice and “natural right” constantly pull against the law, even if they disrupt its “orderly administration.” Justice always looms in legal questions. Often legal rules are consistent with justice. Sometimes they are not. In theory, judges and lawyers are not allowed to consider anything beyond the law. That is another reason why I criticize the law: It makes it difficult for judges and lawyers to follow their conscience. Rather, it induces them into a “culture of compliance” in which wooden adherence to written requirements supplants principle. In Brown, the Court refused to “comply” with unjust written requirements. Unfortunately, that does not happen very often. More often, judges and lawyers simply follow the path written in the law; and most troublingly, it rarely bothers them.

My struggles with the law mirror the tension between written law and intuitive justice. I think the tension between law and justice fascinates many people, not just those who have studied law. Movies like The Dark Knight become popular because they tap into this fascination, challenging the idea that the law is supposed to deliver justice, or even cares about it at all. At the same time, people confuse the law with justice. They expect the law to deliver results that are consistent with their intuitive sense about what it is right. Often, they discover to their horror that written law dictates a far different result. Those unlucky to be caught up in civil litigation quickly lose all illusions about lofty principles as cases drag on for years, costing both sides millions while lawyers battle over schedules and copy costs. Moreover, when people “get to know” lawyers, they do not see men and women committed to finding justice. Rather, they see men and women committed to complying with technical requirements in precisely such a way as to avoid punishment and to maximize their chances of winning (and fees). Professional ethics rules provide the best example for the proposition that lawyers do not need a conscience to win: They just need to follow what the rulebook says, even if they have no respect at all for the spirit behind the rules. This is the spiritual and intellectual vacuum that flows from fanatical commitment to the “rule of law.” Justice has no place in such a technical maze. It is all about compliance. If compliance results in justice, fine. If it doesn’t, that’s fine, too. In both cases, it’s “legal.”

These are the reasons why I despise the law. But it is a selective repugnance. I do not like the law for its fanatical devotion to form, compliance, technicality and procedure. I do not like the law for its tendency to lure people to believe that its “administrative rules” lead to justice. I do not like the law because it teaches practitioners to ignore conscience and principle when pondering questions that involve both. I do not like the law for the “culture of compliance” it creates in order to replace intuitive justice. In short, I do not like the law because there is nothing noble about complying with rules, especially if they are bad.

Yet I love the law for the brightness it offers. There are principles in the law that offer avenues to justice. There are principles in our Constitution that exalt individual rights, conscience, belief and self-definition against government power. Daring judges and lawyers see the brightness in these principles and apply them to break stultifying legal traditions. While I believe in the rule of law to the extent necessary to protect individuals from tyranny, I do not blindly comply with unjust rules because they are rules. Nor do I feel just for complying with rules simply because they are rules. Rather, I put my trust in principles that may not find expression in written law. And I truly care about those principles, even if they are not profitable.

This makes me a renegade among lawyers.

LAW IS CUMBERSOME, CRUDE AND MONOTONOUS : POWER AT ITS SIMPLEST

AN ESSAY

Friedrich Nietzsche (1844-1900) did not attract fame or fortune during his lifetime. His ideas were ahead of their time; the world was simply not ready for him. He lost his mind in 1888; he died twelve years later, embittered and alone. Interestingly, you can sense his desperation in his late writings, such as On the Genealogy of Morals (1887). In his Prologue to the Genealogy, Nietzsche wonders why people criticize him for “readability.” He defends his aphoristic style, but he seems to want others to understand him. In his last essay, Nietzsche even ventures an “interpretation” of his own writing. He reaches out to the reader as if to say: “Look! It’s not that complex; this is what I am trying to say.”

Nietzsche explained that there really is no explanation. Truth depends on power and judgment. It depends on the narrator, the legislator and their values. Every story is to some extent a judgment; a story gives voice to only one perspective on unique events. That was Nietzsche’s core point in all his writings. During the 19th Century, people had difficulty grasping that concept. After all, most “good bourgeois citizens” in the Victorian era believed that there was a “single good” and a “single evil.” There was no room for debate. The Bible and “popular morality” told them about right and wrong. They comfortably viewed the world equipped with these metaphysical assumptions. Against such entrenched resistance, Nietzsche was bound to fail. He was too progressive for his time. He was a relativist in an absolute world.

But Nietzsche’s influence survived. Within decades after his death, his ideas took root in numerous intellectual fields. Authors such as Franz Kafka and Albert Camus followed in his footsteps. Psychiatrists such as Sigmund Freud formulated scientific theories that substantiated his thought. And 20th Century philosophers such as Michel Foucault and Martin Heidegger all paid tribute to Nietzsche’s groundbreaking “polyperspectivism.” In death, Nietzsche’s relativism triumphed over metaphysics. For all these disciples, Nietzsche’s message was clear: “Truth is illusory. Only raw power and judgment declare truth. Life is a constant battle between individual perspective and constraining powers that impose rules on the individual in all social circumstances, from education to employment to family to law. In the end, it is a war for individual souls; and in most cases, the individual loses badly.”

Michel Foucault theorized extensively about the “power relations” that constrain individuals in modern society. In that sense, he took up Nietzsche’s mantle and more closely analyzed his general ideas about power and judgment. I admire Foucault because he carried on Nietzsche’s original theories about power. My own life experience confirms to me that both Nietzsche and Foucault were right about power relationships in our world. We live amid unfairness, subjected to power from all directions. As individuals, we have little chance to realize our own potential without in part surrendering to massively more powerful forces that can impact our bodies and our property. These forces cannot directly impact our souls, but by impacting our bodies and our property, they can indirectly affect the way we value ourselves. We may not want to work at a certain job for our soul’s sake, but power relations (the landlord, the tax collector, the family, the student loan creditor) indirectly force us to work in order to satisfy their property demands. By forcing us to do things we do not want to do, these superior forces impact our souls. It is not a direct influence on us, but it is an influence nonetheless.

But it is no easy task to read Foucault. In that sense, he differs from Nietzsche. Nietzsche wrote in extremely clear, accessible prose. Even his aphorisms cut to the heart of a question, sometimes with irony, other times with pure rhetorical clarity. Nietzsche could argue as well as a lawyer and ruminate as well as a theologian; but he was too profound to be either a lawyer or a theologian. He was both cogent and creative. He used many voices. He could imitate other writers and mock them. Nietzsche’s facility as a writer makes him easy—and joyful—to read. With Nietzsche, you never know exactly what style you will get. Yet in the end you know you will get an unmistakably Nietzschean message about power, individuality and judgment.

By contrast, Foucault wrote in a much more stilted, academic style. Unlike Nietzsche, Foucault did not write real literature; he wrote academic criticisms. Nietzsche criticized with lively prose or ironic musings; Foucault criticized with analytical university-speak. This is not to say that Foucault did not write excellent criticism. Quite the contrary; Foucault’s work places him among the most cogent 20th Century philosophers. But he is not a writer’s philosopher. It is harder to read his books than it is to read Nietzsche. You need to pore over each page longer. It is worth the effort to read him, of course. It simply takes a bit more work to grasp his points because his language is more obscure and technical than Nietzsche’s.

I enjoy any criticism about law. Foucault wrote extensively about the law because law is an institution of power. During law school, I spent countless hours learning American legal doctrine without really reflecting on the power that created it. Since my last months in law school, I have reflected intensely on that very question. What is law? Where did it come from? How does it operate? Intuitively, I did not buy the American rhetoric about “equality under law” and the neutral “rule of law” that supposedly nullifies all human caprice. No, I thought. Law is not neutral, nor does it apply equally. Law is neither objective nor fair, although it claims to be both.

Why is law so flawed? Simple: Because it is a human invention. Human beings are deeply flawed creatures. They want nothing more than to enrich themselves and win as much power as they can before dying. To achieve that goal, they invent whatever mechanisms necessary to obtain and maintain power. Law represents a way to obtain and maintain power without alienating everyone else. By law, powerful people protect their values and assure their domination over the population. At the same time, the law espouses a superficial appeal that convinces its subjects that they are getting a fair deal, and that the law actually serves them. This encourages them to stay at work, pay their taxes and continue to support a system that really does not care whether they advance or not. In short, I learned that law simply codifies value systems and uses it to cement prevailing power relationships.

When I picked up Foucault, I found confirmation for many of the ideas I formulated after law school. Foucault provided me with additional insights into the power-law connection. Most strikingly, Foucault reminded me that the law is essentially crude and unimaginative. In The History of Sexuality : An Introduction (1976), Foucault asserts that Western discourse about human sexuality has never been repressed. Rather, he argues, we constantly talk about sex; we simply channel our discussions to conform to various power influences. The law is one such “power influence” that channels discussion about sex. In analyzing the law, Foucault writes: “[The law] is defined in a strangely restrictive way, in that, to begin with, this power is poor in resources, sparing of its methods, monotonous in the tactics it utilizes, incapable of invention and seemingly doomed always to repeat itself. Further, it is a power that only has the force of the negative on its side, a power to say no; in no condition to produce, capable only of posting limits, it is basically anti-energy.” The History of Sexuality (Vintage Books Edition 1990) at p. 85.

What a searing critique! Every law professor, lawyer and judge should read that passage and think about it. Why praise the law for its subtlety when it is actually so pathetically simple? When you get right down to it, what is the law except a crude mechanism of repression? What does the law really produce? It does nothing but forbid, then threaten punishment for infractions. It is remarkably simplistic. It is little more than a compendium of general “do’s” and “don’t’s.” Structurally, the law is no different than a kindergarten list that forbids such behavior as “eating crayons,” “punching your neighbor in the face” or “going wee-wee on the floor at nap time.” The lawgiver forbids; he then enforces obedience by punishing those who trespass against his word. It is a power relationship: One speaks; the other obeys. The powerful party inflicts pain; the weaker party submits.

But here we see another weakness in the law. After all, if the law can only say “no” to various human behavior, then the law must also observe and stop the behavior it prohibits. It is one thing to abstractly forbid conduct; it is quite another to find that conduct and punish it. Put simply, it is extremely easy to evade the law because the law has the burden to seek out the prohibited behavior. It is “poor in resources” because there is no way the police can be everywhere all the time. If the law cannot find a violation, it cannot punish. If it cannot punish, it cannot write its power on its subjects. Thus, its general, prohibitory statements mean nothing in practice. On the other hand, if it does find a violation, it punishes. In Foucault’s words, it is “monotonous anti-energy.” You know how it operates. It is simple. It is not subtle. It is not inventive. It “posts limits.” The lawgiver says: “Drive 55.” You drive 56. You transgress. Moreover, law creates nothing. Put simply, we should hesitate before speaking highly about noble legal principles. There is nothing special going on here; the law is little more than a glorified kindergarten “do and don’t” list.

There is reason for all this. The law is simple because it reflects an earlier time. Foucault explains that western legal systems as we know them evolved during the Middle Ages; and they have not essentially changed in the 1000 years since. See History of Sexuality at pp. 86-88. He argues that the law arose around the same time as modern nation-States. Modern nation-States replaced feudal chaos, in which fractured fiefdoms squabbled incessantly because each local prince had his own laws and customs. National Kings, however, imposed uniform rules on the warring nobles, bringing uniformity and peace to splintered realms. Foucault explains: “Faced with a myriad of clashing forces, these great forms of power functioned as a principle of right that transcended all the heterogeneous claims…forming a unitary regime, identifying its will with the law, and [acting] through interdiction and sanction.” Id. at p. 87. In this way, Kings imposed “pax et justitia (peace and justice)” on the land. Their royal courts replaced disruptive private vendettas between aggrieved nobles. Id. at p. 87. The people obeyed their father the King. The King forbade; the people listened. When a child disobeyed the law, the King punished him, assuming he found the transgressor.

This basic structure has not changed. While modern States no longer look to Kings for law, they put their faith in “replacement monarchs,” namely, written Constitutions. As Foucault eloquently points out: “In political thought and analysis, we still have not cut off the head of the King.” History of Sexuality at pp. 88-89. In sum, western societies still follow the “law model” to formulate power. The law has always been simplistic. It still is, even if we make a “Constitution” our sovereign father rather than a King.

Legal theorists applaud the law because it provides “fairness, justice and uniform procedure” for redressing public and private wrongs. In short, these theorists praise “the rule of law,” as if that phrase makes it impossible for tyranny to exist anywhere in a society committed to law. But these theorists unjustifiably elevate the law to a loftier station than it should occupy. They think that the “rule of law” makes it impossible for individual caprice to influence human relationships. Put simply, “rule of law” theorists dress a pig in fine clothes. The law is not ethereal or flawless. It does not provide infallible justice or equal results for all. In fact, contrary to all “rule of law” rhetoric, the law does not apply in all cases to which it should apply. Instead, exemptions, exceptions and immunities to the law are as old as the law itself. This is entirely consistent with the law as a system of power relationships, since powerful people will always treat themselves better than those who must obey. In short, the law is only uniform in theory; in practice, it is exceedingly inconsistent.

Foucault calls this phenomenon “tolerated illegality.” He reasons that every legal system does not enforce laws against certain “unlawful conduct.” It does not matter that certain conduct is “illegal;” power operates by suspending the law in its own favor. See Discipline & Punish (1975) (Vintage Books, 2nd Ed. 1995) at pp. 82-87. In short, every legal system purposely enforces the law in a discriminatory manner in order to favor those who control the system. After all, powerful interests create the law; they will not suffer punishment under rules they created to secure their own advantages. Why become powerful if you are subject to the same laws as the masses? The allure of power lies precisely in the right to play by “different, preferential rules.” In this sense, “rule of law” supporters completely misunderstand the law. The law does not exist to secure common justice and equality. Rather, it preserves the will of powerful interests, and if powerful interests technically violate the law, they will not face punishment. After all, they created the law; it exists to secure them in their superior positions. On this point, Foucault writes: “[The] bourgeoisie was to reserve to itself the illegality of rights: the possibility of getting round its own regulations and its own laws, of ensuring itself an immense sector of economic circulation by a skillful manipulation of gaps in the law—gaps that were foreseen by its silences, or opened up by de facto tolerance.” Id. at p. 87. At the same time, these powerful interests ensured that lower classes faced inexorable punishment for breaking “property rules:” “[This] illegality [of property]…was intolerable in commercial and industrial ownership...the development [of modern commerce] necessitated a severe repression of illegality [against property].” Id. at p. 85. In short, the powerful classes ensured that their conduct would not be punished, while they made every effort to punish conduct that affected their economic interests.

On the whole, then, what is law? A crude, predictable, exception-riddled and ancient system that does little more than “say no,” and even then only selectively. And it is precisely the law’s “selectivity” that makes it so suspect. After all, if all people do not face equal treatment under the law, it supports the argument that law embodies the will of the powerful. Powerful people impose their will on others; they do not allow others to impose their will on them. Law provides a superficially appealing—and straightforward—way for power to maintain itself while allaying popular discord with nice-sounding rhetoric about “equality.” In many individual cases, of course, the law works. It enforces everyday private promises and provides some redress for various wrongs. But this does not make it thematically spectacular, nor does it embody metaphysical truth. It is merely a convenient way to channel power in society. Its goal is not to provide justice or equality. Its goal is to enshrine dominant values in a familiar, awe-inspiring manner: As the father who commands obedience from his children. Yet upon closer inspection, we see that our father is not infallible, nor does he embody metaphysical truth. Instead, he is simply a metaphor for power.

There is nothing grandiose about human attempts to obtain and maintain power. This is law’s function, and the law operates crudely. This is why I disagree with the starry-eyed “rule of law” fanatics. There is nothing spectacular about the law. It is merely power incarnate. And its methods are easy to decipher. As Foucault said, law is “monotonous” and “uninventive.” Power, too, is “uninventive.” It has two simple goals: (1) To stay where it is; and (2) to restrict others from joining its ranks. The law facilitates these two goals.

BREAKING CONTRACTS : IT'S ALL ABOUT POWER

AN ESSAY

After the AIG scandal broke last week, I wrote an essay explaining that there is no legal barrier to breaking contracts. Recently, Americans have been horrified to see federal bailout money paying AIG executives whose conduct helped create the economic crisis. This popular outrage, in turn, sparked a debate as to whether the government can abrogate private contracts. Most Americans seem to think that private contracts are inviolable. They seem to think that contracts have a mystical power that makes them immune from State interference. President Obama’s economic adviser, Larry Summers, went so far as to say: “This is a country of laws. The government cannot just abrogate private contracts.”

Yes it can. Government enforces contracts by sovereign grace. If the sovereign decides that a particular contract will be enforced, there is nothing the aggrieved party can do about it within the law. Of course, this would not set a good precedent. After all, people only do business with each other if they know that the law will force the other guy to honor his promise. But this is a policy concern, not a legal one. In essence, the power to enforce contracts stems from pure political might. It has nothing to do with abstractions, principles or sacred vows. And it certainly has nothing to do with whether the United States is a “country of laws.”

In The Prince, Niccolo Machiavelli wrote: “The principal foundations of all states, whether new, old, or mixed, are good laws and good arms… [and]… there cannot be good laws where there are not good arms…[and] where there are good arms, there are bound to be good laws.” The Prince, Chapter 12 at p. 52. Machiavelli’s clear prose reminds us that a “nation of laws” cannot exist without “good arms,” namely, powerful executive authority. Law cannot exist without force, nor can it even come into being without an original coup. In the United States, there would be no Constitution or laws had the colonists not risen up and defeated the British army through “good arms.” Through “good arms,” the United States maintained the essential stability it required to establish “good laws.” Thanks to protection under “good arms,” commercial men could depend on stable laws. They could count on courts to enforce contracts against those who broke their promises. Americans grew accustomed to a “legal State” in which they could dependably rely on courts to enforce private bargains with neutral, reasonable laws.

That remains the case today. Larry Summers did not voice an insane sentiment when he said: “This is a Nation of laws.” Most Americans agree with him. They take pride in the fact that they live in a society in which courts neutrally apply legal principles that technically treat everyone equally. After all, a “Nation of laws” differs from a “Nation of men,” in which a legal rules flow from the wanton caprice of a single individual. In America, we have laws. In theory, the laws apply equally to everyone, and—as the logic goes—that is a good thing.

But these “defenders of the law” forget that their laws would mean nothing without executive power. Courts enjoy power because they can count on the executive to enforce their “principled” decrees. In contract law, they ruminate about abstract ideas like bargain, consideration, benefit, detriment, equality of exchange, restitution, rescission, reformation, mistake, parol evidence and reliance. They even attempt to allot money damages to aggrieved parties according to fixed, “neutral” rules. They then scribble out judgments and force the offending party to pay. If he does not, the court has no institutional power to do anything but write strongly-worded opinions. To enforce its decrees, it must turn to its institutional partner: The Executive. Only the executive has the billy clubs, guns, prisons and handcuffs to browbeat the offending party into paying up. If he does not obey the court, the executive takes away his property or his liberty. To avoid that fate, the offending party does what the court tells him. That is true power: The power to compel. Cf. Kant (“Law is linked to the authority to compel”). Introduction to Legal Doctrine, The Metaphysics of Morals (Einleitung in die Rechtslehre § D, Die Metaphysik der Moral). The executive is powerful because it can directly inflict pain on bodies and take away property. And as Machiavelli knew, nothing compels men more than threatening their property: “[B]ut above all, [a Prince] must abstain from taking the property of others, for men sooner forget the death of their father than the loss of their patrimony.” The Prince, Chapter 17, p. 72.

What good is it to be a “nation of laws” if the laws themselves are stupid or degrading? That was the question Americans asked when they found out that federal bailout money paid multimillion-dollar bonuses to scallywag AIG executives last week. In my view, waving your hands in the air and pontificating about “our Nation of laws” is absurd. Quite simply, the whole rhetoric about the United States as a “nation of laws” is a vacuous talisman. If it is necessary to allow brigands to take money that would not have been available without their skullduggery because that is what “the law dictates,” then I say the “rule of law” is just as stupid as the law itself. During his confirmation hearings in the United States Senate, Chief Justice John G. Roberts repeatedly pledged that he would issue opinions: “Consistent with the Constitution and the rule of law in the United States,” as if the “rule of law” were synonymous with goodness. What is all this nonsense about the “rule of law?” Laws come from men. Men can be stupid. So can their laws. Therefore, to use a lawyer’s logic, the “rule of law” can be stupid, too. I reserve no exalted place in my heart for the “rule of law.” There once were laws that permitted slavery. Under the “rule of law,” men could own other men in this country. If a law is bad, so is “rule under the law.” For that reason, I reject this hypnotic, reflexive insistence on the “rule of law” in every single situation in which legal rules come into question. For me, it is no answer to mouth the words “rule of law” when defending legal principles that lead to intuitive mischief.

Yet there is no need to even reach the question. We need only worry about the “rule of law” if we assume that the executive will enforce legal decrees. In essence, law is about power. Our constitutional system arose from power and does its best to diffuse power across several institutions. In theory, our legislative, executive and judicial branches are supposed to be “equal” in power. In practice, however, we see how artificial and wooden this distinction truly is. After all, who really has power? Only the branch with the power to compel men’s bodies and take their property has real power. Courts have the power to write erudite opinions on archaic constitutional provisions. Legislatures have the power to draft voluminous bills that attempt to better society with new rules and regulations. But only the executive has the power to shoot, kill, take, invade, imprison, threaten and enforce. Without the executive, neither legislative nor judicial “power” would mean anything. Courts and legislatures are like powerless children who depend on their father to do the muscle work. Only the executive has real power, because it is the branch with the “good arms.” And, in Machiavelli’s parlance: “There are no good laws without good arms.” The Prince, Chapter 12, p. 52. Only real power assures that the law has any force at all. On this point, Machiavelli again puts it best: “For, between an armed man and an unarmed one there is no comparison whatsoever, and it is not reasonable that one who is armed should willingly obey one who is unarmed.” The Prince, Chapter 14, p. 63. In this light, should the executive in this country really listen to carping about the “rule of law” in enforcing abhorrent private contracts for AIG executives? No. In Machiavelli’s terms, it would not even be “reasonable” for the “armed” executive to obey an “unarmed” court.

My sentiments here will undoubtedly cause discomfort among legal “process lovers.” Indeed, my article last week prompted a response that: “This is no way to run a government.” On this point I agree. Laws should be followed. Laws provide stability and comfort to commerce, and that inures to everyone’s benefit. When men know that they can obtain a peaceful remedy from a court, they will refrain from private retribution and “collection.” In almost every case, the executive should enforce legal decrees that compel private obligations. But that does not alter the fact that executive enforcement is essentially discretionary. Only the executive is armed; the court has no real power to compel anything. In rare cases—as here with the AIG bonus fiasco—the executive has the institutional discretion to refuse to honor legal decrees. After all, if private contract law leads to a result so repugnant that it reaffirms Charles Dickens’ famous dictum from Oliver Twist: “If this be the eye of the law, sir, then the law is an ass,” then the executive can step in to reverse the outcry. True, some may say that such “indulgences” to popular sentiment are the first step on the road to dictatorship and capricious government. But I say that it is worse to allow perverse “legal” results than to suspend the law in an exceptional case to avoid public indignation.

I have little patience for those who fanatically put their faith in law. Positive law—meaning written laws passed by popular majorities for majority purposes, ostensibly according to logic and human reason—does not invariably lead to good results or justice. In Hitler’s Germany, for instance, positive law—passed by democratic majorities—forbade marriages between Jews and Gentiles. Later German laws made it “legal” to exterminate Jews at concentration camps. This is an extreme example, but it shows that positive law should not be a talisman. Positive law can be bad. For that reason, trust in the “rule of law” can also be misplaced.

We all want our bargains protected. But that does not mean we should allow AIG Executives to scream “rule of law” to create a result at fundamental odds with our common sensibilities. Our common sensibilities may not be written down in a statute or casebook, but they still matter. On this point, we can turn to the executive to exercise its inherent power to deny enforcement.