by Walter Lee walt@crcom.net
An old episode of "Northern Exposure" explored the idea of luck. One of the characters told a story: "A man once went hunting for horses and captured the most beautiful stallion every seen by his tribe. Everyone declared that man was very lucky to own such a beautiful horse. Then the horse ran away, and everyone said the man was unlucky. Then the horse returned with a string of mares he had cut out of a wild herd. Once again the man was lucky. But the horse was strong willed and hard to control. One day, the man's teenage son tried to ride the horse and was thrown and his leg was broken. Everyone thought the man was unlucky to have a horse that did damage to his family. Then, the young men of the tribe went out to war with another tribe. They were ambushed and all were killed. Only the horse owner's son, at home recuperating from the leg injury, survived. And everyone knew that the man was very lucky to have the horse that saved his son."
The issue of Bill Meacham's article, Meta-Ethics of Impeachment, is not luck, but philosophy of ethics. He introduces into the discourse of the impeachment and its trial two apparently contradictory systems of approaching justice. For those who don't remember his arguments, Meacham denotes two approaches to decision making: the "teleological" (also called Aristotelian or Consequentialist) which has to do with the outcome or goal of a particular course of action, and the "deontological"(also designated as Kantian or Conformist) in which an action is judged in terms of some external criteria (right/wrong, moral/immoral, legal/illegal as defined by various codes). The claim of the second system is based on the concept of duty before such external code.
What Mr. Meacham does not tell the reader is that the two are inseparably intertwined. While both can be useful in distinct realms as a method of evaluation or decision making, a teleological view cannot be adopted unless some larger external system is already in place. It is assumed that there is some "higher good," and some imposed duty to pursue it. The argument often raised against the Conformist position is that the code by which choices are made are too narrow. When adherence to a particular code brings results that fly in the face of reason, common sense, or in some cases "the economy, stupid," appeals are made to some over-arching standard. Until we have a place to stand where absolute good and bad can be absolutely recognized, then even the larger system is based on faith and duty.
On one level, my article, The President's Price Tag, seems to take a Conformist's view. I argued that the rule of law should be followed. I argue that our entire system of jurisprudence is placed at risk. The Senate exercised its prerogatives and judged not only the actions, but the outcomes of conviction, and thus acquitted. They played the role assigned to juries in an earlier era of our history-- to judge the law as well as the facts. This system has been rejected by jurists and legal scholars because it leaves no consistent legal fabric. Juries have allowed race, religion, reputation, power, economic consequences, etc. to skew their verdicts. When "who you are" means more than "what you do," we revert to a system that closely resembles the aristocratic societies rejected by our founders.
A close examination of my argument will discover that I am making a teleological, Consequentialist case. My argument is that maintaining the consistency of the system is more important than the present administration or even keeping the economy on track. When I speak of "the system" I am not talking about any particular portion of the code. The details change regularly. What I advocate is the concept that all stand "equal before the law." I believe that history teaches that other systems lead to tyranny. If the law is "good law"-- law that enhances the freedom of vast majority of people, i.e., you are illegal if you drive on the left side of the road in the United States (right side of the road in England)-- then it will be systematically enforced. Judges and juries know there there should not be exceptions. When law is "bad law," selective enforcement allows many who make or enforce it to escape the pain it causes others. The knowledge that bad law will be enforced equally on everyone is an impetus for its defeat or repeal.
Law itself can become a means to tyrany-- particularly when some are exempted from its strictures. My first article published on this site had to do with a Federal Court decision that exempted Ruby Ridge shooter Lon Hourichi from Idaho law. This is not an issue that is limited to the impeachment case. The choice before us is clear: "rule of law" or "aristocracy" -perhaps not the hereditary aristocracy of Europe but a class similar in privilege. Personally, I believe that we live in an over regulated society. I believe that the number of laws which lay claim to our lives is absurd. Most people are unaware of the laws that brush against them. Selective prosecution is the rule. Most violations are never noted, and most of those that are are ignored. Our only hope to regain freedom and to rein in absurd law is equal enforcement and prosecution. Prohibition was repealed in part because juries began to refuse to convict. They acted just like the United States Senate and said, "This is ridiculous. The outcome is absurd." If juries knew, understood and exercised the power they hold on a consistent basis, this would fulfill the criteria of equal justice I seek, unless of course the juries are stacked at the beginning. As it is, almost every judge instructs the jury that they can only rule on "fact." He/she (the judge) will tell them how the law must be applied.
Selectively is how the law is applied: Last year, news reports revealed that only twenty or so cases of violations of the "Brady Law" had been prosecuted, with only seven convictions. The President and his spokespersons credit the law with stopping something like 200,000 handgun sales. Each sale which was legitimately blocked reveals a Federal felony punishable by a mandatory, five years in prison. In each case, the person violating the law is known. They provided their name, address, birthday, and a state issued picture identification card. If they didn't do that, their name was never turned in to be checked. These are not difficult cases to make. The reality is that the government doesn't want to make them. A White House spokesman declared that there never was any intent to enforce the law. The goal was only to slow down the sale of firearms.
When I became a parent, my father offered me his one rule for child rearing: "Never tell your child to do something that you are not willing to make them do." Over the years, I discovered the wisdom of his advice. As my children became teenagers, I "laid down the law" less and less often. I would suggest, reason, and at times plead with them to seriously consider a particular course of action. However, I knew that any authority I held and any respect I would maintain depended on them knowing that I would go to the mat over violation of direct instruction. I discovered that most battles were not worth fighting. Such guidance to law makers would be appropriate. If its worth having in the law, it is worth enforcing. In most cases, you can count on it being enforced only against the poor and the powerless.
The President's impeachment and trial shine a light on our system of justice-- a harsh light that reveals things we don't want to see. What we don't want to see is that rule of law is a myth. We do live in an aristocracy. Unless a white, college educated, middle income member of our society does something really stupid, the chances of being prosecuted are minimal. And even when one is, the chances of conviction are even less. Mr. Clinton is living proof.
What is good? What is bad? What is right? What is wrong? What is teleological? What is deontological? What ends do we pursue? What duties do we have? Good questions! The answers depend partially on where you enter the story, the immediate outcomes, and the events that follow. Maybe a century from now we will have a clearer picture of the effects of the Clinton acquittal. I wish us lots of luck.