Did you get the email? Stanford’s Fossil Free movement announced on October 7th that they have “over 50” people willing to perform “civil disobedience” until Stanford agrees to divest from oil and gas companies. The number of participants has since risen to 114, all of whom claim feel an obligation to break the law in order to satisfy their morals. I take them at their word; as political philosopher Allan Bloomwrote, for students in the 1960s, “somehow it was never the everyday business of obeying the law that was interesting; more so was breaking it in the name of the higher law. It was always Achilles and Agamemnon.” But in 2015, fellow students see no novelty in bold moral stands once reserved for the rarest of circumstances. Casting aside the rule of law has become almost normal. After all, who among us was really surprised or even taken aback by Fossil Free’s pledge to break our democratic laws?
Fossil Free contends that its actions are necessary because it is operating within an unjust status quo of laws that will lead us to disaster. Of course, therein lies the recipe for the slow disintegration of the rule of law. There will always be a pressing issue to solve, and so we can always justify sidestepping “procedural niceties” to get something done.
A certain prickliness with the rule of law seems written into American DNA, given the country was conceived in not-so-civil disobedience. However, the Founders made it very clear that their new government would be bound by strict rules. As John Locke oncewrote, “Wherever law ends, tyranny begins.” A stable, free, and prosperous nation requires both a system of laws enforced by branches of government with limited, specified roles, and a people willing to follow the law and hold their government accountable to the same standard. Once the rules have stopped being enforced in order to facilitate the passage of good policies, there is precious little left to stop the imposition of bad policies, let alone to safeguard fundamental liberties.
This problem is compounded by the creeping lawlessness of our government, a development that goes far beyond thepolice and theNSA. President Obama unilaterally rewrote immigration law, an action he previously labelled unconstitutional22 times. He snuck the Iran deal past Congress as an “executive agreement,” and launched anunauthorized war against Libya. As legislative power is seized by theSupreme Court, theEPA, andICE, and theIRS andJustice Department are turned into political weapons, the government is freeing itself from constitutional bonds.
Lincoln’sLyceum Address forgotten, the rush to disobey has been echoed across America: from the Wisconsin union protests to the Occupy movement to the violence of protesters in Ferguson and Baltimore. As protesters in Manhattanchanted “What do we want? Dead cops!” and President Obamacondemned American police as discriminatory, clearly prudence had been made subordinate to passions. The internalization of disrespect and disdain for the police forced a difficult binary choice upon legislators: seeing no quick way to end racial misconduct, they either had to double down on police presence and law enforcement or give up and step back in the face of an unruly society. The latter option proved most popular, and as arrests have fallen, violent crime rates haveincreased in major cities – a trend to watch. A weak rule of law imposes rigidity upon crucial institutions of governance.
Moreover, Americans have not stopped at disobeying the law; they have started nullifying it as well. The theory that a state can invalidate any federal law that it finds unconstitutional previously manifested in slave states nullifying tariffs and Southern states nullifying school integration laws. Unfortunately, it hasreturned.
What else can one call the340 sanctuary cities, includingSan Francisco, that ignore US federal immigration law by refusing to report detained undocumented immigrants? The legalization of marijuana alsoviolates federal law, a fact that has not stopped Alaska, Colorado, Oregon, and Washington from doing it. Once upon a time, only secessionists would assume that a state would be able to simply ignore the law because it did not comport to its policy preferences.
Kim Davis has recently beenassailed for refusing to issue marriage licenses to gay couples, but how different is this from refusing to enforce immigration ormarijuana laws? Or from San Franciscoviolating state law in 2004 to issue marriage licenses to same-sex couples? Therein lies the danger of the modern nullification movement: if your city or state can nullify any law that it does not like, then so can any other. If San Francisco does not deport illegal immigrants, Oklahoma City can ban abortions. If Colorado legalizes weed, Alabama can reinstate school prayer. If Fossil Free breaks the law to protest climate change, the Anscombe Society can do the same to protest gay marriage. Ignoring the rule of law is a two-way street: there is no guarantee that only the bad laws (as you see them) will be changed, nullified or ignored once procedural lawlessness has set in.
It must be conceded that Fossil Free’s civil disobedience is not threatening America anytime soon. But then again, neither did the riots in Baltimore and Ferguson, the nullification of immigration law in 430 cities, or even the nullification of tariffs in the South before the Civil War, not by themselves. Now as then, it is through the gradual accumulation of broken laws and ignored rules that institutions – and then people – suffer.