The Tomb of the Unknown Document

Ken noted that prior restraint is unconstitutional, and yet Judge Neilson has restrained a citizen through an order.

Commenter Chris Rodes replied:

"The constitution? How many divisions does it have?"

Another commenter responded:

All of them. Every service member has taken an oath to support and defend the Constitution of the United States, and to follow the lawful orders of the officers placed over them.

This is missing @Chris' excellent point: The phrase "The Constitution", like the phrase "Rule of Law", is a mantra chanted by young and naive libertarians. If saying those magical words helped, we wouldn't need to say those magical words.

In this actual world of realpolitik and cynicism, we need to acknowledge that the Constitution is a prescriptive document, but a descriptive explanation of how shit goes down is that government employees do what they will, and they keep doing it until someone with a bigger stick stops them.

In this case Judge Neilson threw a man in jail, and no matter how many times we chant "Constitution!", that man will stay in jail until the guards release him. Neilson might order the guards to release him…or the guards might get an order from someone they respect or fear more than Neilson. Maybe the appeals court tells the guards to release the prison. Almost certainly the guards would do so, but in the world of realpolitik, maybe they don't…not until the appeals court tells the state police to send 20 men to the prison and remind the guards to release him. Etc.

@Chris Rhodes's stunningly pithy "The constitution? How many divisions does it have?" reminds us that 22,000 patriotic Poles were murdered in a forest and buried in an unmarked grave, and Stalin died in a warm bed. Why? Because when Stalin issued orders, people obeyed.

When Judge Neilson issued orders, people obeyed. The Constitution was violated, an innocent man was hauled off to jail, and for all we know he's being raped daily.

Where's your Constitution now? Its preserved corpse lies in a helium-filled glass sarcophagus in Blue Square, but its soul is buried in an unmarked grave in a forest.

"How many divisions?" indeed.

Last 5 posts by Clark

Comments

  1. says

    Yep. Every elected or appointed official at every level fancies himself a king or a cardinal until made to do otherwise.

  2. says

    Yes. You've nicely articulated what bugs me about that segment of the right that I will, in honor of Dale Gribble (did you ever get the clip I sent you?), call the Fringe on the Flag segment: The ones who comb through a hundred volumes of law, select sections at random, put them together like a ransom note, and declare that so long as they don't use a ZIP code, the government can't seize their C4 and they don't have to pay their mortgage any more.

    You'd think libertarian-inclined types would be the FIRST to acknowledge that the law is "whatever the guy with the most guns says it is". Putting on my Completely Untrained Amateur Sociologist hat, I'd guess the dichotomy comes from many of the Fringe On The Flag types being deeply inculcated with the belief that being "law abiding" is a powerful and fundamental virtue, and so, they need to believe that "law" is on their side, even if every entity responsible for writing, interpreting, and enforcing the law says otherwise.

  3. Dan says

    How did we get from unconstitutional prior restraint, to genocide?

    LITERALLY STALIN!!!!

    Clark, you're developing a tumblr-esque talent for overstatement, not to mention your fixation on rape.

  4. says

    @Dan

    Clark, you're developing a… fixation on rape.

    I apologize for concentrating too much on an utterly trivial issue.

  5. SarahW says

    He did contribute to his own situation by refusing to show up for his contempt hearing and showing cause why he should not be arrested. This was possible, if the law is on his side. Perhaps thumbing his nose at not only the order, which is one thing, but the hearing itself, had something to do with it.

  6. says

    @Dan

    LITERALLY STALIN!!!!

    You read that and your first thought was not "metaphor", but "literalism"?

    The public schools are worse than I'd realized.

  7. Matt Smith says

    Hardly a new phenomenon, though. When Andrew Jackson's expulsion of the Cherokee from the southeast was ruled illegal by the Supreme Court, he did it anyway: "Let John Marshall enforce it!"

  8. a_random_guy says

    This reminds me of Abu Ghraib. The things going on there were blatantly illegal and, yes, unconstitutional. Officers have a responsibility to disobey illegal orders. We are sworn to uphold the Constitution first; everything else comes after that primary responsibility. In the course of investigations, it became clear that officers all up and down the line were aware of the abuses. One lowly lieutenant actually found the guts to protest; he was allowed to resign rather than be court martialed.

    How often has the JCS accepted and executed blatantly unconstitutional orders? Too often to count. Much of the military above O6 (colonel) has been corrupted by politics; seemingly only the young and naive junior officers still remember what their oaths mean.

  9. says

    in honor of Dale Gribble (did you ever get the clip I sent you?), call the Fringe on the Flag segment

    Ha! I use the exact same analogy for the exact same reason.

    I've got a sort of crazy coffeehouse acquaintance that I see from time to time. Once he was regailing me with a theory about how the Civil War wasn't actually something-or-other because the legislature of the State of Tennessee hadn't actually gavelled out its legislative session as being over, but merely as being continued, and I interrupted him:

    "Hunter, Hunter – I get your point. I really do. You're a Platonist and a formalist, and you're looking at this situation and saying 'if A then B; if B then C'. I'm utterly sympathetic to that, because my brain works in the same way…but let me cut to the chase. Your point may be true in some sort of mathematical sense, but it's not true in any sense that matters to real people. In the real world, if enough people say that X is legitimate and Y is illegitimate, then that's the reality on the ground, and it doesn't matter how many MIT Math PhDs go back and comb the historical record and find 150 year old footnotes. The reality is that in the world today, if the legislature of Tennessee says "jump", the government employees of Tennessee jump. No amount of arguing will make them listen to some not-constituted-in-150-years-shadow-government-in-exile."

    The wind went out of his sails and he looked down, then mumbled "yeah, I know, but it's fun to think about".

    The ones who comb through a hundred volumes of law, select sections at random, put them together like a ransom note, and declare that so long as they don't use a ZIP code, the government can't seize their C4 and they don't have to pay their mortgage any more.

    LOL. Exactly.

    You'd think libertarian-inclined types would be the FIRST to acknowledge that the law is "whatever the guy with the most guns says it is".

    As much as I'm a libertarian (and I am), I also acknowledge that libertarianism, like many other movements, is a refuge for the losers who still don't think it's fair that the high school football team captain got head from the cheerleaders when it was in fact the NERD who had a higher GPA.

    Putting on my Completely Untrained Amateur Sociologist hat, I'd guess the dichotomy comes from many of the Fringe On The Flag types being deeply inculcated with the belief that being "law abiding" is a powerful and fundamental virtue, and so, they need to believe that "law" is on their side, even if every entity responsible for writing, interpreting, and enforcing the law says otherwise.

    Good insight. I'll take a tangent on that and suggest that the problem is that the analytical nerds don't understand that the Written Law is not the same as the unwritten Actual Law of Power. They memorized the entire Player's Guide, God-damn-it, so what do you mean that rolling a natural 20 doesn't hit?

  10. Dan says

    Yeah, of course it's a metaphor, Clark, thanks. Believe it or not, my tiny public-schooled brain managed to grasp that the first time around.

    It's a shitty, shallow, hyperbolic, and overused metaphor on par with calling your opponents Nazis, an argument often derided with the phrase "literally Hitler." For someone who uses irony almost non-stop in his own writing, you're awfully prone to missing it in others'.

  11. AP² says

    @SarahW: Yeah, he was just asking for it. I mean, he exposed himself so much to litigation, and didn't have the decency of showing up; the judge is only human, he couldn't help himself.

  12. says

    @Dan

    It's a shitty, shallow, hyperbolic, and overused metaphor

    The Katadin forest massacre is overused as an analogy for the US Constitution? You must hang in different circles than I do, because I've never seen it done, not once.

    Anyway, I continue to be amazed at people who identify a given writer as reliably producing bowls of shit…who then get in line every day with a spoon at the ready.

  13. James Pollock says

    This is missing @Chris' excellent point: The phrase "The Constitution", like the phrase "Rule of Law", is a mantra chanted by young and naive libertarians.

    This is not at all missing the point of Chris' quote, and I am neither young nor naive (and only vaguely "libertarian"; I'll defer comment on that one.) You kind of dropped the important parts that followed the part you quoted.

    It's true that government officials may choose to not follow the dictates of the Constitution; it's also true that they may fail to follow the orders of the persons lawfully placed over them. We deal with that as it happens. (See, e.g., 1861-1865, or the Little Rock Nine)

    The original point is that the Constitution has only the power that people give it, and some choose to not give it much, if any. However, many, MANY others give it a great deal of weight (even if they don't all agree on EXACTLY what it commands) and the Constitution has beaten back all enemies, foreign and domestic, for over 220 years.

  14. says

    People need to understand how these things work. Judges are very busy people, Judge Neilson probably had about an hour and a half to work through his motion calendar before starting a trial.

    So that morning a lawyer shows up ex parte seeking an injunction. Because it is ex parte the judge hasn't seen the papers before. The judge hasn't got time to read the papers all the way through, much less look at the cases cited to see if they stand for the propositions the plaintiff says they do.

    Ken says that the relief sought was clearly unconstitutional, but the judge might not know that. First Amendment issues don't come up all that often in state trial courts, and in a lot of less commonly litigated areas a judge will rely on the lawyers to tell him what the law is.

    So the judge relies on the process. He makes sure that the defendant received adequate notice. The judge assumes that if the defendant received notice of the hearing and had a valid opposition to the motion he would have appeared and opposed the motion.

    But if the other side doesn't show up and the motion appears to be facially valid, it is likely going to be granted.

  15. says

    @James Pollock

    The original point is that the Constitution has only the power that people give it,

    Then we are in agreement.

    the Constitution has beaten back all enemies, foreign and domestic, for over 220 years.

    I'd say 60 years, not 220.

    The Constitution took a major hit under Lincoln, but it was FDR and his court-packing New Deal that drove a stake through its heart.

  16. SarahW says

    I get the injunction is not justified. I do not get how refusing to show up for his hearing is.

  17. James Pollock says

    "My thread brings all the commenters to the yard."

    Yeah, but it does so by substantially distorting my point by selective quotation. Are you angling for a job in broadcast journalism?

  18. says

    @James Pollock

    substantially distorting my point by selective quotation

    James,

    I quoted you and presented your point as I understood it.

    Because my disagreement with what I took to be your point was the core of my post, and because I didn't want to be seen as bullying you with a bigger megaphone, I left your name out of it.

    In this thread that you chose to out yourself.

    …and you said that I had misunderstood your original comment.

    OK, fair enough. I reviewed your original comment and still have the same take-away I initially did, but if you assert that that's not what you meant, then I accept that.

    I acknowledged your correction above.

    Are you angling for a job in broadcast journalism?

    Are you angling for a job in not getting that I'm gently joshing Ken over a matter that is entirely unrelated to you? Because the hours are decent but the pay sucks.

  19. says

    Ken:

    I read both posts, but I meant to put my comment here. I obviously agree with your post that the order was clearly unconstitutional. I disagree with Clark that the order proves the constitution is dead. More likely just an overworked judge treating an unopposed motion as presumptively meritorious.

    As for George, if he doesn't start trial today it sounds like he owes me a martini.

  20. Chris Rhodes says

    I have been quoted on Popehat. My life is now complete and I may die a fulfilled man.

    All of them. Every service member has taken an oath to support and defend the Constitution of the United States, and to follow the lawful orders of the officers placed over them.

    The idea of the US military rolling through the wall of a county jail in tanks and APCs, ready to do their duty to the constitution and free an unjustly imprisoned man does make me giggle a bit.

    "Should the occasion ever arise, remind me to not make a government and give it a piece of paper with instructions on how to restrain itself." – Jeffrey Tucker

    EDIT:

    And in general, when any of my friends or family asks me "Can the government really do that?" my stock answer is usually "The government can do whatever it wants, because what are you going to do about it?"

  21. jb says

    Good insight. I'll take a tangent on that and suggest that the problem is that the analytical nerds don't understand that the Written Law is not the same as the unwritten Actual Law of Power. They memorized the entire Player's Guide, God-damn-it, so what do you mean that rolling a natural 20 doesn't hit?

    There appear to be two strands of libertarianism (not mapping onto the left-right division that I love to argue about on here): The fringe-on-the-flag types discussed above who can't tell the difference between Written Law and Law of Power, and those who are libertarian specifically because they can tell that difference.

    I am a libertarian, and many of my libertarian friends are for the same reason (and I think Clark would agree), primarily because I recognize that law works like a ratchet: the Written Law does not restrain the Law of Power, but only serves to legitimize and expand it. Therefore, those who rely on the Written Law to protect themselves from the Law of Power receive no protection, but the wielders of the Law of Power use the Written Law to expand their power. Therefore, we should be very cautious when expanding, changing, or interpreting the Written Law, so we can see exactly what new tools it will give the wielders of the Law of Power.

    Shorter version:

    The State: "I can do what I want, and that written law you are pointing to won't actually protect you." "Why do you have to do what I say? Well, there's this written law here…" Therefore, we should carefully examine the written law to minimize the State's ability to do the above with impunity and without scandal. Hence, libertarianism.

  22. Zak N. says

    @Clark

    I apologize for concentrating too much on an utterly trivial issue.

    Although I don't have much of a bone to pick with this post in substance (which I found thought-provoking), your use of a rape metaphor also bugged me. The line in your post served to trivialize prison rape and didn't add to the substance of what you were saying. It actually made your point far less clear.

    The same thing is true with your ubiquitous use of Hitler/Stalin metaphors. It masks the interesting points you have, usually by comparing a mundane injustice to the systematic murder of tens of thousands. While they are both bad things(tm), the comparison is silly and distracting due to a change in scale. (I mean, seriously, you need a log plot just to get them on the same chart.)

    The Katadin forest massacre is overused as an analogy for the US Constitution?

    Forest for the tress, Clark.

  23. desconhecido says

    The idea of the US military rolling through the wall of a county jail in tanks and APCs, ready to do their duty to the constitution and free an unjustly imprisoned man does make me giggle a bit.

    Lawyers don't know what the constitution says, neither do judges or police. Military officers, in general, are not effectively trained in constitutional law and the vast majority of soldiers in the enlisted ranks don't have a clue as to what the constitution says or means and can only be expected to identify an unlawful order in the most blatant of circumstances.

    The group of lawyers which should know most and be able to discern best, the Supreme Court justices, don't agree on what the constitution says and what it means and likely wouldn't agree in many, many cases as to what constitutes a lawful order from a military superior.

    So, you are correct. Expecting the military, or members of the military, to defend the constitution against those who incarcerate people for violating unconstitutional prior restraint orders is pretty funny. Particularly when, as has been pointed out, it may not be illegal or unconstitutional to incarcerate someone for violating a court order even when the court order is technically illegal — or at least legally unjustified.

  24. En Passant says

    The rub in all this is an empirical observation about human behavior from a document preceding The Constitution:

    Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.

    The question then becomes: when do the evils become insufferable?

  25. Erik Carlseen says

    "But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it." – Lysander Spooner, The Constitution of No Authority, 1867

  26. says

    @Zak N

    your use of a rape metaphor also bugged me.

    The reference to rape was not a metaphor. I consider rape, inside or outside of prison to be a huge issue, and I have donated to multiple charities that fight it.

    The line in your post served to trivialize prison rape

    Then I failed in my attempt to communicate; I'll try harder next time (seriously).

  27. NI says

    I agree that the prior restraint order was unconstitutional. That said, when people get sued, even if it is completely frivolous, they still have to show up and defend themselves or risk the consequences. If a judge issues a contempt order, you can't just ignore it. That's why we have courts of appeal. Otherwise, every losing litigant would simply decide that the court order was illegal.

  28. desconhecido says

    One lowly lieutenant actually found the guts to protest; he was allowed to resign rather than be court martialed.

    I can't be sure, but this probably is a reference to the case of then Captain Ian Fishback . Fishbask, a West Point graduate and the son of someone I used to know, recognized that he was ill equipped to determine by himself what constituted a lawful order. There's, of course, much more to it than that. Fishback famously wrote a letter to John McCain asking for clarification.

    Fishback, as I recall, did catch some grief over taking the position he did, but he was not forced to resign and is, apparently, now a major in the army and an instructor at West Point, probably in philosophy but I don't know that for sure.

  29. UlrikeDG says

    "Some scholars now call for constitutionalism… It calls on the government to at least abide by the laws made by itself."

    Zhang says the constitutional argument also forces the government to take a position that reveals its true nature and what it really cares about.

    "When people ask you to follow your own laws, the demand is legitimate," says Zhang. "If you don't follow it, it will make more people realize that you are a liar and also destroy your legitimacy."

    China's Debate: Must The Party Follow The Constitution?

  30. melK says

    > an innocent man was hauled off to jail, and for all we know he's being raped daily.

    to paraphrase a meme, "You know nothing, Clark Paper."

    … for all we know, he's eating caviar in minimum security.
    … for all we know, he has been replaced by a pod person.
    … for all we know, he's secretly on a clandestine mission for the NSA involving loose women, fast cars, and the stolen plans to a most impressive battlestation.

    Isn't lurid speculation fun?

  31. CHH says

    @Clark

    They memorized the entire Player's Guide, God-damn-it, so what do you mean that rolling a natural 20 doesn't hit?

    Ouch, man, right in the dice bag.
    (Walk it off, walk it off, walk it off…)

  32. says

    @melK

    to paraphrase a meme, "You know nothing, Clark Paper."

    … for all we know, he's eating caviar in minimum security.

    Perhaps.

    It's my understanding that 10-20% of prisoners are raped. I provided a link to this data a few days ago.

    If you have a link explaining how many prisoners eat caviar, please feel free to post it.

  33. says

    The original use of the "how many divisions" question, of course, was by Stalin, in reference to the Pope. And the Pope seems, despite having no divisions, to remain something of a force to be reckoned with in world politics.

  34. somebody says

    Regarding Stalin's death: Stalin died because he had a stroke in his bedroom and his guards were under strict orders to not disturb him. They were cooperative and obedient, and didn't check up on Stalin as he lay on the floor in a pool of urine for almost 24 hours.

  35. says

    @David Dyer-Bennet

    The original use of the "how many divisions" question, of course, was by Stalin

    Sshhh.

    By pointing out that (a) Stalin made the quote that (a) Chris Rodes referenced, you're disrupting Dan's narrative that I decided to make a Stalin reference from whole cloth.

  36. says

    @somebody

    Regarding Stalin's death: Stalin died because he had a stroke in his bedroom and his guards were under strict orders to not disturb him. They were cooperative and obedient, and didn't check up on Stalin as he lay on the floor in a pool of urine for almost 24 hours.

    If only more politicians were treated with the respect that they've earned…

  37. Chris Rhodes says

    As I understand it, Stalin had faked an emergency previously to see if his guards would come in (against his previous orders), and when they did, he had them executed.

    Guess he didn't think that one through.

  38. says

    The question then becomes: when do the evils become insufferable?

    For any given individual, the point where they're willing to risk their life fighting them, rather than endure them. In a sufficiently large population, no matter what the social structure, there will be at least some individuals who whom this is already the case. (Often, these individuals disagree with each other a great deal on precisely what they object to, and hate each other more than they hate the society they're protesting.) They are known as "domestic terrorists".

    As the number of people for whom violent resistance seems like the only viable choice increases, you have the makings of an actual revolution. Smart governments buy off the majority of the dissatisfied with token changes, leaving only the fringe who can be dealt with as they manifest themselves. Stupid governments keep tightening the screws. This process of buying off can lead, over time, to genuine and considerable change, because there will be waves of discontent, followed by more buy-offs, and so on.

    There isn't a one-size-fits-all, this-is-when-we-go-to-war, answer. What might trigger me to take up arms isn't what might trigger someone else. Orson Scott Card claims gay marriage justifies violent revolution; I'd be more likely to support revolution if they started locking people up for "sodomy" on a mass basis. (I know some people still are locked up for it, but it's sufficiently rare that change within the system is still much more viable. People whose attitude is "Any injustice mandates violence, now!" are idiots. Real world — every society has injustice, and we all endure a certain amount of it, because perfection isn't an option. This doesn't mean you don't highlight injustices and call for change or correction — it does mean you don't start bombing buildings because you didn't get everything you wanted the moment you demanded it.) People further to the left than me might be more concerned about corporate or environmental issues.

    It is very rare that a society goes from "a few nutters in a shack in the woods/studio apartment in Berkeley" to "fighting in the streets" quickly enough that the establishment can't react to slow or halt the process. The relatively free communication we enjoy in the West, rather than leading to violent revolution, tends to slow it down, because public expressions of discontent and the process by which the social consensus moves from "Only a total lunatic would take up arms against their own government!" to "Y'know, things are really bad and getting worse and it looks like nothing's going to change." happen in ways that can be responded to by the state. The flash uprisings you see in other parts of the world happen because there's no visible social consensus and the state can lie to itself and say it's a tiny handful of extremists. (And, likewise, when a revolution is led mostly by extremists, not by the masses who are finally fed up, the extremists usually turn out to be just as bad as the people they replace. How's that Arab Spring working out for you?)

    [1](I think it is interesting to note, BTW, that for all the fuss about "violent right wing extremists", the number of domestic terrorism incidents in the US peaked in the early 1970s, far, far, higher than anything since, and that was mostly leftists. I suspect we've seen little on that front since then for two reasons: a)Charles Darwin, and b)The bomb throwing young leftists of the early 1970s have become The Man.)

  39. desconhecido says

    It's my understanding that 10-20% of prisoners are raped. I provided a link to this data a few days ago.

    No, you didn't. And the link did not substantiate the claim you made when yolu provided it either.

    The link you provided states:

    A 1992 estimate from the Federal Bureau of Prisons conjectured that between 9 and 20 percent of inmates had been sexually assaulted.

    So, it's an estimate and it's referring to federal prisons, not to city and county jails, which probably is where numbnuts is being held.

    What does the link you provided say about jails rather than prisons?

    A United States Department of Justice report, Sexual Victimization in Prisons and Jails Reported by Inmates, states that "In 2011-12, an estimated 4.0% of state and federal prison inmates and 3.2% of jail inmates reported experiencing one or more incidents of sexual victimization by another inmate or facility staff in the past 12 months or since admission to the facility, if less than 12 months."

    So, in jails the number is around 3.2% of inmates. Not an insignificant number but quite a bit less than your 10-20% assertion. Then you have to consider how rapes are likely distributed among detainees in city and county jails. I don't know for sure, but would speculate that very few people locked up for contempt are among those raped in city and county jails.

    So, is it more likely that the Schnauzer is being raped daily than that he is eating caviar in minimum security? Perhaps, but not by much.

  40. A. Nagy says

    Clark made the assertion that 10-20% of prisioners get raped. He did not make the assertion that 10-20% of prisoners got raped in the last 12 months.

  41. Chris Rhodes says

    @Lizard

    For any given individual, the point where they're willing to risk their life fighting them, rather than endure them.

    Since I'm just full of quotes today, apparently:

    "Power concedes nothing without a demand. It never did and it never will. Find out just what any people will quietly submit to and you have found out the exact measure of injustice and wrong which will be imposed upon them, and these will continue till they are resisted with either words or blows, or with both. The limits of tyrants are prescribed by the endurance of those whom they oppress." – Frederick Douglass

  42. desconhecido says

    Clark made the assertion that 10-20% of prisioners get raped. He did not make the assertion that 10-20% of prisoners got raped in the last 12 months.

    Neither claim is supported by the reference.

  43. Steve979 says

    When I deal with government,I think of this:

    "When I use a word," Humpty Dumpty said in rather a scornful tone. "It means just what I choose it to mean – neither more or less."
    "The question is," said Alice, "whether you can make words mean so many different things."
    "The question is," said Humpty Dumpty, "which is to be master – that's all."
    Lewis Carroll

  44. Docrailgun says

    A libertarian without those magic words is just an anarchist. If one believes that people won't do the right thing because it's in their best interest for them and their community then, that people have to always be forced to do everything, then one is saying that there's no point in any society other than those ruled strictly by an sutocrat.
    Grim stuff.

  45. says

    @Chris: Since each individual's conception of "injustice" differs, you end up with some interesting effects. Those who accept zero injustice — as they define it — usually end up dead early on. (Bear in mind, I'm including "It's an injustice that I'm not the one in charge, and people don't just obey me as they should!" as a common form of "injustice" that some people refuse to bear. Less sarcastically, there's plenty of people around today who will complain about the government's "tyranny" in not permitting them to shoot homosexuals, witches, and people who read the wrong version of the King James bible. (Ditto, those who consider it a gross injustice they are not being given a six figure job as a reward for their years of work getting a PhD in Wymmyns Revolutionary Social Justice Peace Studies, lest anyone think I'm picking unfairly on the right.) So whenever someone hauls out the "We must tolerate NO INJUSTICE!", I have to ask: Who decides what counts as an injustice?)[1]

    Most people will agree with some form of "Society should be just" and "unjust laws should be repealed", but getting people to agree on the specifics is much harder, especially in a societies as diverse as most Western ones. When you start getting broad agreement that something's unjust — not necessarily a majority, but even 5 or 10 percent of the population getting seriously riled up, enough that mass protests occur and the fringe who advocate violence are starting to be seen as maybe being right… that's when smart governments start paying attention and doing something. You don't need a majority to have a revolution, because the majority are lazy sots. Few successful revolutions promise to make life worse for the majority, after all. They can sit back, let the revolutionaries do the work, and reap the rewards later on. Most governments do not have the resources to suppress active, widespread, dissent by even a tenth of the population. The majority doesn't have to hold a gun, walk the barricades, or even learn the words to the Revolutionary Anthem. They just need to not be passionate enough about the current state of affairs to risk their necks defending it, any more than they were willing to risk their necks to change it. (Remember, I'm not talking about 10% of the population being willing to vote a certain way, or agreeing with some premise in theory, or signing a petition. I'm talking 10% of the population willing to actively engage in violence. For that to happen, the injustice needs to be pretty damn severe, because, for most humans, "I have food, I have shelter, my kids are OK, I have high odds of dying peacefully in bed at a reasonable age" are more important than almost anything else, and our brains are programmed to tell us to sit down and shut up as long as those needs are met.)

    [1]My cats, for instance, are continually protesting about multiple gross violations of their basic feline rights, such as "the right to have my food dish filled with gooshyfood at all times", "the right to sleep on the keyboard", and "the right to cleanse the shelf of all items that can be knocked to the floor". They conduct these protests via singing songs of discontent, and sometimes by acts of civil disobedience and direct action.

  46. AlphaCentauri says

    The actual percentage of people who get raped in prison is not pertinent to this particular discussion because 1) even one prison rape is too many when they occur because our prisons do not have adequate provisions for the safety of the people for whom it has assumed responsibility by incarcerating them 2) prisoners are not equally likely to get raped, and an asshole who is this talented at pissing people off would be at very high risk off being assaulted, no matter how astronomically small the odds might otherwise be.

  47. Demosthenes says

    Off-topic, but: every time Lizard strings together a set of comments that I mostly or entirely agree with, and I start questioning why my default mode with respect to Lizard comments is so suspicious, it is a statistical probability that the next post will contain something like:

    "Less sarcastically, there's plenty of people around today who will complain about the government's 'tyranny' in not permitting them to shoot homosexuals, witches, and people who read the wrong version of the King James bible."

    I live in a very conservative and very religious area of a very conservative and very religious state. If these sorts of people are commonplace enough to be described as "plenty," I feel a bit left out. You would think my friends and neighbors would have the decency to extend an invitation to a good ol' fashioned pitchforks-and-torches party at least once.

  48. says

    @Lizard

    Less sarcastically, there's plenty of people around today who will complain about the government's "tyranny" in not permitting them to shoot homosexuals,

    One thing I've found quite odd in my reading of history is that this division and argument about what "freedom" means goes all the way back in American history.

    At the time of the Revolution the Quakers were upset that they weren't free to live their own lives with interference…and the Massachusetts Puritans were upset that they weren't free to rule dictate all manner of regulations to their neighbors without constant interference from the King who wanted that perogative for himself.

    Oh, Massachusetts, never change.

    [ Massachusetts responds, in a Kennedy accent: "don't worry, we won't!" ]

  49. says

    @Lizard "They conduct these protests via singing songs of discontent, and sometimes by acts of civil disobedience and direct action."

    I highly recommend Nature's Miracle for the cleanup.

  50. Spinoza says

    As much as I'm a libertarian (and I am), I also acknowledge that libertarianism, like many other movements, is a refuge for the losers who still don't think it's fair that the high school football team captain got head from the cheerleaders when it was in fact the NERD who had a higher GPA.

    This is total BS! First, if I was some "nerd" with a chip on my shoulder, would I really be here on an Internet comment board anonymously defending my Rothbardian ethos against the misleading propaganda of OFA sock puppets?

    Second, it was the hockey captain, and my GPA was only slightly higher.

  51. desconhecido says

    prisoners are not equally likely to get raped, and an asshole who is this talented at pissing people off would be at very high risk off being assaulted, no matter how astronomically small the odds might otherwise be.

    Ornery old, fat, white guys with a tenuous grasp of reality are at high risk of being raped in Alabama jails while being confined for civil contempt and misdemeanor resisting charges? I don't buy that.

    Even so, I'm staying out of Alabama.

  52. Philosopherva says

    In Cory Doctrow's novel "Down and Out in the Magic Kingdom", the 'Bitchun Society' occurs when people simply refuse to follow their government.

    Oh well, it's a scifi fantasy, anyway.

  53. amber says

    Your mistake is not realizing that the Supreme Court of the United States of America ruled that the Constitution was null and void more than fifty years ago.

    Nor do you realize that SCUSA ruled that the United States was, de juro, a dictatorship, in which the people elect the dictator every four years, or until the dictator decides to cancel the election.

  54. Eye Roll says

    The gist of this post seems to be:
    1. Private party in a civil defamation case seeks overreaching order.
    2. Second private party doesn't show up, trying to dodge service (apparently unsuccessfully, based upon Ken White's analysis of the applicable law).
    3. State court judge (who surely deals with federal prior restraint issues all of the time) issues invalid and unconstitutional injunction, failing to distinguish any portion of a mountain of contrary, established federal authority, after having none of said authority cited to him by the defendant.
    4. Defendant ignores order and Plaintiff seeks to have judge enforce contempt proceedings against defendant.
    5. Judge finds defendant in contempt of unconstested order, although said order is clearly unconstitutional under a mountain of authority never cited by defendant.
    6. Defendant gets locked up by cops enforcing uncontested, though unconstitutional order.
    7. ???
    8 Stalinism.
    It sucks that the defendant ignored the entire process and now has to deal with a order improperly entered against him. In an ideal world, the judge be knowledgable in basic First Amendment law and would catch the mistake without the defendant pointing it out. But that's what happens when you have an adversarial system and one party decides to ignore the proceedings. So yes, if you actually want to be protected by the constitution, you have to show up and assert your rights, not assume that your adversaries will do it for you or that the local state judge is going to get the decision correct without hearing your arguments.

    If the defendant continues to be imprisoned for any significant period of time after he actually starts to participate in the process, I will start to get worked up.

  55. Roy Haddad says

    In an ideal world, the judge be knowledgable in basic First Amendment law

    Wow, ideal worlds ain't what they used to be.

  56. stillnotking says

    Your post implies that the fidelity of American government employees to the Constitution is either nonexistent or irrelevant. If that's the case, I'd ask why those employees do, in fact, follow the Constitution an overwhelming majority of the time, even when no one is forcing them to. I'm guessing it's for the same reason that most people wouldn't clean out the silverware drawer when a friend asks them to house-sit, or steal the coins from a blind beggar's cup. Human nature may often be ugly, but it's nowhere near as universally ugly as your cynical gloss on realpolitik assumes. People do believe in things, Clark — it seems odd to have to explain this to you, considering you're easily the loudest moralist on this blog — and most Americans, even those awful government employees, believe in the Constitution.

    Judge Neilson is very obviously the exception, not the rule, and you do the cause of opposing his ilk no favors by pretending otherwise.

  57. Luke G says

    @Clark, @Spinoza

    Well what the heck are you suposed to do when you've got the high GPA, work your way up to captain of the varsity football team, and STILL have no luck with the ladies? *shakes my fist at an uncaring sky* I was promised cheerleader sex, universe!

  58. 205guy says

    Why does the map say Lenin's tomb? Stalin left the mausoleum in 1961 and was buried on the wall to the left (about half-way between your red pointer and the bottom of the frame). Plus the link on the map doesn't work for us mortals.

    I agreed with everything Clark wrote up until the first occurence of "might" ("Neilson might order the guards to release him…"). From then on it was pretty much (and pretty ugly) fan-fiction.

    Also, I don't understand why Clark doesn't enlighten us with his references (and then misguides us with wrong names). I am referring to his cryptic "22,000 patriotic Poles were murdered in a forest and buried in an unmarked grave" which he later calls the Katadin forest. I believe he is referring to the Katyn forest, and confusing the name with the Kalinin prison. So if you know you're the first to use the analogy, don't you think it bears explaining? I will say that I once took a history course from Stalin's translator, and he didn't mention the massacre–so hardly common knowledge. I came across the subject in reading about Polish history.

    For those wishing to know more: http://en.wikipedia.org/wiki/Katyn_massacre and http://en.wikipedia.org/wiki/Vasili_Blokhin (warning: I find that 2nd link to be the kind of reading that upsets my faith in humanity, the kind you think about over and over without really wanting to–read at your own risk).

    In regards to comparing a judge to Stalin in the first place, I think Dan's two comments sum up my opinion. Well played, Dan.

    Clark wrote: "then get in line every day with a spoon at the ready." Two possiblities: coprophages or shit-flingers (although: http://www.mnn.com/earth-matters/animals/stories/poop-throwing-by-chimps-may-actually-be-a-sign-of-intelligence).

    Clark wrote: "it was FDR and his court-packing New Deal that drove a stake through its heart." Another jab at FDR. Maybe you need to write a historical piece about him to get this off your chest.

    James Pollock: I agree with you that Clark quotes selectively and then amplifies his shrillness for effect, but he will still claim to debate constructively.

    Roscoe and Eye Roll: I think you both explain quite well how things happen in this imperfect realwelt.

  59. Bryan says

    The idea of the US military rolling through the wall of a county jail in tanks and APCs, ready to do their duty to the constitution and free an unjustly imprisoned man does make me giggle a bit.

    I can just see the results of that action, one pulped innocent man.

  60. says

    which he later calls the Katadin forest. I believe he is referring to the Katyn forest,

    Indeed; a typo.

    Too much Appalachian Trail on my mind.

  61. hymie! says

    Clark,

    I can't say I'm a huge fan of yours, but I have to agree with you on this point.

    The Constitution is a list of things I am allowed to sue the government to stop doing.

  62. says

    @hymie!

    Clark,

    I can't say I'm a huge fan of yours, but I have to agree with you on this point.

    Thank you.

    One nod of appreciation from someone on the other side is worth 10 "YEAAAHHH!"s from my fellow travellers.

  63. JohnMc says

    A little late but here is my pitch. The Constitution query is an offshoot of a quote that Stalin made about the Pope. Well lets roll forward to 1989 and the Berlin Wall is being hammered by Germans. A Pravda reporters walks into Gorbachev's office and asks — "How many divisions does the Pope have?" I suspect his answer would be "Enough!". The Pope/Reagan/Thatcher threesome took the Soviets down without a shot.

    So how many divisions can the Constitution have? There are 51m males between 20 and 45 years of age. A US division on average is about 20,000 men. Roughly 2550 divisions. That is if you follow the dictates as were laid down by the 1st and 2nd Militia Acts; "All able bodied men between the ages of 18 to 45 …". The trick is how to get them all ticked off at once?

    No Super Bowl maybe??

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