A pastor I know of has had to abandon an important sermon, “everything is accepted, while nothing is forgiven”. It wasn’t because the Deacons found the subject matter too challenging or inappropriate. This does happen, by the way. My dad, who grew up in Virginia in the late forties and early fifties, describes a procession of town pastors relieved of duty by the Deacons for preaching the “segregation is not Christian” sermon.
Where they were silenced for their principles, the pastor was denied two of his foundational rights (speech and religion) by fear. He was worried asserting them might go viral on social media. Having to defend them could bring legal costs that can ruin him just as completely as losing his career can (and might ruin his church). As I’ve written in these pages many times: our legal system is dysfunctional because the process is too much of a punishment.
Ironically, we also have legal precedents addressing the issue of placing undue burdens on rights: the Jim Crow era segregation of people of color, being the most odious example. Whole divisions of the government, with whole bodies of law, were formed to make a remedy. So far, so good. When the state blocks the exercise of rights, it is well and good that the state should be required to legally address it. If we use the theoretical: “would it be a rights violation if a Jim Crow law imposed a “publishing tax” on a newspaper for People Of Color (POC), that cost the value of a house?” The principle would be crystal clear, and the “Left” side of the political divide would wholeheartedly agree. Neither would they accept an argument that our newspaper for POC is always free to publish privately. What about an example of a POC held at risk for termination because they expressed a Left-leaning political viewpoint (cities would to burn). If it cost the POC the same amount of money to assert their rights, “Rights only for the Rich!” would be the howl (add in that the process can take a half decade).
If we take the same example, and apply it to this scribbler: “what if a writer has to express himself only in a walled-off, private group, for fear his employer will fire him, for exposure to legal risk, which might cost the value of a house to decide?” This would not be seen as excessively burdensome to most people on the left (for the ones that create the risks, it would be a virtue).
Gideon v Wainwright established the right to state-provided legal counsel for those who cannot afford it. Maybe it is time to extend this to civil law. Are only the well-off to have their day in civil court? After all, a Jim Crow poll tax was never a criminal matter, and the courts were required (rightly) to address it. This would also bring a separate (and vast) benefit: if a municipality were liable for the legal expenses it creates, it would restrain itself from creating inscrutable laws. Clarity would make legal dysfunction (and lawyers) less self-sustaining.
We have a half century of applying the concept that a right with excessive burdens to practice is no right at all. Contrast this with the fact that millions of Americans reveal that they are constrained in exercising their right to free speech. It’s not like the new precedents stifle everyone’s (and all) rights to expression. That would be unconstitutional (LOL). This restraint falls disproportionately on the political principles of one group of Americans: over half of the “Right”-oriented American electorate now believes they are being censored. And what creates the self-censorship? Why, it’s fear of the system heavy with precedent for the prevention of undue burdens on freedom of expression!
Contrast this with the fact that we went to the Supreme Court to concern ourselves with whether one gay couple can compel a cake from a baker asserting his own freedom of religious conscience. Broad and utterly traditional rights curtailed for tens of millions of Americans, versus outlier ones entertained to the most minute detail! It is also a case-in-point to look at this aspect of the Landmark Cake Shop case: normally, a small business cannot afford to assert any right to do business against the infinite legal pockets of their regulator. Much less be able to take the case all the way to the SCOTUS. We had a precedent for Rights only because friendly deep-pockets made the exercise of the Right possible! Our legal system has evolved from fights over Rights, to the duel of resources it takes to sustain the fight itself.
This evolution of over-law has not just stunted our basic rights, it has brought American courts to even greater dysfunction: many jurisdictions are unable to use their own courts because they are clogged with cases. This is, to a large degree, because the law must now decide, down to the micro level, whether people can be compelled to bake cakes for each other (or, what people muse on their social media). And we have no cost-effective mechanism to resolve such trivialities.
This is the uber cause of the undue burden: the law is a guild, and entry into the guild is regulated by… itself. Alternatives are disallowed by the very system that profits from the expense, and is not affected by the dysfunction. The government that mandates the laws is 90% lawyers, who see things as lawyers do, who have no incentive to address the issue. When was the last time any candidate, Right or Left, brought up legal reform?.
Endless ink could be spilled covering what legal reform could be, but suffice to say that the American legal system is unique in the world, so our unique failure should seem inevitably to follow. Everywhere else, the cost of a legal battle creates an incentive to mitigate it, in the “loser pays” concept. Everywhere else, more paralegals are allowed. In most of Scandinavia, what would be family law here is managed by social workers. Since we have a mania for making laws regulating everything, how about a law that says only 20% of candidates for public office can be lawyers, until the imbalance of legal-myopia is worked through? In our disasters of the COVID era, who can argue that we need more public-health perspective in making law?
Or: this libertarian feels that opening the solution space, by taking laws off the books about how much one has to use lawyers would quickly create an evolution of technology and specialty paralegals. People who know, say, tax law, but not Constitutional law, would deflate the bloat (take it from a paramedic, paras can be really effective). Anyone who claims reform like this will upset our way of life is not looking at the functionality of every other nations’ legal systems. Nor at the extent to which our own is upsetting ours.
Incidentally, the batty twisting of concepts which threaten to upend long-established civil rights are not just happening in the USA. Here is a real head-scratcher: a school pastor in England was [fired for “terrorism”][] for questioning a LGTBQ curriculum (what kind of school…wait for it…a Christian school).
When the state blocks the proper exercise of a basic right, it is well and good that the state should be required to make a remedy. So far, so good. What should the remedy be, when the law itself is the undue burden? Can any court address the ironies of burdens imposed by its own ways? But It would be in keeping with centuries of American precedent, if the Supreme Court heard a case making this argument. That could, theoretically, topple the whole edifice. Like Roe vs Wade; Plessy Vs Ferguson; Brown Vs Board of Ed. The final irony: Americans already have a two centuries old Constitutional promise of a right to a speedy trial.
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