When law makes citizens agents of injustice: The crisis of legislative overreach

“ When law and morality are in contradiction to each other, the citizen finds himself in the cruel alternative of either losing his moral sense, or of losing his respect for the law—two evils of equal magnitude, between which it would be difficult to choose. ”

“ It is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume is to do at any time what I think right. It is truly enough said, that a corporation has no conscience; but a corporation of conscientious men is a corporation with a conscience. Law never made men a whit more just; and, by means of their respect for it, even the well-disposed are daily made the agents of injustice. ”

“ Texas has employed an array of stratagems designed to shield its unconstitutional law from judicial review. To cite just a few, the law authorizes “ [a] ny person,” other than a government official, to bring a lawsuit against anyone who “aids or abets,” or intends to aid or abet, an abortion performed after roughly six weeks; has special preclusion rules that allow multiple lawsuits concerning a single abortion; and contains broad venue provisions that allow lawsuits to be brought in any of Texas’s 254 far flung counties, no matter where the abortion took place. ”

“ Could a greater outrage have been inflicted on a citizen? The State passes laws that provide for the manufacture and sale of a commodity; then, after the business has been established, makes the citizen a criminal who put his capital into it at its invitation. To produce a cheap, wholesome food would seem to be deserving of commendation rather than a prison cell. It is not necessary to read the dissenting opinion to be convinced that such a statute deprives the citizen of life, liberty, and property without due process of law. ”

“ A State can of course impose criminal penalties on abortion providers, including lengthy prison sentences. But some States will not stop there. Perhaps, in the wake of today's decision, a state law will criminalize the woman’s conduct too, incarcerating or fining her for daring to seek or obtain an abortion. And as Texas has recently shown, a State can turn neighbor against neighbor, enlisting fellow citizens in the effort to root out anyone who tries to get an abortion, or to assist another in doing so. ”

“ Like the stockholders in Young, abortion providers face calamitous liability from a facially unconstitutional law. To be clear, the threat is not just the possibility of money judgments; it is also that, win or lose, providers may be forced to defend themselves against countless suits, all across the State, without any prospect of recovery for their losses or expenses. ”

“ Some women, especially women of means, will find ways around the State's assertion of power. Others—those without money or childcare or the ability to take time off from work—will not be so fortunate. Maybe they will try an unsafe method of abortion, and come to physical harm, or even die. Maybe they will undergo pregnancy and have a child, but at significant personal or familial cost. At the least, they will incur the cost of losing control of their lives. The Constitution will, today's majority holds, provide no shield, despite its guarantees of liberty and equality for all. ”

“ The landed man, by having engaged his person and estate for the payment of a species, which is not in his power to perform; and having no alternative: by the law his person is at the mercy of the creditor, and his estate to be sold for so much of that species as it will yield. if 2 or 3 money’d [Pg 213] men call in their money, with a design to force their debitors to part with their estates, at what prices they please to impose: they may bring the price of land to 15 or 10 years purchase. for they would not take bonds in payment, and few or none would be in a condition to buy with money. ”

“ The landed men would want people to labour the ground; they would perhaps get food and cloathing for themselves and families, but these they were owing to, in all appearance, would get nothing: for the case being general, and the landed men the stronger party; they would not suffer their liberty and estates to be taken from them. but tho’ the law could be put in execution, and the estates of the landed men were put to sale; as there would be few purchasers, the price of land would fall very low. ”

“ By law citizens may sue officials who exceed their authority in implementing birth-planning policy. However, there exist few protections for whistleblowers against retaliation from local officials. The law provides significant and detailed sanctions for officials who help persons evade the birth limitations. On October 1, a new set of national family-planning regulations for the migrant population became effective. ”

“ But, to speak practically and as a citizen, unlike those who call themselves no-government men, I ask for, not at once no government, but at once a better government. Let every man make known what kind of government would command his respect, and that will be one step toward obtaining it.
After all, the practical reason why, when the power is once in the hands of the people, a majority are permitted, and for a long period continue, to rule, is not because they are most likely to be in the right, nor because this seems fairest to the minority, but because they are physically the strongest. ”

“ But a government in which the majority rule in all cases cannot be based on justice, even as far as men understand it. Can there not be a government in which majorities do not virtually decide right and wrong, but conscience?—in which majorities decide only those questions to which the rule of expediency is applicable? Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator? Why has every man a conscience, then? ”

“ For if obedience to positive law is right and disobedience wrong, then moral distinctions must have existed before the law; if, on the other hand, obedience to the civil law is morally indifferent, then more than ever is it impossible that this should be the basis of the moral distinctions in question. ”

“ But when a legislature undertakes to proscribe the exercise of a citizen's constitutional right to free speech, it acts lawlessly; and the citizen can take matters in his own hands and proceed on the basis that such a law is no law at all. ”

“ Cast your whole vote, not a strip of paper merely, but your whole influence. A minority is powerless while it conforms to the majority; it is not even a minority then; but it is irresistible when it clogs by its whole weight. If the alternative is to keep all just men in prison, or give up war and slavery, the State will not hesitate which to choose. If a thousand men were not to pay their tax-bills this year, that would not be a violent and bloody measure, as it would be to pay them, and enable the State to commit violence and shed innocent blood. ”

“ It has been gravely asserted not only by the Bureaucracy but also by its apologists, the Moderate Party, that a settled Government is the first necessity of any people and that the subject has no right to present his grievances except in a constitutional way, by which I understand in some way recognised by the constitution. If you [Pg 4] cannot actively co-operate in the maintenance of “the law of the land” they say, “it is your duty as a responsible citizen to obey it passively. Non-resistance is the least that the Government is entitled to expect from you.” ”

“ Where the Government is arbitrary and despotic and the fundamental rights of the people are not recognised, it is idle to talk of law and order.
The doctrine has apparently made its way to this country from England. I shall, therefore, refer to English history to find out the truth about this doctrine. That history has recorded that most of the despots in England who exercised arbitrary sway over the people proposed to act for the good of the people and for the maintenance of law and order. ”

“ It means that the Bureaucracy is in danger and that the Bureaucracy has realised its danger. It is not without reason that the false issue is raised and the fact a false issue has been raised fills me with hope and courage. I ask my countrymen to be patient and to press the charge. Freedom has already advanced when the alarm of law and order is sounded ”

“ Gentlemen, the time is a critical one and it is important to seize upon the real issue which divides the people from the Bureaucracy and its Indian allies. During the period of repression which began about this time last year, it was this issue which pressed itself on our attention. This policy of repression was supported and in some cases instigated by the Moderate Leaders who are in the Executive Government. I do not charge those who supported the Government with dishonesty or want of patriotism. I say they were led away by the battle cry of Law and Order. ”

“ The truth is that law and order is for man, and not man for law and order. The development of nationality is a sacred task and anything which impedes that task is an obstacle which the very force and power of nationality must overcome. ”

“ When I find something put forward in the sacred name of law and order that it is deliberately intended to hinder the growth, the development, and the self-realization of the nation, I have no hesitation whatever in proclaiming that such law and order is an outrage on man and an insult to God. ”

“ In states where property, distinction, and pleasure, are thrown out as baits to the imagination, and incentives to passion, the public seems to rely for the preservation of its political life, on the degree of emulation and jealousy with which parties mutually oppose and restrain each other. The desires of preferment and profit in the breast of the citizen, are the motives from which he excited to enter on public affairs, and are the considerations which direct his political conduct. ”

“ When a portion of wealth passes out of the hands of him who has acquired it, without his consent, and without compensation, to him who has not created it, whether by force or by artifice, I say that property is violated, that plunder is perpetrated. ”

“ Existence, faculties, assimilation—in other words, personality, liberty, property—this is man.
It is of these three things that it may be said, apart from all demagogic subtlety, that they are anterior and superior to all human legislation.
It is not because men have made laws, that personality, liberty, and property exist. On the contrary, it is because personality, liberty, and property exist beforehand, that men make laws. What, then, is law? As I have said elsewhere, it is the collective organization of the individual right to lawful defense. ”

“ Are not our persons and property in fact, at its disposal? Is not the law omnipotent? In creating the educational monopoly, it has undertaken to answer the expectations of fathers of families who have been deprived of liberty; and if these expectations are disappointed, whose fault is it?
In regulating industry, it has undertaken to make it prosper, otherwise it would have been absurd to deprive it of its liberty; and if it suffers, whose fault is it? In pretending to adjust the balance of commerce by the game of tariffs, it undertakes to make commerce prosper ”

“ We find our population suffering from old inequalities, little changed by vast sporadic remedies. In spite of our efforts and in spite of our talk, we have not weeded out the over privileged and we have not effectively lifted up the underprivileged. Both of these manifestations of injustice have retarded happiness. No wise man has any intention of destroying what is known as the profit motive; because by the profit motive we mean the right by work to earn a decent livelihood for ourselves and for our families.
We have, however, a clear mandate from the people, that Americans must forswear that conception of the acquisition of wealth which, through excessive profits, creates undue private power over private affairs and, to our misfortune, over public affairs as well. ”

“ To permit every lawless capitalist, every law-defying corporation, to take any action, no matter how iniquitous, in the effort to secure an improper profit and to build up privilege, would be ruinous to the Republic and would mark the abandonment of the effort to secure in the industrial world the spirit of democratic fair dealing. ”

“ But we forget how many circumstances, especially in populous cities, tend to corrupt the lowest orders of men. Ignorance is the least of their failings. An admiration of wealth unpossessed, becoming a principle of envy, or of servility; a habit of acting perpetually with a view to profit, and under a sense of subjection; the crimes to which they are allured, in order to feed their debauch, or to gratify their avarice, are examples, not of ignorance, but of corruption and baseness. If the savage has not received our instructions, he is likewise unacquainted with our vices. ”

“ But the wise know that foolish legislation is a rope of sand which perishes in the twisting; that the State must follow and not lead the character and progress of the citizen; the strongest usurper is quickly got rid of; and they only who build on Ideas, build for eternity; and that the form of government which prevails is the expression of what cultivation exists in the population which permits it. ”

“ Poverty, crime, physical ills and a blunted or perverted moral sense are the penalties we may be called upon to pay for the disobedience of nature's laws; penalties which not only we may have to pay, but which may be passed down to succeeding generations, thereby influencing the lives of those yet unborn. ”

“ This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added. ”