Dodges And Their Dodgers

     Way, way back in high school, as part of an essay contest, I was tasked to read a rather inane essay which lodged firmly in my damnably retentive memory: “On Not Prosecuting Civil Disobedience,” by “legal philosopher” Ronald Dworkin. Dworkin’s argument was as convoluted as such things always are. At the core, it consisted of this: that someone who breaks a law out of “conscience” isn’t really a criminal, but rather a servant of justice. He argued that the prosecution of such persons actually imposes a loss upon “society:”

     [O]ur society suffers a loss if it punishes a group that includes—as the group of draft dissenters does—some of its most thoughtful and loyal citizens. Jailing such men solidifies their alienation from society, and alienates many like them who are deterred by the threat.

     Dworkin’s motivation appears to have been opposition to the draft, which at the time of his essay (1968) was front and center in the public eye because of the ongoing Vietnam War. Of course, that war is now history, rapidly fading from public consciousness. As those who fought in it age and die, memory of the upheaval it engendered will fade as well. But Dworkin’s argument was pertinent to contemporaneous concerns. Few draftees went as willingly to arms as their parents and grandparents who fought in World War II.

     Today’s upheavals are over illegal immigration, the millions of illegal aliens within America’s borders, and what “should” be done about them. As the Gentle Readers of Liberty’s Torch are surely aware, two judges were recently arrested for relevant reasons. The uproar from the Left has seldom been louder. This article provides some perspective:

     MSNBC’s legal expert, for example, wondered whether this was the “best way to handle” what are admittedly bad-looking facts for the judge. He said, “It doesn’t look great for the judge, no matter how you slice it. But was this kind of escalatory action the best course of action, to actually go and arrest her, take her to court, and federally charge her? That’s a big step.”
     In short, MSNBC’s expert Dilanian called for ‘prosecutorial restraint.’ In other words, maybe judges should be above the law after all, if they’re on our team.

     Were the Dworkin argument – i.e., that one who breaks a law out of “conscience” ought not to be prosecuted – to be accepted as a legal principle, what defense would Judges Dugan and Cano mount, to say nothing of the many others who are currently aiding illegal aliens’ evasion of the immigration authorities? How would it be litigated? Is there a procedure for determining whether a plea of “conscience” is sincere? For “conscience,” like “justifiable homicide,” is an affirmative defense. Such a defense must be tried before a jury.

     That blows a large hole in the proposition that “civil disobedience” ought not to be prosecuted.

     Among the more important legal arguments of our time is the one over jury nullification: the proposition that the jury in a criminal trial has an absolute right to return a verdict of “not guilty” even if the defendant committed the act of which he’s accused. A jury has that right because a verdict of “not guilty” cannot be appealed, and because jurors cannot be held legally liable for their decisions. Judges and legislators dislike jury nullification for obvious reasons, but as a legal principle it stands unbreached.

     Prosecuting attorneys have a kind of nullification power, in that they may elect not to prosecute a particular defendant. Judges have their own version: they can rule a criminal complaint “dismissed in the interests of justice.” But as public officials, they’re subject to the scrutiny and criticism of the public, which might elect to remove them from their posts for too egregious an action of that kind.

     Thus, the threat of prosecution is not absolute, regardless of the offense or the motives of the offender. But under the law, it’s the deterrent that’s supposed to correct for floutings thereof. A nation that places the law above all persons, positions, and statuses cannot arbitrarily exempt any person or class of persons from its dictates. That’s the essence of the Fourteenth Amendment’s equal-rights and due-process guarantees.

     I intend to watch the Dugan and Cano cases closely. We’ll soon see if it’s really true in practice that “no one is above the law.” Not to put too fine a point on it, that assumption has been challenged by the kid-gloves treatment of some very prominent persons, including a recently unseated president of these United States and his son.