Article 1, Section 10, Clause 1 and Article 1, Section 9, Clause 3 of the United States Constitution prohibit the enacting of ex post facto laws. Laws of this type are the kind that are made after an event has already taken place that was legal at the time of its occurrence, but was then retroactively made illegal afterwards for the purpose of exacting simple retribution against the actors.
Our Founding Fathers recognized the danger in permitting the use of the law for going after someone, or some group, that those in positions of authority simply decided needed to be “gotten even with.” They did not want the law to be used as a sword to selectively punish. Instead, they saw it as a tool to protect people and their property, and to preserve a basic sense of order.
A different aspect of the application of the law, equally important in terms of equity and fairness, has been the notion of selective enforcement. In its most basic sense, this is the case of the police officer who pulls over a car for speeding only to discover a woman in labor in the back seat. The officer puts away his ticket pad and generally red-light escorts the expectant mother to the hospital.
This exercise of discretion is what allows us to live peacefully and functionally as imperfect humans in the black-letter world of legality.
As we near the end of the second decade of the twenty-first century, we have so distorted and made grotesque the above mentioned concepts as to have made many of us lose respect not just for the people charged with enforcing the law, but for the very nature of the law itself.
At virtually every jurisdictional level in the country, we are watching the law being applied as if people are first asking the question: How can I use the law to get this guy? Conversely, we are at the same time seeing the same people say: I don’t agree with that law, so I think I’m simply not going to enforce it.
Now these contemptuous concepts are not new in American history. We can analyze two well known examples. Law was creatively applied in the ultimate taking down of Al Capone. After all of the murder and mayhem he caused, it was the tax code that was used to drag him into a court room and incarcerate him. During the same period of history, Prohibition, we also know that law enforcement all over the country turned a blind eye to the harmless drinking gatherings of otherwise law abiding citizens.
So this has been going on forever, which begs the question: Why worry about it now?
What we need to understand as Americans is that the simultaneous activities of “weaponizing” the law and disregarding the law are pervasive at all levels of government today. Our law enforcement leaders and our elected officials no longer understand terms like “strict interpretation” or “limited reach.”
This extends all the way to the very top of our legal system. The Supreme Court, the FBI, the Justice Department, our Congress, and even the Office of the President make us now feel like our legal system is being overseen not by people who respect the Constitution and the notion of just law, but by people who behave partly as medieval kings and partly as scripted characters from a Mel Brooks or Monty Python satire.
Take just a few brief examples:
- Robert Mueller is appointed as a special counsel to investigate and possible prosecute President Trump and his close associates despite the fact that his appointment clearly does not conform to the requirements for appointing a special counsel.
- There is an extraordinary amount of evidence, real evidence, in the public domain that makes clear Hilary Clinton has likely violated numerous laws before and during her campaign. There is no believable effort being made by law enforcement to investigate, and we know the FBI was given instructions by Loretta Lynch to alter the nature of their original investigation.
- The Internal Revenue Service has been used to punish dissenters and to shut down the legitimate activities of certain groups.
- While the Executive Branch clearly and unequivocally has the power to restrict entry into the United States of people from various countries, judges in various court systems around the nation choose to ignore the Constitution and statutes and simply order that it cannot be done because they do not agree.
- We are now learning of deals made involving the Obama Administration, the Iranian government, and Hezbollah that likely led to the deliberate turning of a blind eye to the importing of narcotics into the United States so that the Iranian nuclear treaty would get finalized.
There are many more. For example, in states and municipalities all across the country, local governments simply ignore existing law regarding illegal immigrants and controlling federal oversight and do so purely for political advantage and votes. In those same areas, laws setting rules for voter eligibility are contemptuously disregarded.
As I have previously written, America has been now divided into two teams, team right and team left. These teams are so engaged in cheering for their side that when they see neglect or over-zealousness in law enforcement they are willing to completely disregard it because all they care about is winning. You can liken it to the virulent sports fan who cheers when his team is the beneficiary of a bad call by an official that lets them win the game.
That’s a game. This is real life, and our liberty is at stake.
People need to understand that they can’t judge the application or non-application of law based upon for whom they might be cheering. It is more than just that; it simply might be their turn to be persecuted next. The logical progression of this madness and corruption on the part of government and law is that our entire nation can sink into an abyss from which we will not re-emerge.
History teaches us that once mankind has created a weapon, it is unlikely to be surrendered. Our government at all levels has now weaponized the law. When our leaders wield law for vengeance, when our leaders disregard law, it breeds both fear for the law and contempt for the law simultaneously. Neither is good. Neither is what our Founding Fathers envisioned. Neither can sustain a free society.
The balance between civil order and chaos is tedious, at best. Being able to depend upon the consistency, limits, fairness, and even-application of law are requirements for peace and prosperity.
Our Founding Fathers were on to something.
About the Author: Brent Hamachek is a professional speaker and author who has written six booklets on various topics for the campus activism group Turning Point USA. In 2016 he co-authored a book, Time for a Turning Point-Setting a Course toward Free Markets and Limited Government for Future Generations. Brent has had his own business consulting practice, Segueway, since early 2000. His areas of expertise include communications, selling, negotiating, and finance. Brent has a BS in Finance & Economics, and has studied theology at Loyola University at the graduate level.