Recently, I litigated whether a client was constitutionally stopped for a missing right mirror on his vehicle despite having a left and center mirror on his vehicle. The evidence submitted by way of stipulation was that my client was completely innocent while he was driving of any legal violation, criminal or traffic, since he did have mirrors. The officer, it was admitted, had made a mistake not of fact, but of law, in pulling him over. Nevertheless, given recent Wisconsin and U.S. Supreme Court decisions, the trial court found innocent people can lawfully stopped by police when the police make a mistake of law.
So what has become of America now? In our lives we have seen that various authoritarian regimes systematize oppression by passing more laws. This practice has long been criticized. The Roman historian Tacitus observed, “The more corrupt the state, the more numerous the laws.” It continues today. When journalists like Al Husseini Abu Deif were killed during Egypt’s clashes in 2012, it was all done legally. The law was followed. When Fred Korematsu, a Japanese-American man, was interned into America’s Gulag, it was done lawfully and endorsed by the courts. Today, when Black Americans were (and are) told they are not entitled to all the legal protections, it is done legally by various criminal laws which had their origins in Jim Crow.
It makes me wonder if authoritarian regimes rule by lawlessness or by law?
Solzhenitsyn described the history, the methods, and the structure of Soviet forced labor camps in great detail in his long, multi-volume work, The Gulag Archipelago. Article 58 (which was repealed in 1958 in the course of a complete revision of the Penal Code) Solzhenitsyn maintains that the gulag system still existed and was, with the addition of the sentences to psychiatric clinics, even more vicious. There were fourteen sub-sections to Article 58, all of them formulated so broadly (even more broadly than a disorderly conduct statute) that practically any action (or even nonaction) could be, and was, interpreted as “a crime against the state.” In fact, virtually all the inmates of the “special” camp described in Solzhenitsyn’s other book, One Day in the Life of Ivan Denisovich had been sent there because of a violation of some provision of Article 58. Clearly, recent history demonstrates that a citizen’s oppression is not done by lawlessness but by the law.
So we now live in an America where the most innocent word or action is a crime. Or, as Solzhenitsyn once put it, “Wherever the law is, crime can be found.
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