There has been some
activity and comment recently on how to behave in the face of an unjust law, or
a law perceived to be unjust by one, some, or many, in a system like ours.
Hence the following question:
In a federal
system such as ours, should unconscionability regarding the rule be allowed to
justify insubordination to the system?
Here are some
situations where the question comes up.
Last term, the USSC
upholds California's draconian Three Strikes punishment
scheme.
NY USDC Judge Martin
retires stating he declines to support an unjust federal sentencing
system.
Justice Anthony
Kennedy tells the ABA and the nation that we're putting too many people in
prison for too long and it is unjust.
A Supreme Court
justice states some time ago that he no longer agrees to participate in the
mechanism of death. Brennnan?
This spring, the
Feeney Amendment, aka the PROTECT Act, as part of the Amber Alert Bill,
restricts the power of federal judges to downwardly depart from the Sentencing
Guidelines.
A-G John Ashcroft
promulgates a rule requiring federal prosecutors to report the names of federal
judges who depart downwardly from the Guidelines.
In Roe v. Wade and
progeny, each side believes the other behaves
unconscionably.
In the slavery and
Jim Crow eras and controversies, each
side, ... ditto.
During the Nazi
regime of Hitler Germany, the Nuremburg Laws laid the legal groundwork for what
we know as the Holocaust.
U.S. soldiers are
taught they have no duty to obey an illegal order, in fact, as I understand it,
have a duty NOT to obey such an order. I do not know the mechanism for
protesting orders believed to be illegal, or what happens when told to obey
nevertheless.
I'm aware of the
opportunity to resign on principle for judges, or to recuse from hearing certain
cases. In the case of the soldier, I believe s/he may apply for status as
a conscientious objector as a ground for non-induction or
discharge.
Then, of course, we
have Judge Roy Moore, the Chief Justice of the Alabama Supreme Court,
who refuses to remove the Ten Commandments from the public courthouse, despite
legal command.
Is it okay to cheer,
say, the German judge who subverts [illegally] a Nuremburg law, assuming
such a thing happened, but to condemn a Judge Moore who follows HIS
conscience (or political instincts)? On what ground does the German judge
justify his insubordination? Natural Law? Higher Law?
Supernatural Law? And Moore?
It seems to me that
a realistic description of what is in fact the case is that one takes one's
chances in going against the system, that the system controls unless and until
the system changes, and many systems, including ours, insist on the principle of
subordination.
The agitation and
protest represented by the above-mentioned individuals simply become, then, part
of the process that may or may not lead to change in the direction desired by
the protestor. Meanwhile, the system grinds on, taking the innocent along
with the guilty, at least as viewed in hindsight, and that's the best we
can devise, at least for the time being.
Does anyone on the
list have a take on the unconscionability/insubordination question that might
lead to a more complete view of the conundrum?
I'd appreciate it if
you so indicated.
Thank you in
advance.
Bob
Sheridan
San Francisco Law
School
