Friday, July 31, 2009

spirit of the law

Have you ever watched a basketball game where the referees forgot their role? Every little infraction of the rules ,no matter how minor, was whistled, the foul line became busy, and the game became a bore. Despite the fans cry of "just let them play", the referees persisted in their enforcement of the rule, and later were surprised that people complained. They said ,"but the rules are the rules and must be enforced.",forgetting that it was a game people came to see, not a whistle-fest.

Now everybody understands what a travesty that is. But a greater travesty occurs when the "law and order" crowd get their way in the fields of the courts and law enforcement. Then it is not just a game that suffers, it is real people and their lives and livelihoods that are damaged.

Remember that a law is only as good as the reason it was made. As Jesus said to the Pharisees, "the Sabbath was made for man, not man for the Sabbath". It was made to provide a rest for mankind, not binders. We must remember why laws were written and judge accordingly. And that a law can't be written to cover everything in specifics , there has to be interpretation and careful application to each case. That is why we have judges, not just legal automatons.

I can think of three instances where insistence on strict,limited law application has harmed our society. One is mandatory sentencing and the "3 strikes" laws. These came from well-meaning individuals but have serious flaws. There are instances of judges excusing criminal activity , but more often I think are cases where the judge is handcuffed. You have to consider first time offenders and repeat criminals differently. And not all felonies are the same, so the 3-strikes laws can handcuff judges as well. Career criminals, shown by lengthy rap sheets, and violent offenders need to be kept in jail to safeguard the public. But there is a whole realm of rehabilitation and restitution, aspects of law that are sorely lacking in our society today. We cannot just "lock 'em up and through away the key". That is madness, financially and otherwise.

Immigration is a bigger issue that needs to be addressed in a separate post, but suffice it to say here that those who cry "but they're breaking the law" about illegal immigration, need to think about their own record and how they themselves would manage if someone caught and prosecuted them on every minor infraction of law -like when they go 5 miles an hour over the posted speed limit?

Finally, in keeping with the continued news over the Supreme Court nominee approval process, what about activism and judicial philosophy on the court? The Constitution is a set of laws, written by good men over 200 years ago in a society that is vastly different from ours. It's principles remain vital, but it must be allowed to live and breath and adapt to continual changes. That is why the Congress is given the "necessary and proper" power. The founders knew that things would change and the government needed the flexibility to adapt. Judges must be mindful of this, as well as remembering their role as guardians of liberty, protecting the rights of the minority against excesses of the majority, against over-reaches by legislative or presidential power. They are a check and balance, not just a rubber stamp for law enforcement. Much more about that whole area later, but this again is an area where the spirit of the law needs to be remembered.

And of course, it all comes back to the golden rule - "do unto others as you would have them do unto you". Or as someone else wrote it, before you judge me , walk a mile in my moccasins.

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