It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [111]
1. expressed in general terms, and
2. publicly promulgated, and
3. not retroactive, and
4. easily understandable, and
5. consistent with one another, and
6. not impossible to obey, and
7. not changed so frequently that the subject cannot rely on them, and
8. administered in a manner consistent with their wording.
What is Professor Fuller’s basis for identifying these eight requirements? He notes that without them, laws would be, as a practical matter, without any effect, since the purpose of the law is to “subject human conduct to the governance of rules.” Consider the Jacksonville vagrancy and Arizona immigration laws once more. How can one subject one’s conduct to such rules? In other words, I ask these questions: How does one avoid looking like an illegal immigrant, or a habitual loafer for that matter; and can the government proscribe the way people appear; and whose freedom do these laws protect? Without these standards in place, a legal system would fail to guide individuals’ conduct, and thus, it would not be successful as a legal system. Although many contend that society would degrade into a lawless, kill-or-be-killed disarray under a libertarian regime, we can see from Professor Fuller’s requirements that it is in fact when Natural Law principles are not abided by that true anarchy occurs.
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Although Professor Fuller’s analysis is more focused on the efficacy of a legal system, these requirements are equally necessary in ensuring that we are deprived of liberty only when genuinely warranted, the true purpose of due process. Consider how just a system would be if it did not comply with each of these requirements. For example, what if the law was so hopelessly complex that one couldn’t understand what it in fact prohibited? We could then be punished for doing something we didn’t even know was illegal. Moreover, criminals would be able to get away because police didn’t know that what they were doing was illegal either. Even worse, if laws were impossible to obey, the government could charge only its political enemies, and win a guilty conviction every time.
To this extent, consider the use of vagrancy statutes in the Jim Crow South. Because overly vague criminal statutes offer no standards, as suggested above, they also give law enforcement officials no guidance in how to apply those laws. This not only facilitates, but encourages discriminatory application of the law. Such was precisely the intended effect of such vagrancy statutes in the Jim Crow South. Recall that the vagrancy statute in Papachristou criminalized the act of “loafing” or, in other words, appearing lazy. These statutes would be used to pressure unemployed African Americans or unwanted Caucasians to enter into unfair labor contracts; many would accept unconscionable terms since the alternative was criminal penalties. Thus, these laws were used to perpetuate an economic system which resembled slavery.
But, one may retort, the Arizona immigration law is just “different,” that is, it is seeking to address a legitimate problem, and these legal requirements of definiteness are not protecting liberty, but simply inconvenient and impeding law enforcement efforts. It is therefore “unfair,” so the argument goes, to compare the law to vagrancy statutes in the Jim Crow South. The answer is that, although the Constitution was intended to set up an effective government, it was not intended to be “convenient” or, in other words, to be relaxed when we deem it proper to do so. Moreover, the Founders specifically warned us that the biggest threats to our rights were not sudden, outrageous transgressions (such as internment of Japanese Americans during World War II), but gradual, piecemeal erosions of liberty. Due process does not prevent Arizona from dealing with immigration problems in an efficient manner, merely from using arbitrary and vague laws which give police officers no guidance and permit