Legitimate constitutions would not give anybody the power to treat people arbitrarily. We should assume that the U.S. Constitution authorizes Congress to enact genuine laws but not to enact pseudolaws.
A genuine law is a general rule of action enforceable by sanctions — deprivations of life, liberty or property. A general rule applies to everybody. A rule enforceable by sanctions but applying only to some people (black people, perhaps, or women, or Jews, etc.) is a pseudolaw. It is phony, dividing people into different classifications and applying only to some people.
In 1948 Michigan had a pseudolaw prohibiting women from working as bartenders unless the bar was owned by their father or husband. It's gone now but was upheld (on liberal grounds!) by the Supreme Court in Goesaert v. Cleary (335 U.S. 464, 1948).
General rules are less likely to be obnoxious, since they apply to those who make the rules, too.
The constitutional basis for prohibiting pseudolaws is the 14th Amendment's provision that no state "shall deny to any person within its jurisdiction the equal protection of the laws." Although this restricts only state governments, the Supreme Court has held that a similar rule binds the federal government.
If Congress enacts a pseudolaw, courts should strike it down as ultra vires, "beyond the powers" the Constitution grants to Congress. But courts might not always take this responsibility seriously, especially if they strongly support the goal for which a pseudolaw was enacted.
Fortunately, if courts fail to protect us, there is a second line of defense: widespread civil disobedience to the pseudolaw. Legislation only works if nearly everyone obeys it, since enforcement resources are finite and it is impossible to jail or fine everyone.
A common objection to civil disobedience is that it breeds contempt for law, making government impossible, and that without government we would revert to Thomas Hobbes' "state of nature" where we have a war of all against all and "life is nasty, brutish and short."
But civil disobedience to pseudolaws wouldn't breed disrespect for genuine laws.
Some legislation is neither a genuine law nor a pseudolaw. It merely states the terms on which and with whom government is willing to enter into voluntary associations. No sanctions are involved here, only inducements offered, denied, reduced or terminated by the government. We can refer to such legislation as bylaws.
The federal government enters into numerous voluntary associations with individuals, with corporations, and with other governments, so bylaws are extremely important.
Since all legitimate governmental goals can be achieved by a judicious combination of genuine laws and bylaws, there is never justification for enacting pseudolaws.
A prime example of a pseudolaw was the former military draft, which imprisoned (a deprivation of liberty) selected people for refusing to serve. The well-named Selective Service Act was a pseudolaw since it only threatened some people with sanctions, not the entire population.
Now we recruit an army by taxing everyone (law) and then inviting people to enter into a voluntary association with the government by offering them inducements funded by those taxes rather than threatening them with sanctions. This combination of genuine laws plus bylaws recruits the needed soldiers without singling anyone out and arbitrarily commanding that person to serve.
The first line of defense against pseudolaws will require judges and lawyers to understand how to distinguish them from genuine laws. The second line of defense will require the general public to understand this distinction and to refuse to obey pseudolaws.
Although the distinction between laws and pseudolaws is clear, it is not yet widely understood or appreciated by lawyers or by the general public. There is a job here for educators, and I hope my commentaries will play a useful part in this education.
Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. He received his Ph.D. from Johns Hopkins University in 1966, and has been a National Merit Scholar, an NDEA Fellow, a Woodrow Wilson Fellow, and a Fellow in Law and Political Science at the Harvard Law School. His college textbook, "Thinking About Politics: American Government in Associational Perspective," was published in 1981 and his most recent book is "Beyond Capitalism: A Classless Society With (Mostly) Free Markets." His columns have appeared in newspapers in Michigan, Oregon, and a number of other states. To read more of his reports — Click Here Now.
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