Remnant Review
Those of us on the Right have long read predictions of the coming police state in America. I can remember them half a century ago.
I do not think the scenario is plausible. I want to explain why.
First, most of the proponents of this scenario never offer a concise definition of a police state. I think this is because they have not thought carefully about it. Here is mine.
A police state is a national government ruled by people with an ideology of state centralization. This government has a national police force that either bypasses the judiciary or faces an impotent judiciary. The rule of law in weak. The state’s enforcement of the law is arbitrary. The public accepts the legitimacy of this system, so resistance is isolated and sporadic. Most people conform voluntarily, thereby reducing the costs of law enforcement.
The best description of a police state that I have read is Volume I of Solzhenitsyn’s Gulag Archipelago . This country is nowhere near that society. It is not moving toward that society. It is moving away from that society. The whole world is, except for pathetic Venezuela, which is run by a communist ex-bus driver. That model is dead. There is nothing deader than an idea whose time has passed.
Second, the proponents do not provide compelling evidence that the United States’ judicial system no longer functions in terms of juries and legal precedents. Instead, they focus on a few documents, notably the Patriot Act, in order to show what could be done by the state on paper. It's bad, of course. But there is little evidence that the Patriot Act is anything more than a wish list of Deep State upper-middle-class bureaucrats. Example: detention centers. They are today filled with illegal aliens. Call this the tyranny of the urgent. Washington cannot effectively police the southern border, let alone detain 10,000 critics of the government.
Third, the proponents rarely offer a historical account of when and how there was a transition from a free society to a movement toward a police state. This has to have been a judicial transformation.
Here is the problem. They must show that the jury system has been short-circuited. Yes, there has been a steady movement to undermine the jury all over the West for a century: the rise of administrative law. Harold Berman has sketched this in his Introduction to Law and Revolution (1983). But this is not limited to the United States, he argued. He issued a warning, but he did not say that we are headed toward a police state.
Fourth, they do not address this problem: emigration and immigration. Foreigners want to come here. There are good reasons for this. Most Americans are not interested in leaving. There are good reasons for this, too.
The promoters of “America’s looming police state” never consider Canada. The two nations are fraternal twins. I can think of no two nations that are more similar that share a border. They both are common law nations. They both have a system of independent juries. They both have elected representatives.
Their currencies rarely fluctuate much against each other.
Perhaps most revealing but rarely discussed, Canadians and Americans have very similar concepts of what is funny. Canadian comedians have made it big in the United States. Hardly anyone in the United States knows they are Canadians. Rich Little, the great impersonator a generation ago, was a Canadian. So was John Candy. So was Leslie Nielsen. Dan Ackroyd, Mike Myers, Jim Carey, Martin Short, and Michael J. Fox are Canadians. When societies share humor, they are close.
Is Canada also becoming a police state at the same rate that the USA is?
The existence of a long border that is almost unguarded testifies to contentment among citizens on both sides of the border. The last time there was a mini-exodus into Canada from the United States was in the Vietnam War. But Nixon abolished the draft in 1973. That is another piece of evidence that we are not heading for a police state.
A SEMI-POLICE STATE IN PAST WARS
Lincoln sometimes ignored habeas corpus. But he could not silence his critics entirely. He imposed a draft. But people could buy their way out for $300. The draft ended in 1865.
Wilson imposed a draft in 1917. His government locked up critics of the war. But his legacy was repudiated after 1920. His government arrested anti-war socialist Eugene Debs. Wilson announced: "While the flower of American youth was pouring out its blood to vindicate the cause of civilization, this man, Debs, stood behind the lines sniping, attacking, and denouncing them. . . . This man was a traitor to his country and he will never be pardoned during my administration." He kept his word. Harding commuted his sentence in 1921. He went beyond this. He invited Debs to the White House. This was a symbolic repudiation of Wilson's suppression of civil liberties.
The USA had semi-police states during those two wars. It also had suppression of ideas in World War II. But after World War II, criticism of wars became common. Despite the rise of the surveillance state under Truman – the so-called Deep State – we have had nothing like what we had in the Civil War, World War I, or even World War II.
There is a good reason why the Left is apoplectic about what is happening to the Supreme Court. Trump is about to secure a 5-4 majority. If the Republicans can hold the Senate, and if Ginsburg should depart from the Court before 2021, the Left will be in despair. They are already in despair. Read this tirade against Kennedy for his resignation. It appears on The Daily Beast. They can see where the Court will be headed. Why such despair? Because the Court's decisions will move away from centralization.
Police states are centralized.
A BANKRUPT WELFARE STATE IS NOT A POLICE STATE
The U.S. government will default on Social Security and Medicare. This is statistically inevitable. When this happens, the government will lose legitimacy. It will lose much of the spirit of cooperation that persuades citizens to obey.
There will be a search for political scapegoats. I quote Pogo Possum: “We have met the enemy, and he is us.”
This has been a bipartisan disaster. I quote Scott Burns, the co-author with Kotlikoff of Spend 'Til the End. "The only truly bipartisan cooperation in Congress is that both sides lie."
There will be a loss of faith in the central government. Money and therefore authority will shift toward state and local governments. This will erode any police state. But there is no police state to erode. There is only a blind, uncoordinated bureaucratic maze in Washington.
THE DEEP STATE
If the Deep State is so powerful, why is Alex Jones still alive?
If the Deep State knew what it was doing, how would Edward Snowden have pulled off his public relations coup?
They snoop. But what do they do with all these files? Not much. It takes human beings in authority to issue orders. It takes a willingness to place one's career at risk. Courage is always in short supply in bureaucracies.
THE INTERNET
Almost everything is moving toward greater decentralization. There are a billion websites. Facebook lets people share their ideas to like-minded citizens.
There was no Internet in Nazi Germany or the USSR under Stalin. The USSR was brought down in 1991 because of FAX machines.
The gatekeepers are close to impotent. This has been true for two decades.
On what basis institutionally could a police state be implemented today? Where? Not in any nation with high-speed internet service.
GUN OWNERSHIP
Do the promoters of "America as a police state" ever discuss the widespread ownership of guns in America? Of course not.
I want to hear about the USSR, Nazi Germany, and Red China with respect to the ownership of guns. What police state ever authorized the widespread ownership of guns? I want to hear a definition of the police state that discusses this issue. Until then, I regard the whole topic as silly.
CONCLUSION
When you read an article about the looming police state, ask these questions.
1. Who is the author?
2. What books on law and American history has he written?
3. What evidence from American legal history does he provide?
4. Are these sources (if any) credible?
5. When does he date the transition to a proto-police state?
6. What historical causes does he offer?
7. Does he define "police state"?
8. Does he show a pattern of escalating suppression of liberties?
9. Does he name anyone voicing anti-Washington sentiments who is in prison for this?
The case for a looming police state has to be a case for the demise of the jury system. I do not see this in any common-law nation.
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