24 August 2016


'When the Apocalypse Comes Will Anything Change?: Gay Marriage, Black Lives Matter, and the Rule of Law' by Andrew Chongseh Kim in (2016) 3(1) Savannah Law Review comments
Most conceptions of life after the apocalypse, be it nuclear,  zombie, ; natural disaster, or otherwise, are dominated by a single image: lawlessness.  After society collapses, the rule of law ceases to function. Whether one person owns a particular house no longer depends on clean title, the statute of frauds,  nor whether the person’s adverse possession was “open and notorious.”  It depends mostly on whether that person has enough guns to keep everyone else (or everything else) out. To be more precise, after civilization falls, a person’s individual rights will be limited to those rights one can enforce with force, and those rights others are willing to respect voluntarily. Beyond statutory law, common law, or even “natural law,” this is a law of nature.  Although the laws of nature will become more obvious after the apocalypse, they are as true today as they will be when civilization falls.
Under the laws of nature, rights and laws matter only to the extent they are enforced. People scavenging for food in empty supermarkets will rarely pause to ask whether the corporation that owns the store has abandoned its property interests in the Twinkies on the shelves.  Rather, they will simply take what they  want, ignoring niceties like shoplifting laws or words like “felony burglary” that currently have great meaning. Similarly, desperate men and women who encounter others with useful goods will often try to take them by force. When one person is willing to kill another for that person’s possessions, the true owner of those goods depends not on who invested personal labor to create the goods, or who captured the goods from the wild, but on who is stronger. 
Even when zombies walk the earth, however, most people will not simply shoot everyone they see. For example, even the most ruthless woman might hesitate to take a gun belonging to another, particularly if that gun is loaded and pointed at her. Others will voluntarily respect the rights of others, believing that it is wrong to take from others even if it would be convenient for themselves. Finally, people will often decide that they will be better off working together, even if the terms of working together are not as fun or fair as they would like. These principles of the laws of nature (force, voluntary respect, and communality) help us understand the character of the rule of law today. First, with respect to the vaunted rule of law, consider a few United States Supreme Court cases: Bush v. Gore, King v. Burwell, Obergefell v. Hodges, Ledbetter v. Goodyear Tire and Rubber Company, and Korematsu v. United States. Almost all readers familiar with these cases can point to at least one case they believe was not only wrongly decided, but one in which they believe the majority opinion flouted the rules of statutory and constitutional interpretation the Justices of the Court have sworn to uphold. Although the decisions in many ways flout the rule of law, they are obeyed as law, even by most of those who disagree with them. Why do almost all of us obey and follow laws we think were enacted or enforced in contravention of the law? One can speak of the legitimacy of the process used in creating the laws, or faith in the democratic process to correct major errors. Ultimately, however, the answer comes down to the fact that, for most of us, the costs of resisting laws we find illegitimate are simply higher than the costs of cooperating with what most accept is the law. For example, the Affordable Care Act (ACA), colloquially known as Obamacare, requires most large employers to offer health insurance to their full - time employees. Although some employers have attempted to reduce their obligations under the ACA by reclassifying employees as part - time, it appears that few, if any, major employers are choosing to ignore the law completely.  Given the uproar of people who claim that the ACA is unconstitutional,  it is unlikely that this massive compliance can be explained because everyone believes that the ACA is legitimate.   Rather, they follow the law because a majority of the Court has ruled that the ACA is constitutional,  and employers are generally quite certain that, right or wrong, the government would impose large penalties upon those refusing to obey the law. Moreover, they know that the relevant government agents and banks would cooperate in collecting those penalties as well. As a result of this national consensus that rulings by a majority of the Court will be followed, a consensus of five people dressed in rather simple robes largely have the power to impose whatever law they choose. As such, the laws of our entire country can be, and sometimes are, determined by a tyranny of five.
At the same time, however, today, just like after the apocalypse, people sometimes refuse to obey the rules most of us choose to follow. Whether the rules people flaunt have any meaning depends on whether, and to what extent, they are enforced. For example, Brown v. Board of Education  declared school segregation unconstitutional.   Nonetheless, many schools remained segregated for years after 1954, because state and local governments, as well as common citizens, resisted, often with violent force.   Indeed, it was not until 1963 that the first African - American students enrolled in previously “white” Alabama schools, and only after federal authorities called in armed soldiers to face down the state patrolmen and angry civilians who aggressively enforced segregation.  Although African Americans had a right to a desegregated education under the Constitution, they did not have that right in any practical sense until those rights were enforced by government might.
In Part II of this Article, I explain the nature of laws and governance after the apocalypse. In Part III, I argue that the laws of nature are fundamental to our society and, indeed, have been recognized in our courts and society today. Lastly, in Part IV, I explore two important timely issues, same - sex marriage and the Black Lives Matter movement, in light of the laws of nature.