'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.
