I had the telescreen droning away in the background the other night when I should have been listening to Mozart, and the History Channel was rerunning one of its documentaries on Prohibition for what seemed like the thousandth time. I was concentrating on some e-mail and not paying much attention, but the narrator's stock comment about how Prohibition damaged the ordinary citizen's respect for law did register, and for the thousandth time I duly wondered what damage the Permanent Drug War of our own time has inflicted on respect for law. But then something occurred to me not for the thousandth time but, strangely enough, for the first time. I'll get to it, but I have to start by preparing the ground.
Like any entity acting in a universe of scarcity, the regime incurs costs when it violently intervenes in society. And like any entity acting to maximize utility, it calculates that its gains will outweigh those costs. As I've suggested before, the ruling class endorsed the original Prohibition experiment in hopes of uprooting local saloon-based political machines and disciplining a corporate workforce heavy with immigrants who enjoyed lifting a glass. But with respect both to its stated aim of Moral Uplift and its actual aim of proletarian sobriety, Prohibition came to be considered a costly failure, and in due course it was repealed.
The official regime the one eternally clanking away in Washington with its busy pols and bureaucrats did reap some lasting gains, though. Although the Prohibition Bureau was abolished, or, rather, folded into what eventually became the ATF, citizens were now much more accustomed to seeing "federal" i.e., Central Government secret-police agents suddenly identify themselves, brandish guns, haul people away, and seize or destroy property. The Narcotics Bureau and the FBI (as the Bureau of Investigation) both existed before Prohibition was imposed, but the Prohibition Bureau fertilized much psychological and institutional soil for the growth of its longer-lived bureaucratic partners. (An interesting historical sidelight: Prohibition agents were authorized to carry firearms long before FBI agents were.) After national Prohibition was cut down, a bewildering variety of local Prohibitions and partial Prohibitions cropped up where it once stood, providing jobs for another host of bureaucrats and an excuse for additional taxes to pay their salaries.
Surely the ruling class didn't object to increased police powers being placed in the hands of the various levels of government. Still, to us moderns Prohibition looks like a domestic Vietnam, not only because it spurred the growth of organized crime but also because millions and millions of ordinary Americans made a habit of violating it. The ruling class as it existed in 1933, the year of repeal, no doubt placed that mass uncivil disobedience in the "costs" column instead of the "profits" column.
However, circumstances change. Ruling classes that survive learn to manage and adapt to change. And it occurred to me, as that History Channel rerun droned on, that our modern ruling class just might want to switch a widespread contempt for law from "costs" over to "profits."
Our rulers' Permanent Drug War has reaped much that we mark down in their "profits" column without hesitation. The war has accelerated the maturation of the American police state. It has hammered to pieces bulwarks against invasive state power that were erected by the Constitution in theory and that were actually defended, oftentimes, in the golden light of our libertarian culture during its long sunset.
However, such a total war, prosecuted decade after decade with no end in sight, has entailed certain costs for those waging it, costs that were predictable given the history of alcohol Prohibition and that could be minimized if the modern war were fought just a little differently. For example, the national Establishment's unyielding, absolutist position on marijuana in the face of widespread pressure by peaceniks in medicine, local law enforcement, and its own intelligentsia is surely unnecessary for the success of its great totalitarianizing project. Most of the Central Government's own repressive machinery, in fact, is employed against other drugs. Why put up with all the guff that the mania over marijuana engenders? Why forgo all the potential tax-robbery that could be perpetually inflicted on Northern California weed growers? It's true that all smoking has now been demonized, but you might expect a rational totalitarianism to do just what "moderates" on the issue suggest: legalize marijuana so we can treat it like tobacco tax it, control it, regulate it, and Keep It Away from the Kids.
A Drug War that is unnecessarily total even to the point of engendering contempt among a great proportion of the ruled starts to make more sense if you change your assumptions. Far from displeasing them, it may actually please our rulers to rule a population that holds law and the rule of law in contempt. Once again I rely on the vision of George Orwell, and, in so doing, once again I have to say that his genius continues to unfold with every passing year. In 1984, Winston Smith begins a diary, an act which if detected "would be punished by death, or at least by twenty-five years in a forced-labor camp." The narrator stipulates, however, that the act of beginning a diary was not illegal "nothing was illegal, since there were no longer any laws."
When I first read that, I didn't get it. No laws! why, that's anarchy, not totalitarianism. Surely a mature totalitarian state is nothing but laws! But I was not yet a mature libertarian, and I had it all backwards. What Orwell understood, and I didn't, was that totalitarianism is fundamentally lawless.
Under the old American regime, the proportion of statute laws that attempted to reflect natural law implementing, at least notionally, the rights to life, liberty, and property was still somewhat considerable among the whole. Such laws were a minority, certainly, but they had not yet been utterly swamped by fundamentally unjust positive laws, or, as I like to say, "laws." In a mature or maturing totalitarianism, on the other hand, laws that an Old Republican would consider real laws make up an infinitesimal fraction of the total.
So many "laws" are on the books and so many regulations having the force of law are in place that no one, not even lawyers, can really say what the law is from day to day. Corrupt officials have always tried to enforce statute law selectively, but now it must be enforced selectively. And with bureaucratic regulations, it's even worse. They are positively protean both in their enforcement and in their very substance: a regulation is emphasized this week and de-emphasized the next; rewritten the following week and replaced the week after that. In effect, there are so many "laws" that there is no law. What we are left with is a lawless tyranny that rules by means of the carrot and the stick.
Widespread respect for law and the rule of law once served the purposes of the Higher Circles; it was useful for manipulating those it ruled, when positive "law" could easily be played against more-authentic law that most people knew about and relied on. For example, unjust positive "laws" awarded special privilege, and then, in order to keep their unjust fruits, the privileged sought recourse in settled common law upholding private property.
The courts still often uphold property, both just and unjust, and indeed the ruling class still needs the official regime, through its courts, to recognize its unjust property as just. But the idea of property as a right is drifting out of the mental universe of ordinary people. Not only children but also many adults casually engage in theft, trespass, and vandalism without recognizing those offenses as such, and react with astonishment when property owners object.
The official regime nowadays cannot desire ordinary people to respect old ideas of law, because ordinary people might wind up expecting their rulers to respect those ideas, too, or at least appear to respect them; and the pretense of respecting law is simply becoming impractical, as we saw with the Clinton impeachment fiasco. (That was truly an important lesson for the citizenry, especially the younger generations. Was it intended as such?) It would be difficult to rule a people with old-fashioned expectations about respecting law, and, we ought to note, it would also be difficult to recruit from them. The matter of recruitment is not a minor one, for under a Polite Totalitarian regime, servants of the state include not only a few million official government employees but also scores of millions of ordinary citizens who perform their service unofficially and, to a great extent, unsupervised.
In return for its own lawlessness, the total state must be prepared to tolerate a high level of disorder among its subject population; and so it does, as long as its subjects stick to cutting each other up and don't threaten the state. But disorder is more than a mere tolerated by-product. The total state virtually rules by disorder, which is another way of describing its lawlessness in practice. In the absence of reliable, publicly accessible, widely understood law, we are left with the war of all against all, as we trample each other underfoot to grab that dirty, broken, black-spotted carrot the state dangles, now over this knot of struggling subjects, now over that one over there.
There's no need to make a conspiracy out of all this. Certain systems entail certain imperatives, certain priorities. When systems change, the imperatives and priorities change, too. What was important for the ruling class in the waning days of the Old Republic isn't necessarily important for them now, and the reshuffling of the agenda doesn't have to be any more calculated and deliberate than the gradual regress of that chunk of leftover pizza to the back of your refrigerator where it reposes, slowly decaying, until you finally throw it out, grimacing in disgust.
Fewer and fewer ordinary Americans find themselves able to take the vestigial republican hoopla at all seriously. And the younger they are, the more likely that is to be true. In previous columns, I've struggled toward understanding how ordinary Americans could possibly continue to consider the total state legitimate. I started out assuming that a popular perception of legitimacy was a crucial labor-saving device for any regime at least for a regime ruling a country without ancient traditions of absolutism. In absolutist countries, Tsarist Russia, for example, the very question of the regime's legitimacy as Americans have traditionally understood legitimacy would strike most of the ruled as bizarre. It would be like inquiring into the legitimacy of the sun.
Americans, on the other hand, originally believed that their Republic was something new under the sun. The mystification purple robes, glittering crowns, sonorous incantations practiced by primitive ruling classes was intended to convince their victims that the regime was, is, and always shall be, just like the sun. There was no question of the regime's "rightness"; like the sun, the regime was created and sustained by God. Mystification as practiced by the old American ruling class, though, sought to convince the ruled that the regime was legitimate insofar as it seemed to arise from the people and insofar as it seemed to confine itself to a carefully limited sphere and seemed to refrain from trampling on the carefully limited liberties of the people.
As I have continued to dig into the question, my premise that a popular perception of legitimacy continues to be necessary for the U.S. regime has started to look more and more questionable. As the nature of the regime has changed, so has the psycho-cultural environment in which it operates. Undoubtedly, it is still necessary that most Americans look on the regime as being very different from Tony Soprano's outfit. It does not necessarily follow, though, that the ruled must consider the gang in Washington and New York as more legitimate in any recognizably republican terms.
To a degraded, lawless population, nothing succeeds like material success, and nothing impresses like Power successfully wielded and booty successfully seized. The official regime is astronomically more powerful than the Sopranos; unlike the Soprano gang, it is practically inescapable unless you're prepared to emigrate to outer space; and, unlike the Sopranos, it will cut you in for a little taste of the swag if you promise to shut up and behave.
That's probably enough, assuming you can get a lot of people to develop a taste for moldy carrots.
August 4, 2000
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