Commentary

What if discretion is our recourse?

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(If you read my column “Have We No Recourse?”, this column is intended as a sequel to that one.)

To set the mood before I drone on:

Much of Orwell’s keenest insights concern what totalitarianism is incompatible with.  In his 1941 essay “The Lion and the Unicorn,” Orwell writes of “The totalitarian idea that there is no such thing as law, there is only power…” In other words, laws can limit a ruler’s power. Totalitarianism seeks to obliterate the limits of law through the uninhibited exercise of power.

As I often do in cases like this, I turn to the dictionary to help provide understanding and clarification of terms; especially those with multiple, even disparate meanings.  “Discretion” is such a word.  We most often hear of it in the legal and judicial realms of our governing apparatus. Prosecutorial discretion, judicial discretion, and so on. If you grew up thinking discrete, the root of discretion, meant mostly being subtle and not drawing undue attention, as in “ask around, but be discrete,” you would be mistaken, just as I was.  There is, in fact, another form of the word: discreet.  Embarrassingly, I never knew that. It should have been used in the “ask around….” example above.  Then of course, there is “ask around, but use discretion.”

Without boring you further, the word “discretion” blends the meaning.  Worse, however, is that discretion is closely related to discrimination, which has its own, often unpleasant, connotations.

Which reminds us that discretion works in both directions, doesn’t it?

But today I see discretion in a more negative light.  They say power corrupts, and absolute power corrupts absolutely.

The same could be said of discretion.  Discretion corrupts, and absolute discretion corrupts absolutely. 

Let’s look at the forms of discretion around us, whether we recognize them explicitly as such or not.

  • LEO discretion: Should I pull that person over?  Should I approach that person and question them?  Should I issue a citation or a warning?  Should I arrest them or not?  What violations should I cite for my actions? Will I be video bombed?  Will I lose my job?  Will I go broke paying for lawyers?
  • Prosecutorial Discretion: Should I indict this person or not?  If not, why not?  Will it help or hurt my higher ambitions?  Will I be seen as woke and a supporter of social justice, or just the opposite?  If I do indict, what should the charges be?  What sentencing should I request within the guidelines?  Should I ignore the guidelines? How will I be treated by the media, both print and broadcast?  How will my decisions influence the “temperature” in my community?
  • Judicial Discretion: Should I summarily dismiss this case?  If not, should I recommend the charges be modified?  How should I advise the jury?  How will the outcome affect my pursuit of higher office?  How will I be treated by the media, both print and broadcast?  How will my decisions influence the “temperature” in my community?
  • Politician Discretion:  How will my position on this issue influence my media coverage, both good and bad?  How will it influence my prospects for re-election?  How will it affect my ambitions for higher office?  How will it affect the support of my financial backers?  How will my prestige in the heirarchy of the swamp be affected?
  • Presidential Discretion:  Which policies of my predecessor should I rescind?  How should I thank my hardworking supporters and donors?  What offices should they get whether they are the best choice for the job or not?  How do I balance the interests of the country with my own self-interests?  How do I make it known that I need serious help in a situation without appearing weak and feckless?  Who will I let control me in every thing I do?

You get the idea.  Given all the laws we have in place, the principle of equality under the law, and the premise that we are a nation of laws (instead of a monarchy), there is wiggle room beyond measure. With widespread disregard for the very laws themselves, and all the other forms of “discretion,” the concept of a nation of laws has become increasingly a false facade for the American experiment.  Vast organizations and innumerable individuals go to work each day wondering how to get around the law, or how to bend it to their will within the boundaries of “discretion.”  And the overwhelming majority of these are “public servants” who are oath and honor bound to uphold the law to the best of their ability.

I now see us not as “a nation of laws,” but “a nation with laws.”  And that is a profound difference.  We must accept that legislative, prosecutorial, and judicial leniency (aka discretion) is the handmaiden of the lawlessness in today’s America.

The specific term “the rule of law” came about to distinguish our founding republic from the rule of a monarch it left behind.  Yet increasingly, those who have discretion on application of the law are ipso facto rulers.  We effectively live under “a collective monarchy,” the sum of government in all its forms.  There is no shortage of those who see themselves as kings and queens, or at the least princes and princesses, especially in the highest levels of our elite ruling aristocracy.

Average folks not in government, or in a preferred demographic, special interest, or favored identity group, are expected to conform with every last word of our volumes of laws.  And as the riots of 2020 and January 6, 2021 protestors prove, government has discretion not only to be lenient in application of the laws, but to be overbearing and vindictive in its use as a deterrent and as a badge of virtue, especially in election years.

We are, in truth, selectively a nation of laws, because of the collective discretion in its application.  The dogma that “no-one is above the law” is pure, unadulterated poppycock.  It’s a noble concept, but if it’s only true for some, the creed is false on its face.  As I said, a collective Monarchy controls our lives.  Accountability under the law?  Are you kidding?

In the last two years we’ve seen “ordinary citizens” in “peaceful protests” exercise their discretion to destroy public and private property, set neighborhoods and such on fire, kill police and innocent bystanders, and pay no price for it.  We have seen peaceful citizens by the thousands caught in the cross-fire of neighborhood gun battles.  And they want us to believe that our system is based on accountability?

I won’t go any further detailing the specifics of discretion each of the following categories have in the performance of their responsibilities.

  • Administrative discretion
  • Election official discretion
  • Criminal discretion (which business or individual should I victimize?)
  • Jouralistic discretion
  • Truth discretion (post modernism, anyone?)
  • Factual discretion
  • Big tech discretion (social media, in particular)
  • Academic discretion
  • Public school bureacracy discretion
  • Border official discretion
  • IRS, FBI, DOJ discretion
  • Public outrage discretion
  • NGO discretion
  • Private residence discretion (tent cities on sidewalks, parks, etc.)

As you read this, you surely thought of your own additions to the lists above, and added “nuance” to the forms of discretion I’ve mentioned.  Perhaps from your own experience with the individuals cited.

Virtually everyone at every level of governemt has a position that is almost certainly the result of specific laws and constitutions.  And their responsibilities, on their face, derive from laws in effect.  Yet everyone in government has discretion when it comes to the law and the obligations of living in a “nation of laws.”

So what discretion do we subjects have?  How do we look to discretion to balance the scales of “the rule of law?”  Here are just a few ideas.

What about LEO discretion to disobey unlawful orders?  When their mayors tell them to “stand down” and let “peaceful protestors” burn and loot and destroy to express themselves, how about if they disobey and honor the oaths they took?  And in the process, honor and serve the public they were hired to protect?

What about discretion of ordinary citizens not to pay taxes?   Property taxes, local and state income taxes, federal income taxes, and the like?

Here’s an idea: if we did fail to pay them, cite us for failure to follow the law, and give us a request to appear in some court two years from now.  Just like illegal immigrants are held accountable to the law.

What about affirmative action for us?  Is there anyone more discriminated against than the law-abiding taxpayer?

What about reparations for us, for having to support those who willfully break our laws without consequence?  And in the process, raise the cost of living of all honorable citizens in ways too numerous to count?

Before I reach the grand finale of this column, I’d like to post related wisdom from others more qualified than me.

  • “The welfare of the people……has always been the alibi of tyrants…..giving the servants of tyranny a good conscience,”   Albert Camus.
  • In Orwell’s 1942 essay “Looking Back on the Spanish War,” Orwell argues that totalitarianism must deny that there are neutral facts and objective truth. Orwell identifies liberty and truth as “safeguards” against totalitarianism. The exercise of liberty and the recognition of truth are actions incompatible with the total centralized control that totalitarianism requires.

Shortly after my “Have We No Recourse” item was published, a keen and attentive reader wrote to remind me that I had failed to inform readers of the recourse described by our founders in the Declaration of Independence.  And so, I post it here to remedy that grievous omission on my part:

From The Declaration of Independence

In Congress, July 4, 1776

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,

That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.

But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security…”

A final note: I am convinced that we live in a thoroughly and deeply corrupted American nation; and that the world at large is similarly afflicted.  I know of no viable way to reverse this reality.  If this makes me a defeatist, I suppose I’ve earned it.

But if the rule of law is a hollow sham, how shall we have order, liberty, and unalienable rights?  Can we hope and pray that a new cadre of Founding Fathers will come to make us the city on a shining hill we once were?  Is rebirth of the American Experiment something we can tell our children, grandchildren and beyond that they can hope for and watch for?

About Pem Schaeffer

Pem Schaeffer is a retired engineer who progressed to a position in business development leadership in defense electronics. He lives and writes in Brunswick, Maine, and blogs at: http://othersideofbrunswick.blogspot.com/ He can be reached at pemster4062@yahoo.com or you can always buy him lunch at a Maine Policy Institute luncheon. He's easy that way, and he'll still respect you if you do.

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