The independent judiciary; guanxi; that new church smell

Published 2017-02-13

While calling the office of a local elected official this morning, I walked through their lengthy phone tree full of boring legal administrivia (“for notary registry and corporate reporting paperwork press 1”). The experience reminded me how an independent judiciary (and, not unrelatedly, independent bureaucracy) maintains the smooth running of a society. And not just a “free” society — but a stable and prosperous one.

Imagine what would happen if a contract could be retroactively voided because the more-powerful party decided it was not in their interest to honor it, knowing that any judge who heard your suit could be bought or intimidated into silence. Imagine if that happened to:

  • your mortgage
  • or car loan
  • or health insurance contract
  • or phone service plan.

Now imagine that the more-powerful party is the government, and the legal document in question is

  • your business' incorporation papers
  • or construction permits
  • or title to real estate
  • or voter registration
  • or passport
  • or citizenship papers.

Issues of justice or freedom or constitutionality aside, can you see what effect this would have on our nation's ability to do business? Would you want to do business in a country where the rule of law was subject to arbitrary revision? Would you want to contribute to intellectual property registered in that country? Even if none of those scary things happened, consider the threat that they might happen… What effect would that have on owning a business or making investments?

I used to live in China, so I saw this in action, albeit at a privileged remove. The Chinese word is “guanxi (“connections”) and it means not just greasing palms but watching whom you cross. It values making connections above hard work. And knowing that at any minute, your interests and hard work could be undone by someone with more guanxi — explicitly: someone with better connections to the Ruling Party. The Ruling Party barely has to cough to keep everyone in line, because everyone with any interest is already looking over their shoulder. Second guessing how their actions might run afoul of someone with more guanxi, all the way to the top of the ladder.

Much of world operates (has always operated) like this. Which is why much of the world is a lousy place to be a citizen or to do business, and why America holds the de facto global reserve currency — to our enormous benefit! We can build highways and football stadiums on the cheap (with municipal bonds) because investors trust that the complex web of laws that we have grown over the last 240 years will operate next year the way it did last year. Chinese investors trust the results of our judiciary more than they trust their own!

America’s (hitherto) unshakeable rule of law and an independent judiciary plays no small role in the financial & social stability that every living American has known their entire life. Even during the Depression, America was one of the safest financial bets on Earth. An independent judiciary has more positive effect over your daily life than either than a free legislature or a constrained executive.

Early in my new campaign as a nonstop fascism-resisting machine, a longtime activist gave me the extremely helpful advice to pick my battles. (More accurately, what she said was, I quote as best as I can: “the activists I know who are happiest and most successful and don’t burn out, they choose just one fight. Then they trust that all the other things they care about, other activists are making those THEIR fights.”)

I’m having trouble narrowing down to just one fight (I’m down to about three now)…but “judicial independence” is central to all of them. Much of what Republicans are rolling back, has been rolled back before, and we can roll forward again. But that will be nearly impossible without the cornerstone of a stable — let alone just or equal or free — society: an independent system of law and adjudication. And there’s one organization that’s taken on a lot of this fight, with good odds and good results: The ACLU.

In fact, it was exactly one week after the election, that I attended the ACLU Oregon Annual Meeting. This was a major turning point in the dark emotion I felt the day of the election. The meeting was held in the main sanctuary of the First Unitarian church — which holds 600 people, and was packed. With people watching the livestream in two other big rooms onsite. And thousands more watching online. This was my first ACLU annual meeting, and I heard from more than one source that attendance was a magnitude greater than usual. I saw I wasn’t alone; there were avenues to victory.

(And…personal sidebar…I can’t discount this: it smelled like a church. That familiar church smell pinged something primal way deep down in my limbic system. I had a whitebread mainline Protestant upbringing but it didn’t take. I am a lifelong atheist. The Sunday after that ACLU meeting, I attended my first non-Easter, non-Christmas, non-funeral, non-wedding church service in 20(?) years at that selfsame location. On that first Sunday at my new church(!) I broke down crying. There is a whole ’nother blog post packed in this sidebar, eh?)

If you do only one thing to #RESIST — please join the ACLU