The degree to which our media pundits fail to grasp the essential nature of the rule of law remains confounding, and this is another in a long line of examples. Worse, the lower court in this weird case failed to grasp it as well.
You see, there is conduct that is obviously wrong, which we call unethical. Some of that conduct is so wrong, so harmful, and so difficult to discourage with social opprobrium and informal enforcement alone that we pass laws against it, both to signal strong disapproval but also to add serious negative reinforcement, in the form of tangible punishment, to the mix. Then the wrongful conduct becomes both unethical and illegal. If we skip the essential intermediate step of writing and duly passing the law that designate the conduct as illegal, however, we have established a dangerous, indeed frightening precedent. Then we have created a society where one can be imprisoned or fined for conduct that is regarded as unethical without a law in place that empowers the state to take such actions against citizens who engage in it. Ethics, unlike law, especially on the margins, is never etched in stone. Once society starts imprisoning individuals based on ethics alone, none of us are safe.
Yet this morning I was subjected to the protests of one TV commentator after another who derided the absolutely correct decision of the Massachusetts Supreme Judicial Court to uphold this principle by throwing out the conviction of Michael Robertson, a sick sleaze-ball who was arrested in August 2010 by Boston transit police who had set up a sting after getting reports that he was using his cellphone to take photos and video up female riders’ skirts and dresses: Continue reading