The One That Got Away

by: tim dunkin | published: 12 30, 2011

If nothing else, Carlos Rafael of New Bedford, Massachusetts will always have a whopper of a fish story to tell his grandkids, as he regales them with tales of the 881 lb. tuna that got away from him. Or rather, was taken away from him, as the truth of the matter really is. As the recent story in the news goes, back on November 12, a fishing boat owned by Mr. Rafael landed quite a catch when it brought in its nets after doing some deep sea trawling – the aforementioned tuna, a huge fish that would likely be worth close to half a million dollars. However, when Mr. Rafael’s boat came back to dock, federal agents seized the fish, taking it away from Mr. Rafael without any compensation whatsoever other than the threat of a large fine. The reason? The tuna had been caught in a net, rather than by a hook or harpoon, illegal per some subparagraph buried deep in the bowels of the official book of rules and regulations governing American fisheries. The fish, reportedly, will be sold overseas and the proceeds being given to the National Oceanic and Atmospheric Administration, presumably so that that bureaucratic morass masquerading as a scientific research organization can fund more studies purportedly discovering reasons why stricter and stricter regulations need to be further imposed on hard-working citizens like Mr. Rafael for…well, for reasons that nobody really knows.

Now, to most people – including Mr. Rafael himself who is an experienced deep sea fisherman – the arcana of federal regulations form an impenetrable and unfathomable fog that masks all common sense and reason with respect to why government makes many of the rules that it does. Why is it legal (with a license, of course) to catch tuna with a hook, but it is illegal to do with a net, even accidentally? Why do people like Mr. Rafael get robbed by bureaucrats with guns, and smacked with fines for catching a fish? The answer to that question, even if known, probably makes little sense to anyone outside of the small circle of environmentalist busybodies, inside and outside of government, who have made it their life’s mission to destroy any and all human activity that might in any way, shape, or form impinge upon the natural world (i.e. pretty much all human activity).

And therein lies the problem. The arcane and ridiculous little regulation that Mr. Rafael’s catch ran afoul of doesn’t exist because of government acting within any of its proper roles, such as keeping one citizen from harming another. Mr. Rafael catching an 881 lb. tuna doesn’t harm anyone else, after all. No, such regulations exist because of the lobbying efforts of very narrowly focused special interest groups who use their influence and money to craft government policy, both through legislatures and executive regulators, that benefits them or advances their agendas, while detrimentally affecting everybody else who might be a player in that particular realm of economic activity. Hence, in this case, because animal rights activists and others who are concerned about “biodiversity” and whatnot seek to limit the ability of fishermen to harvest tuna and other types of fish that are deemed “borderline endangered” or otherwise worthy of regulatory protection, these same fishermen end up being hooked and reeled in by federal regulators, being trapped in a net of rules and regulations that they were never even told about, and which exist only for the purpose of destroying their livelihoods so that some eco-terrorists can pat themselves on the back for “protecting” Mother Earth.

If we lived in a perfect world, this is the sort of thing that would get some federal regulators hauled up in front of a judge and tossed into the clink for violating Mr. Rafael’s 5^th amendment rights. Or better yet, such a corrupt and special-interest driven regulation wouldn’t even exist in the first place.

This is the sort of thing that helps to starkly clarify the distinction between “the rule of law” and “the rule of rules.”

Now, many people tend to assume that these two concepts are the same. If the government makes some rules, then they should be obeyed unquestioningly, since these rules are laws and if you support the rule of law, then you have to obey any and all government rules without challenging them, right? Well, no. Actually, there is quite a large difference between these two ideas.

The “rule of law” – note that the term is singular – presupposes that there are one or more fundamental, underlying bases for the legal system in which the participants are dealing or by which they are affected. In our system, this underlying basis is the Constitution, though I think there is a good case to be made for broadening this out to understand that our laws and civic practices should be predicated upon the liberty ideology that underlay the formation of our Constitution and the revolution for liberty that the American colonists originally waged. To give an example of what I mean by this, just take the Interstate Commerce Clause. This clause in the Constitution does exist, and it is there for a purpose. Congress is given the power by our founding law to regulate trade between the states. Nevertheless, the extent to which this clause has been stretched to allow the government to horn its way into basically any and all economic activity (or, in the case of mandating citizens to buy overpriced health insurance, even economic non-activity) goes far beyond anything the Founders ever intended when they included this clause in the Constitution, if their actual words in the Federalist Papers and other primary sources of commentary mean anything. If the wording of the Constitution on this point were interpreted through the lenses of what the Founders who wrote the document actually meant with it and through the standpoint of maximizing, rather than minimizing, liberty, then about 95% of what the government does that is justified under the “technically” plain wording of the ICC would end, and the clause would be restored to its pristine meaning and intention (which was to prevent states from levying protectionistic tariffs and other duties against each other, or otherwise interrupting free citizen commerce within the several States – believe it or not, the original purpose of the clause was to promote, rather than restrict, economic liberty).

What this all means is that our government should not be free to simply make up rules and regulations, or even properly legislated laws (from a “technical” standpoint), willy nilly as it sees fit. Laws, rules, and regulations that are not in accord with the Constitution and which do not advance the cause of liberty should be granted no respect or diligence whatsoever.

The “rule of rules” is just the opposite. It presupposes that the government – legislators, regulators, and other perpetrators – should be able to have carte blanche power to enact whatever sanctions upon the people and their livelihoods that are deemed necessary, for whatever reason. If a bureaucrat thinks we shouldn’t use a certain type of light bulb because it uses too much power and contributes to their mythological global warming, then Congress should pass a law, despite having no Constitutional authority to do so, and in fact, having the 9^th amendment as a positive block against such undue meddling in the affairs of free citizens acting freely. If, to the case at hand, some environmentalist ninny thinks that evil, stinky ol’ fishermen shouldn’t be able to take whatever fish they can catch on some spurious greenie concern, then simply lobby various federal agencies to enact regulations that will throw up so many roadblocks to their livelihood that they simply give up and find something else to do.

In short, the rule of law is designed to protect the liberties of the people because each of us would operate on the same playing field, is protected by the same laws that adhere to the underlying liberty framework upon which we were founded, and each has the same expectation as to what the law will or will not, should or should not, say.

The rule of rules, on the other hand, is capricious, depending on the whims of whatever bureaucrat can get into a certain position of power, and what their particular agenda is that they can use their position to advance.

In a rule of law framework, the power of government operates only as far as the foundational law allows it. In a rule of rules system, it operates as far as bureaucrats with nasty temperaments feel like going in their efforts to craft whatever administrative rules they like.

In a rule of law system, the police follow the Constitution and respect the 4^th amendment right of the people to be secure in their homes and effects. In a rule of rules system, the police get to bust down peoples’ doors in the middle of the night, like a bunch of Nazi stormtroopers, just to serve a warrant in prosecution of a “War on Drugs” that has no Constitutional authority.

In a rule of law system, the government is forced to respect the fact that a free people can arm themselves however they like. In a rule of rules system, the government gets to ban whatever weapons it can get away with politically, and place any number of undue burdens, taxes, license requirements, and other restrictions on private firearm ownership.

In a rule of law system, the government has to respect your 5^th amendment right to enjoy and be secure in your property and to require that due process be followed. In a rule of rules systems, federal agents with the EPA get to arbitrarily declare your property a wetland – without your knowledge – and prohibit you from using it in any way, shape, or form, without any sort of due process.

In a rule of law system, you can’t be imprisoned for a crime unless found guilty of it by a jury of your peers. In a rule of rules system, government agencies get to label you a “terrorist” and can direct the military to arrest you and hold you in detention indefinitely without ever charging you or bringing you to trial.

In a rule of law system, you are free to travel unhindered. In a rule of rules system, the government requires you to be sexually assaulted by its agents before you can board an airplane.

In a rule of law system, free people are free to conduct business with each other so long as they’re not hurting someone else. In a rule of rules system, you are not free to engage in consensual capitalism without any number of licenses, fees, and prohibitions.

So, the rule of law versus the rule of rules. Guess which sort of system we have now in America?

The question is, what are we as free people going to do about it? Are we going to sit idly by and watch our liberties go off into the sunset? Or are we going to fight for our liberties? Are we going to get serious about standing up and making our own government respect our Constitution and the liberty basis upon which it rests? Are we going to continue to vote for the same old set of establishment losers – under whichever Party label, it doesn’t really matter much anymore – or are we willing to support those candidates who will actually challenge the system? It all depends on whether we’re content to continue to be ruled by rules, or whether we’re going to stand up for the rule of law. The choice, ultimately, really is ours, regardless of how much the media tries to delude us and the government tries to suppress us.

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