Yesterday, I wondered whether anybody in the Obama administration knows what the word “draconian” means. I do not think that they do.
“Draconian” refers not to the political structure of a race of Doctor Who? aliens, but to the Athenian lawgiver Draco, who lived during the seventh century b.c. and gave the Greeks an important innovation: written laws. Prior to Draco, the Athenian law was only an oral tradition subject to ad-hocracy resulting in blood feuds. Draco had the laws carved on tablets and displayed in public, so that nobody would be ignorant of them. This was an enormously significant milestone in Western culture, an important move toward what we now call the rule of law, away from the code of arbitrary power and might-makes-right justice. Draco’s laws contained some important innovations, such as distinguishing between murder with malice aforethought and other kinds of homicide. That was a pretty big deal in an era during which the inhabitants of the British Isles, under whose culture the rule of law would reach its most sophisticated expression, were still a good ways away from writing much of anything at all.
Draco’s laws were, alas, a little harsh: The death penalty was common for many minor offenses and a great many major offenses. Plutarch reports:
Death was the punishment for almost every offence, so that even men convicted of idleness were executed, and those who stole pot-herbs or fruits suffered just like sacrilegious robbers and murderers. So that Demades afterwards made the joke that Draco’s laws were not written with ink, but with blood. It is said that Draco himself, when asked why he had fixed the punishment of death for most offences, answered that he considered these lesser crimes to deserve it, and he had no greater punishment for more important ones.
The written law was a step toward political equality, but that goal was still pretty far away for Draco and his contemporaries. One of the notable features of Draco’s laws was that debts were handled differently depending upon the relative social status of the creditor and the debtor. A lowly man who owed money to a highborn man could be forced into slavery for his creditor, but the reverse was not true. Plutarch informs us that one of the celebrated Solon’s great reforms was the abolition of debt slavery.
Unhappily for us, we have in our constitutional jurisprudence managed to reinvent the pre-Draconian oral law (what the hell do you think a “living constitution” is, sunshine?) while enshrining its class distinctions.
Consider, for instance, our treatment of debt. Most debts can be discharged in bankruptcy, but there are exceptions, most of them debts to the state, including (famously) student loans, taxes, fines, and government fees. Debts that are not owed to the state but ordered by the state, including restitution, court-ordered child support and alimony, etc., are generally held to be sacrosanct. (Alimony and child-support debts are a particularly difficult subject, given the history of parents’ being required to make payments that are wildly disproportionate to their income, or even exceed it, fathers being threatened with jail time over missed payments for children that turn out not to be theirs, etc. New York recently has moved toward reforming its particularly bad laws on that subject.)
It may be that we are too lenient with some kinds of debt or too strict with others, but it is difficult to elaborate a standard holding that debts to the U.S. Treasury automatically enjoy a higher standing than debts to Bank of America without accepting an implicit rule that the state is simply more important than its citizens — a class above the commoners, if you will.
It isn’t just debt. In most states, assault is a more serious crime if you assault a government employee than if you assault a citizen. We’re all familiar with that rule as it applies to police, but in Utah, for example, that principle also applies to elected officials (and nurses, interestingly enough). In New York, it is a more serious crime to assault a subway engineer than it is to assault a subway passenger. New York even runs a bounty system for those who assault transit workers, a measure it does not offer for commoners. At the same time, you can videotape the comings and goings on a public street to your heart’s content — unless you videotape a police officer at work. Police routinely arrest citizens for videotaping them in action in public, even though the federal courts have ruled that citizens have a First Amendment right to do so.
The most dramatic illustration of this principle can be seen in action as the Obama administration pulls out all the stops to prosecute those who leak classified information while the administration itself leaks classified information as a matter of course, operating from the unique jurisprudence of Richard Nixon: When the president does it, it isn’t illegal.
Draco’s code dealt mostly with things like murder and debt, and the Athenian government of the time, imperfect as it was, had very little interest in telling citizens whether they could add a room onto their homes or direct the education of their own children. The entire Draconian legal code was an improvement on what preceded it, and it was less expansive than some of the footnotes to Obamacare.