Law & OrdureSeptember 13th, 2009

A candidate for the Connecticut bar is now asked on a state questionnaire whether in the last three years he or she has used an illegal drug. A friend of mine suggests that this is intended to be a test of basic intelligence, to find out whether anybody would be stupid enough to answer in the affirmative. He thinks it’s a way to cull out the obvious mental defectives.

My friend’s logic is compeliing, but I can’t help wondering what I would have said if I’d been asked that question in 1978 when I was admitted to the practice of law. How would this troubling qualification stand up to a cursory legal analysis? How would I advise a candidate for admission to answer the question?

I would recommend a long answer. The problem with the question is that it assumes that there is some black-letter distinction between legal and illegal. There isn’t. On the contrary, we have placed whole classes of culpable people above all law and used law to oppress and exploit huge numbers of blameless people. Enforcement tends to be strict against most of us and lax or nonexistent against the rich and powerful. Enforcement is often arbitrary, so that a mistreater of horses can call his endeavor the sport of kings, but a mistreater of dogs has do prison time. What’s kidnapping if you do it is preventive detention if done by an agent of government. What you know as torture is legalized by executive fiat as harsh interrogation.

A rational jurisprudence recognizes that arbitrariness in the enforcement of laws undermines the rule of law itself. When known offenders walk freely among us–torturers, killers, grafters and grifters–the rule of law must be considered in abeyance. As on the dusty streets of Dodge and Tombstone, the distinction between legal and illegal is blurred.

Consider the broad swath of personal conduct that might be considered illegal. Do I answer “yes” for having sipped a can of beer while driving to my mother-in-law’s birthday? What if my buddy mails me a couple of his Viagra? What’s legal? What’s illegal? If torture is legal, can a toke possibly be considered illegal? To answer the question “yes” or “no” is to set aside all notions of proportionality.

There’s a constitutional issue, too, complicated by the bizarre logic of the whole scheme. A state agency is requiring violators to incriminate themselves, and it’s also inviting them not to. Self-selection will tend to screen out the honest violators and accept the dishonest ones.

I’m no bar examiner, but from my point of view, this question explores, not whether anybody’s stupid enough to say “yes,” but whether anybody could be so devoid of principle as to answer the question at all.