After Charlottesville: The Retreat Of Law—And Law Schools
Print Friendly and PDF
[Adapted from the latest Radio Derb, now available exclusively on]

One problem underlying our present discontents—a problem that looms larger and larger in my mind the more I think about it—is what I think of as the retreat of law. Case in point: the August 11/12 protests in Charlottesville should never have been allowed to get so violent. There were a few hundred protestors on each side. The torchlight parade on Friday night drew (I think) about a hundred Alt Rightists. There were more on the scene Saturday, perhaps four or five hundred. Counter-protestors were about the same in numbers.

Only some proportion on each side were up for a fight, though. What proportion is hard to say, but we're probably talking merely dozens.

City and State Police and National Guard numbers were at least equal to the total number of demonstrators—I heard a thousand law enforcement officers altogether. If you subtract out the suit-and-tie Alt Righters, and the love-the-world church types and cat ladies on the other side, the numbers inclined to fight were way outnumbered by law enforcement.

So why wasn't the law enforced? Why weren't the streets of Charlottesville made safe for ordinary citizens? If I'm right about the fighting element numbering dozens, why weren't there dozens of arrests?

The question arises even more starkly in the subsequent destruction of a monument to Confederate soldiers in Durham. The whole thing was filmed at leisure as it progressed, with no police anywhere in sight.

Watching the jeering crowd kicking and stomping and spitting on that fallen statue of a Confederate soldier, I'm sure some of you were thinking the same thing I was thinking: How gratifying it would been if that fallen statue had sprung to life! What fun it would have been to watch these gentry-Liberal snowflakes, lifestyle pansies, and pampered Affirmative-Action toy poodles running screaming in terror from an actual Confederate rifleman!

Although, judging by the amount of morbid obesity on display there outside the County Courthouse, Johnny Reb would have had a target-rich environment to practice his marksmanship on.

Some eight people have already been charged in connection with the Durham vandalism, the charges ranging from misdemeanor defacing a public monument to felony riot, the perps identified from video footage. [4 more Durham Confederate statue protesters arrested; 8 total facing charges, By Lauren Haviland,  CBS North Carolina: August 17, 2017]

That's nice, I guess—but where was law enforcement while the riot was going on? Why didn't the city of Durham act to protect its property?

The answer in both cases: there are whole large areas of our public life where we just don't do law enforcement any more.

As Charlottesville and Durham illustrate, that certainly includes street-level police work by municipal and state level cops. These foot soldiers of everyday law enforcement know that in the age of smartphone cameras and Black Lives Matter agitators, their careers and even their liberty are in peril any time they confront a black malefactor. Better to stay in the donut house as much as possible.

This is commonly known as the Ferguson Effect. But in a season when naming things after people is much under discussion, though, I think it would be more apt to call it the Obama-Holder-Lynch Effect.

And police report to local politicians who are always looking to leverage incidents like Charlottesville and Durham to their own advantage. Their attitude: when AntiFas and Alt Rightists square off, best just let 'em go at it. The pols can be confident the Main Stream Media will report it as "a white supremacist riot," whatever the actual details, so public obloquy is directed at the Alt Right, not at the pols.

If they were to enforce the law, some black heads might be broken. Police brutality! Hands up don't shoot!

You know the script. From the point of view of a mayor, governor, or police chief, no action is the right action.

What I'm calling the retreat of law goes much deeper than just weak policing, though. Our entire Constitutional structure of law and law enforcement, the very underpinning of our social order, has been allowed to crumble and decay.

The common American understanding was, that the people elect representatives, who form legislatures and enact laws. Executive powers at municipal, state, and federal level then enforce those laws. Where disputes about interpretation arise, judges settle those disputes.

That's all out of kilter now. Consider this: A hundred years ago the long public debate about whether women should have the right to vote was framed as a Constitutional Amendment and offered to the states for ratification. The states ratified it and it became law.

We would never go to so much trouble nowadays. As we saw with same-sex marriage two years ago, Supreme Court justices just meditate a while, then find some new right lurking there in the Constitution somewhere, unnoticed by anyone for two hundred years.

What need for laws and legislators? What need to consult the citizenry? Why, some of them haven't even been to law school!

Likewise with war. Our Constitution reserves the right to declare war to Congress, the national legislature. But Congress last exercised that right in 1942 (against Bulgaria, I think it was). Been a long, peaceful 75 years, hasn't it?

Or take Affirmative Action. The 1964 Civil Rights Act declared among its purposes: "to prevent discrimination in federally assisted programs." But well-nigh all institutions of higher education take federal assistance; well-nigh all of them practice racial preferences in admissions.

And then of course there is immigration. We have lots of laws governing immigration. Those laws are so feebly enforced, we have millions—probably tens of millions — of foreigners living illegally in our country. They actually form a massive, well-financed political lobby. Congressmen agitate on their behalf . [Rep. Gutiérrez arrested at White House immigration protest, By Rafael Bernal, The Hill, August 15, 2017] State politicians offer them cut-price college tuition. So-called "Sanctuary Cities" turn a blind eye to their misdemeanors.

Laws? Law enforcement? Feugh!

The law is in retreat, has been for decades.

POSTSCRIPT:  I don't actually pretend to know that much about the law, being myself one of those clueless wretches who never went to law school. When obliged to apologize for my ignorance I summon the spirit of King Charles the First of England. That monarch said at his trial:

I do not know the forms of law; I do know law and reason, though I am no lawyer professed: but I know as much law as any gentleman in England.
In a nation of free citizens, the essential principles of law should be accessible to any citizen not an imbecile. We would just have lawyers to sort out the details.

But here’s an ominous story from modern Lawschoolland. My esteemed friend, Professor Amy Wax, who teaches at the University of Pennsylvania Law School, and  Professor Larry Alexander of the University of San Diego School of Law, recently published an article in the Philadelphia Inquirer: Paying the price for breakdown of the country's bourgeois culture, August 9, 2017.

It’s strictly Culturist, in the sense given in Chapter Seven of We Are Doomed: no hint of race realism, of the notion that there might be innate statistical differences between the races that prevent them having equal social outcomes.

All these two law professors are saying, though very eloquently and clearly, is that we don't sufficiently promote and enforce the bourgeois norms that give most citizens their best shot at a happy and useful life, and that help to keep a society stable and reasonably harmonious:

 [The country's bourgeois culture] laid out the script we all were supposed to follow: Get married before you have children and strive to stay married for their sake. Get the education you need for gainful employment, work hard, and avoid idleness. Go the extra mile for your employer or client. Be a patriot, ready to serve the country. Be neighborly, civic-minded, and charitable. Avoid coarse language in public. Be respectful of authority. Eschew substance abuse and crime.
You might think that's pretty bland stuff. On the University of Pennsylvania campus, though, it had the snowflakes running for their safe spaces.[ Campus is abuzz over Penn Law professor Amy Wax's controversial op-ed, which called for return of 'bourgeois' cultural values, By Natalie Kahn, Daily Pennsylvanian, August 13, 2017]

From the comment thread: "This is revisionist racist thinking triggered by Trump empowering redneck right wing ideology.” Wow!

Another commenter responded with the single word: "Troubling."

But Professor Wax doubled down in an interview with the college newspaper:

I don't shrink from the word, "superior." Everyone wants to come to the countries that exemplify these values. Everyone wants to go to countries ruled by white Europeans.
To keep on the Culturist straight and narrow, Professor Wax later qualified that with
Bourgeois values aren't just for white people. The irony is: bourgeois values can help minorities get ahead.

‘Not all cultures are created equal’ says Penn Law professor in op-ed

By Dan Spinelli, August 10, 2017

You can imagine the reaction to that.

"Just when you thought the Ivy League elitist culture couldn't get more racist or out of touch," sighed one commenter. Commenter Rich Rubin · said "You should be ashamed for promulgating such racist tripe." Yet another, signing himself Jvr Gzz, channeled Susan Sontag:

Somebody should tell this lady that anglo-protestant culture is the worst ever as it has led to planet heating, wrecked the planet, and guaranteed the 6th extinction. The worst culture in the history of humanity.[ Original comment ]
Hey, at least he stuck to the Culturist line.

Several commenters wondered why Professor Wax hasn't been fired. (Answer: She has tenure—UNLIKE THE EDITORIAL COLLECTIVE OF VDARE.COM—DONATE WHILE YOU CAN!!!!)

So that's the kind of reaction you get nowadays in a top law school for stating the obvious.

I prefer Charles I—despite (or maybe because of) the fact that he was beheaded.

2010-12-24dl[1]John Derbyshire [email him] writes an incredible amount on all sorts of subjects for all kinds of outlets. (This no longer includes National Review, whose editors had some kind of tantrum and fired him. ) He is the author of We Are Doomed: Reclaiming Conservative Pessimism and several other books. He has had two books published by com:FROM THE DISSIDENT RIGHT (also available in Kindle) and FROM THE DISSIDENT RIGHT II: ESSAYS 2013.

For years he’s been podcasting at Radio Derb, now available at for no charge.His writings are archived at

Readers who wish to donate (tax deductible) funds specifically earmarked for John Derbyshire's writings at can do so here.

Print Friendly and PDF