Develop a Legal Strategy to Succeed Against the Anti-Liberty Elements in Government
Mark W. Rutherford, Attorney, Indianapolis
We are faced with the need to develop a coherent social movement that is pro-liberty. Successful social movements also have a legal strategy behind their success.
So what do you do when the establishment ignores the rules?
You can tell people “you oughta do this”. (Nothing gets done because there are only words, not actions backed by resources such as time and money).
You can write letters to the editor. (Good – people that think the same now know they are not alone).
You can have events and rallies in large numbers (Good – people see there is support).
You can respectfully contact and express your concerns to elected and appointed officials. (Good – if they do not hear from you, they may not know there are concerns).
You can support candidates in elections who will address your concerns. (Good – even if you cannot get them elected you might worry those elected to act on your concerns, so they stay elected in the future).
You can file lawsuits to force government and its elected and appointed officials, and the bureaucracies they control, to follow the law. (The powerful establishment uses government to do these unethical, immoral and illegal things – use government power to fight back against the establishment – the powerful establishment uses the courts to force others to follow or do their unethical, immoral and illegal things).
We are faced with having to deal with a movement in government and by others that is anti-liberty with dictatorial powers asserted as an “emergency” – sounds familiar from the past in other places – doesn’t it?
Most successful social movements in the United States have had many strategies that led to their success with their mission. All the strategies for success support each other. The use of courts and lawsuits in the United States has been a vital part of these movements.
Courts and lawsuits are often used by the powerful to keep their power. Smart social movements use the courts to take the powerful to task at their own game. It is also a game the powerful understand, and it can be used against them.
Proactive litigation (lawsuits) in a social movement such as the pro-liberty movement first lets the powerful know we will actively work to use their own power mechanisms to try to thwart them at their own game.
A movement that files lawsuits starts to frame the issue as it sees it – not as the establishment wants it. When you file a lawsuit, you state what the issues are and how it does damage – the government and the powerful establishment have to react – to the issues as you see it first (sure they will get a change to say how it wants things to be – but you go first). The more proactively filed lawsuits, the more you force government to react – and try to defend its actions (which is hard because of flimsy reasoning).
Lawsuits force the courts to interpret laws and enforce the laws. It forces courts to intervene when the establishment misuses laws and interpret them in improper ways.
When you start to win in court it sets precedents – you can tell other courts that your positions have been found valid by others.
Lawsuits get attention from the public. It shows the public and the powerful you are serious. It highlights the movement’s issues more clearly. It shows the public and powerful you are organized, you will not take it any longer, and you will put your resources (time and treasure) to use to stop the bad behavior.
What is one of the best parts of the lawsuit strategy in a social movement? It lets current and future establishment officeholders know that it they do it again, they will have to defend lawsuits, and the defense will become public. It becomes a check against officeholders who might ignore the law in the future, because people have stopped with the “you oughta” chants and have started to take active action to stop them.
Lawsuits have disadvantages. Government has vast resources to use against you in its defense. You must use attorneys as the process and laws are so numerous and so complicated that the inexperienced and untrained individuals and groups will most certainly not succeed. Lawsuits are labor intensive, and lawyers must know all the facts, all the relevant law, and it takes a lot of time to do so. Lawsuits take time and the process is intentionally deliberative. This means lawsuits are expensive
(And yes sometimes the government has to pay your attorney fees if you win – but only in the clearest cases of certain victory will a lawyer take a case that might take years to win – and then a huge fight with government over the fees before it is paid – to take the case and be paid only if you win and recover attorney fees).
Even with the disadvantages, a pro-liberty movement must use the courts to maximize its changes to succeed.
Great movements have many parts. Successful movements have an active legal strategy. Most movements that succeeded did not start to succeed until a legal strategy was implement in conjunction with all the other strategies. The Liberty movement in Indiana needs a legal strategy.
Mark W. Rutherford is a shareholder/attorney in Indianapolis with the law firm Thrasher Buschmann & Voelkel, P.C. The views posted here are his own, and not necessarily of any other attorney or law firm.