159. The Judge Stroessner principle

The Economist's obituary of General Stroessner, the Paraguayan dictator and one of the models for Garcia Marquez's Patriarch and (sartorially, at least) for McKellen's Richard III, gives us the depressingly expected background:

The style of government was a spoils system, underpinned by terror of a vicious network of spies and secret police. Foreign policy was a buddies' brigade with other dictators—Videla of Argentina, Pinochet of Chile—to co-ordinate counter-terrorism and assassinations. And the most famous tourist was Josef Mengele, the fugitive doctor of Auschwitz, riding into a village in the Paraguayan wilderness to be welcomed and protected.

But the detail I didn't know was this:

Much of his day was spent, like some Roman emperor, receiving the petitions of the long lines of ordinary citizens who filed towards his inner sanctum.

Stroessner was a judge.  But a judge of the old school.  The really old school.   He was deciding cases like the Cro-Magnon chieftain with the caribou bone in his hand, pronouncing judgments from the smoky back of the cave.  He was the ugada principle in the flesh.  (See post 106.) 

All power aspires to the arbitrary, and that includes the power of judges.   The primary purpose of the law is to restrain the judges, not the judged.  Stroessner used his goon squads, the army and his organized informers to set himself up with all the arbitrary power of the clan chieftain.  The pinnacle of his power was to be a judge without law.

It is part of the dreamworld of American law (see post 158) to accept that "the Constitution" means "the collected opinions of the Supreme Court."   Certainly the justices themselves believe there is no difference between their words and the words of the Constitution itself.  For example, when the justices said, "We may not, however, vitiate constitutional guarantees when they have the effect of allowing the guilty to go free", the phrase "constitutional guarantees"  was being used as a synonym for "our opinion of two years ago."  

Similarly, when an earlier proponent of the living Constitution (see post 147) wrote that "the Double Jeopardy Clause of the Fifth Amendment demands" that a killer go free, he was using the Capitalized Nouns to dress up his meaning: "we demand."

To equate law and judge in the carelessly arrogant way of our Supreme Court justices is to accept the ugada principle as the basis for political organization.  Or maybe I should start calling it the Judge Stroessner principle.