Scalia (yet once more)

[Sanford Levinson]

Let me commend, with very high (even insistent) enthusiasm, to everyone on
this list an article by my BU colleague Susan Koniak, "When Law Risks
Madness," 8 CARDOZO STUDIES IN LAW AND LITERATURE 65 (Spring/Summer 1996).
Published as part of a issue commemorating Bob Cover, it looks at the nomos
created by many of those in the militia movement and their attempt to create
their own autonomous legal system.  (This is treated in a story in today's
New York Times about the so-called "Texas Independence Group.")  Anyone
interested in the importance of narrative, or in the implications of Cover's
respect for the possibility of genuine legal pluralism should find Susan's
article absolutely fascinating.  Apropos of this list--and of Mike Paulsen's
eloquent (and very troublesome) posting re abortion--I offer the following
statement by Gordon Kahl, a member of the Christian Identity movement and
member of the Posse Comitatus, "a group that endorsed, in large measure, the
beliefs of both the Christian Identity movement and the Constitutional
party" of North Dakota, the tenets of which are well laid out in Susan's
article.  Since he refused to recognize the legitimacy of the US "regime" (a
word much used in the First Things symposium), he refused to pay taxes and
was convicted of tax evasion.  Before being sentenced, Kahl spoke as follows:

        I felt I had a choice to make.  I realized I could be cast into
prison here          or I could spend an eternity in the Lake of Fire.  It
seems to me tht the         choice of the two would have to whatever
punishment I have to receive here.          That's all I have to say.

How does one respond to this?  Is there any doubt that he felt religiously
burdened by the power of what he believed to be an illegitimate state?
Should the judge who refused to hold the abortion protestors in contempt be
lenient in imposing a sentence Kahl because he sincerely viewed paying taxes
as condemning himself to "an eternity in the Lake of Fire"?  Kahl also
"renounced" his driver's license.  Assume that he had been charged with
failure to possess a license.  Even if you think that Kahl was legitimately
imprisoned for failure to pay taxes, because of the problems of strategic
misrepresentation always present with tax relief, are you confident that
RFRA wouldn't protect him in his failure to carry the symbol of a satanic
regime?   (Can anyone who is sympathetic to the American Indian plaintiff in
Lee--I think that's the right case--easily dismiss Kahl?)

For what it is worth, Kahl was ultimately killed in a shootout with federal
and state authorities following his violation of parole.  Ideology has
consequences.  I return again to the First Things symposium, whose picture
of the world is not so far removed from that of the militia movement as one
might think.  (This is *not* meant as a knockdown argument.)  An
impressionable reader of the Scalia quote and of Bork's article, for
starters, might well believe that it's getting time to emulate our ancestors
and revolt.  Or, at the very least, the reason not to do so seems prudential
rather than "principled."

------------------------
Sanford Levinson
B.U. Law School
EMail: levinson at bu.edu
------------------------