The Second Set of Books: The Real Law

The Second Set of Books: The Real Law. By Christopher Roach.

The Russian movie, “Dear Comrades!” … shows the thinking and motivation of the midlevel Communists — the so-called nomenklatura. These were the chief beneficiaries and implementers of Soviet policy. They distributed the propaganda and set the prices. They doled out the jobs and apartments and slots in universities.

The movie shows their motivations. Many began as idealists. Some were motivated by love of power. Whatever their reasons, they enjoyed privileges and thought nothing of the contradictions those privileges entailed.

The nomenklatura existed in a web. The system was not entirely the responsibility of anyone, and everyone had someone to report to. Thus, they were all careful and even paranoid. One mistake meant a fall from grace, along with the loss of their privileges and power.

In this struggle, there were the good people, who believed in science and were participating in the creation of a bright new future. And then there was everyone else who might harm that endeavor. They were labeled criminals, reactionaries, fascists, and Kulaks. The chief proof of their evil was their discontent with this enlightened system.

Communism, like its sibling, progressivism, imagined itself as rational, fair, and rooted in science. When things do not work objectively — as in the case of price increases, famine, or broken machinery — the fault lay in these bad people and their insufficient enthusiasm, or worse, sabotage.

Doesn’t that sound just like the USA in 2021?

One of the more striking aspects of the movie — besides its similarity in tone to the events of January 6 — is the portrayal of how ordinary people viewed themselves and their country. Most people, most of the time, are not political. They don’t go to protests and don’t make a fuss. …

One of the main characters, a young lady, argued about attending the protest with her mom, a local Communist Party functionary. The daughter defended the worker’s strike and their protests. She said Soviet people had freedom of assembly and the right of free speech. And, indeed, they did.

But the protesters soon learned that these rights were just words. They’re the “First Set of Books,” if you will. …

Two sets of books:

Competing books often make an appearance in accounting scandals. The first set of books is the official set for regulators and investors to see. And then there are the real books, which show the real state of the company.

I first encountered this phrase in a long essay by a veteran, who had a typically Kafkaesque encounter with the family law courts. He ultimately ended his life. He wrote:

Anyone swept up into legal mess is usually astonished at what they see. They cannot believe what the police, prosecutors and judges are doing. It is so blatantly wrong. Well, I can assure you that everything they do is logical and by the book. The confusion you have with them is you both are using different sets of books. You are using the old First Set of Books — the Constitution, the general laws or statutes and the court ruling sometime call [sic] Common Law. They are using the newer Second Set of Books. That is the collection of the policy, procedures, and protocols. Once you know what set of books everyone is using, then everything they do looks logical and upright.

Conservatives have honored and even fetishized the Constitution for a long time. It’s undeniably a good Constitution, and it evinces a certain durability and even brilliance.

Other countries also have constitutions, often with beautiful and high-minded language about individual rights and justice. The Soviets of course had one. …

For Americans, free speech was not merely protected in law — it was part of the culture. Speaking one’s mind was something everyone felt entitled to do. The same was true for the Constitution’s protection of privacy or the right to bear arms.

In other words, for a long time, there was only one set of books. Elections really did matter. There were real limits on what the government could do. …

Over time, and in stages, these books were replaced. The New Deal, legal realism, administrative law, “equity,” Hart-Celler, and their progeny superseded the original books. Movies, the media, public schools, and corporate HR departments made sure new generations were indoctrinated.

Conservatives, and even President Trump, fail to understand the Second Set of Books. Trump thought if he was a loyal American running for president, it would not be possible the CIA and FBI would wiretap him and destroy his supporters’ lives in the process. Similarly, he thought he could talk to foreign leaders or make changes to executive branch policy, and those subordinate to him would do what they were told. His supporters thought elections mattered, and that they had a right to protest when those elections appeared fraudulent.

The managerial state, whether the Soviet Union or at home, is rooted in the Second Set of Books. The rules, procedures, and priorities of the bureaucrats determine which laws get enforced and which ones don’t. These books determine when the exact opposite of the written laws and the written Constitution prevails. The Second Set of Books also determines which companies, donors, and groups are entirely exempt from the rules that apply to everyone else.

In other words, these are the real laws, determining what is permitted and what is forbidden. These books, and the mandarin class that writes and interprets them, decide when a riot is “mostly peaceful” or a dangerous “insurrection.” They determine when democracy means the opposite of democracy.

The Right’s historical practice of rallying around the Constitution or trying to elect the right people won’t work. The Second Set of Books will still be there. The way Trump and his supporters have been treated shows that the problem is systemic and more fundamental.

Selective enforcement and the second set of books make a mockery of the rule of law and the principle that the law applies to all. It did once, but not any more.

Here is a trailer for the movie about the Soviet Union in 1962: