The Probability Broach, chapter 22
This chapter opens with another of Smith’s fake quotes, but this one is especially eyebrow-raising because it valorizes a real-life murderer:
Despite Hamiltonian claims to the contrary, the Federalist Constitution contained no “checks and balances.” The Executive, the Congress, the Supreme Court, all were tentacles of the same octopus. All received sustenance at the same nipple. All had a single interest in common, power. Look for checks and balances in the marketplace: anyone who hangs out his shingle as a judge and cannot render adjudication satisfactory enough to be paid by those he judges will seek another profession or starve. And that, indeed, is justice.
—Professor Leon Czolgosz
Federalist Fallacies
We’ve been over this before, but to reiterate the gigantic and obvious problem with this scheme: if judges are paid by the people who bring them their cases, they’ll always rule for the person who can afford to pay more. I can’t tell if Smith is so naive that this never occurred to him, or if he knew it was a possibility but ignored it for ideological reasons.
This means that, in the North American Confederacy, the rich can commit crimes with impunity. They can harass, torment and abuse others as much as they like, and if they get sued, they can just write a check to their hired judge to make all the consequences vanish. As the saying goes, if the only penalty for a crime is a fine, then that law only exists for the poor who can’t afford it.
This is evidence for my point that power is like water. In the last chapter, Smith bragged that he’d invented a society where, since there was no government, nobody would have power over others. But he’s wrong. He didn’t find a way to get rid of coercive power; he just changed the form it takes, and ensured there are even fewer checks or balances on how the rich can exercise it.
Ironically, America’s founders weren’t so naive. They thought more deeply than Smith about ways their system could be abused or subverted, and they knew full well that government officials would seek to expand their own power at the expense of others.
That’s what motivated the famous line from the Federalist Papers about how “ambition must be made to counteract ambition”. In other words, by dividing the powers of government among different branches, each one’s natural desire for power would ensure that they’d hold each other in check. No one would want to let the others become more powerful at their own expense.
You could argue that it didn’t work. As we’ve seen in recent decades, the presidency has become steadily more powerful at the expense of the legislature, to the extent that conservatives are arguing that the president is functionally a king with limitless power to break or ignore laws. But the founders were at least cognizant of the problem, which is more than you can say for libertarian tracts like this book.
Getting back to the plot, Win successfully rescued his friends Ed and Clarissa from being frozen to death, but that’s all he’s accomplished. Madison has escaped and destroyed all the evidence of where he went:
Every scrap of paper in the building lay in the wastebaskets, reduced to a fine white ash. They’d been through this before, in a dozen countries, and were good at it. Downstairs was a different story: tangled broken wiring, scarred woodwork, splintered crates as if they’d made the decision to move at leisure, then gotten hurried halfway through.
“They’re rabbitted, all right.” I told Ed as we surveyed Bealls’s empty workroom. “As soon as he’s set up again, they’ll have their weapons and manpower.”
“The question is, where’s he setting up?”
“Lucy, even if we knew,” I answered bitterly, “how could we do anything about it? You people and your goddamned principles!”
Are we perhaps not reading the same book? Because I seem to recall that, just a few pages earlier, Win, Lucy and their hired guards kicked down Madison’s front door and raided his house to rescue their friends.
Why was that an allowable act, according to whatever passes for law in the NAC? And whatever reason they have to justify it, why couldn’t they do the same thing again if they can find Madison’s new hideout?
She kicked at an empty carton. “I dunno. Guess I’d rather have my principles shot from under me than finish ’em off myself. We do have two real live witnesses now. We could make kidnapping charges stick this time.”
Clarissa shook her head, “I’m afraid not, Lucy. We never saw any of the real leaders, just Mikva and his two henchmen. Madison was in Gallatinopolis at the time, with several thousand reputable witnesses.”
Swell, I thought. They could set up, pull whole armies through, and no one could stop them until they started initiating force-and by then…
It seems like L. Neil Smith is coming up with increasingly contrived excuses not to invoke his own legal system. Even if Ed and Clarissa never saw Madison himself, only his henchmen… they were being held captive in his house. How is that not a relevant fact to bring to a judicial proceeding?
We already know that they have no notion of fingerprints or, apparently, forensic evidence in general. Is the North American Confederacy’s justice system so spectacularly useless that you can’t accuse anyone of a crime unless you personally witnessed them committing it, in broad daylight with their face uncovered, while cackling villainously and monologuing about how they were knowingly breaking the law by doing so?
Far be it from me to fix Smith’s plot holes for him, but a better solution would be the one we already saw at the Continental Congress: any judicial proceeding takes time, and that’s the one thing the protagonists don’t have. Even if he’s caught dead to rights, Madison could use procedural technicalities to stall until he gets his Probability Broach working and brings his armies through, at which point it’d be too late.
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It doesn’t even take an under-the-table payment to tilt adjudication: in our own world, where many contracts push people into binding arbitration, the arbitrators know their repeat business comes from corporations, not individuals. As one lawyer put it, “they know which side their bread is buttered.”
It doesn’t have to just be the clients who cut them checks: the Kids For Cash judges did very well sending people to a for-profit detention facility they were entangled with (https://frasersherman.com/2026/07/12/two-books-about-our-world-gone-wrong/).
As a writer I have a small shred of sympathy with Smith. If a story requires your characters make a Hail Mary play, foreclosing all the alternatives can be tricky (“Nothing else is going to work. We have GOT to reverse the polarity of the neutron flow!”). Comes with the territory and he’s been out of the territory for a while.
Minor point (well for this nonsense), a system where violence is only acceptable after someone initiates fault is tougher than ours, where “stand your ground” has been extended to cover “Well, I thought I was in danger” even if there was no overt threat.
“anyone who hangs out his shingle as a judge and cannot render adjudication satisfactory enough to be paid” Which assumes everyone coming before him can judge when adjudication that goes against them is unsatisfactory, as opposed to shrugging and saying “It’s a fair cop, guv’nor.”
In the Smithverse, the factory laborer anarchist assassin of Pres. William McKinley became a professor?
“Ironically, America’s founders weren’t so naive.” – I’m not sure what word or phrase you want to use there, but “ironically” probably isn’t it. I get it; I write “ironically” occasionally when there’s something contrary about the situation, but then I usually delete it and write something else because mere contrariness isn’t irony. “Smith did not do his research and/or let his ideology overwhelm his reason, and wrote something contrary to reality as a result” is the reasonably expected outcome, not an ironic one.
Maybe we should bring back “contrariwise”. It’s old-timey, but broadly useful.
And all this discussion about world history suddenly made me think of Scott McCloud’s old comic book Zot! which he wrote well before he started Understanding Comics. In Zot!, a young woman named Jenny from our world ends up being taken to another world that’s basically a pulp magazine utopian ideal of the 1960s: spaceships, flying cars, all the rest of it. It’s not perfect, of course (there wouldn’t be a story if it were), but it’s better, cleaner, more high-tech world than our own. The young woman starts believing that this is what history should have been and our world is somehow a corrupted copy.
Except that Scott McCloud is a far better world-builder than L. Neil Smith, and one thing that becomes obvious (even to some of the main characters in the story) is that Zot’s world’s history isn’t actually internally consistent. A New Year’s Eve party happens after a confused discussion on which year Jenny arrived shows the clock ticking over from one year to… the same year, with all the locals insisting that no, it’s 1965 now, it was 1964 last year, and she arrived in 1963, despite Jenny being told it was 1965 when she first arrived. One of Jenny’s friends hears a busker singing a song that was written in World War II… except Zot’s world didn’t have a World War II, so where did the song come from? It becomes clear to the main characters that Zot’s world is a copy created by something who strung things together and removed a lot of the bad things from our real history but couldn’t hide all the seams: “It’s nice enough, but it doesn’t really make sense.”
We never really find out how that happened (McCloud moved onto other work like Understanding Comics after completing the next arc of stories after that reveal) but McCloud deliberately set up his utopia as a utopia in the original ‘no place’ sense of the word. And was good enough at it to leave clues before the main reveal.
Dang, I didn’t even remember any of that. Perhaps it’s been too long since I read the omnibus.
McCleod commented that his rep shifted from “Understanding Comics is a new book by the guy who created Zot.” to “Zot is a comic book by the guy who wrote Understanding Comics.”
Yes, this was in the last issue or two before the ‘Earth Stories’ arc: Jenny had brought Woody over with her to Zot’s world this time, much to Woody’s shock on seeing it. Woody was quite prepared to fight for Jenny, and Zot’s reaction was ‘Jenny can make up her own mind; I don’t own her’, which took a bit of the wind out of his sails and Woody became a lot more friendly with Zot after that. Thing is, Woody was a lot less ‘escapist’ than Jenny was, and more willing to pay attention to the mismatches he saw in the world (we’d find out later based on his father that he came by a lot of that honestly in ‘Sometimes a Direction Is a Destination’) and so once he spotted loose threads with the New Year’s party he started pulling.
It was a great thematic lead-in to the Earth Stories, which were, after all, all about people dealing with reality in all of its dirty mess and making of it what they could.
Perhaps it’s better to understand this as two books shuffled together – an exciting adventure with breaking down doors, yelling at reporters and torturing captives, and a philosophical work about the evils of breaking down doors, etc. There ought to be a line of dashes to indicate when we can expect Lucy will bemoan her inability to do anything against the villains because of her principles, and when we can expect her to join in on the breaking-and-entering?
That’s coming up next week! It’s the scene where Lucy sets her ethical qualms aside yet again so that they can accidentally raid a kids’ birthday party.
I can’t tell if Smith is so naive that this never occurred to him, or if he knew it was a possibility but ignored it for ideological reasons.
A third possibility, of course, is that Smith was simply too clueless and detached from reality to have any grasp of how anything works in the real world. (Perhaps all those fake quotes are from the voices in his head?) I guess that could be called an “ideological reason”…