What Rule of Law?

The redoubtable David Skeel had an op-ed in yesterdaty’s Wall Street Journal: “A Nation Adrift From the Rule of Law.” It’s a bone-chilling must-read. Along the way, amidst horror stories of extra-legal bailouts and prosecutions, Skeel takes issue with the Eric Posner/Adrian Vermeule postmodernism-for-conservatives riff, which says that the rule of law is never worth a dang in a crisis and so why worry. Putting aside that “pushing the envelope isn’t the same thing as flouting the law,” one has to fear to crisis-induced lawlessness become the new normal. In support of this proposition, Skeel cites the Dodd-Frank Act. Hard to argue with that. E.g., the act requires the Federal Deposit Insurance Corporation (FDIC) to liquidate financial institutions that are deemed to be in trouble, without a whiff of due process. Then again, the FDIC has announced that it will instead use the liquidation mandate to save and recapitalize those institutions. In other words, whatever: we do what we want. Amazingly (or perhaps not), it took Congress well over 1,000 pages to say so.

David Skeel’s urges that the presidential campaigns should be confronted with the rule-of-law question: “What would you do to protect it in the future?” We haven’t heard much on the subject so far, and we probably won’t.

Michael S. Greve

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. His most recent book is The Upside-Down Constitution (Harvard University Press, 2012).

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  1. R Richard Schweitzer says

    “We haven’t heard much on the subject so far, and we probably won’t.”
    (on preserving the “Rule of Law”)

    That merits your further discussion on why “we probably won’t.”
    More please.

  2. libertarian jerry says

    Michael…….We don’t live in a nation of law but instead a nation of a few powerful men. These elitists,behind the scenes, have bought and paid for most of the politicians and judges of importance in America. This is why most politicians ,from the President on down,are owned by these same megalomaniac elitists. From the Constitution all the way down to local laws,including eminent domain and zoning laws,justice is bought and paid for by these same elitists. The average citizen doesn’t stand a chance against this kind of power. It is this lawlessness that has contributed greatly to the decline and fall of the American Republic.

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