Tonight, the sixth and final season of Longmire, the Western series produced by Netflix, begins streaming. Based on Craig Johnson’s Sheriff Walt Longmire mystery novels, the show has earned an intense, devoted following. Originally it was an A&E series, the most watched scripted drama ever produced by the channel. When Longmire was inexplicably cancelled in 2014 after its third season, fans were incensed. Netflix, sensing an undervalued market opportunity, quickly picked up the series. By most accounts, Longmire has grown as a dramatic series under Netflix’s auspices. It’s not hard to understand why. Take the man in the lead, Sheriff Walt…
A cocktail party is an odd place, perhaps, to discuss the rule of law, but I have no small talk and neither had my interlocutor. Our views on this subject were, fortunately for the flow of conversation, somewhat at variance.
My interlocutor asked me whether I believed in redemption and forgiveness, that is to say the possibility that a prisoner incarcerated for a serious crime could redeem himself and be forgiven. I said that I did not, at least not in any sense that had any legal bearing. From the religious point of view, of course, it was different.
Justice Ruth Bader Ginsburg recently noted that she sometimes refrained from dissenting in the cases she regarded as less important like tax disputes and saved her dissents for the big ones like those on gender equality. Unlike some of her other obviously injudicious remarks, her opinion on this matter may be widely shared among judges. When I asked a friend who had become a federal appellate judge what most surprised him, he said it was norm among his colleagues to suppress written dissent in all but important cases. He was troubled by the practice but felt pressure to conform.
My friend is right to feel uneasy. It is a bad practice. First, it smacks of judicial hubris. It is often difficult to be sure how important a decision will be in the long run.. The fabric of the law is complex. For instance, the development of minor exceptions to a doctrine can eventually lead to pressure for its overthrow. Even cases that are minor to Supreme Court justices can have large ripple effects.
Perhaps no concept in American politics is more familiar and appealing—yet more vacuous of meaning—than “the rule of law.” A close rival might be the equally indispensable but ambiguous word “constitution.”
While rhetorical ambiguity sometimes proves useful in politics, sustained disregard of the meaning of these fundamental ideas has a demoralizing effect on republican government. Notwithstanding the pragmatic, if not providential, ability of the American people to select worthy leaders through most of their history, to misunderstand or ignore fundamental principles of law and constitutionalism is to begin to undermine what Abraham Lincoln identified as “the strongest bulwark of any Government, and particularly of those constituted like ours”—namely, “the attachment of the People.”
There has been a lot of discussion in the blogosphere about what candidate would be better for the rule of law—Hillary Clinton or Donald Trump. At City Journal I recently pointed out that both candidates pose some legal dangers.
But whoever is elected President, there can be no doubt that a Republican Senate would be best for originalism and thus the long-term prospects of the rule of rule. Begin with the election of Clinton, because that is the far more probable outcome and thus should be counted most heavily in the calculus. She would nominate justices who are outright hostile to the meaning of the Constitution. At the Presidential debate she said nothing about wanting justices who would follow the law, just judges who have empathy and who would follow her litmus tests of being in favor of Roe and against Citizens United. That latter comments were too much even for the Washington Post.
Even more importantly, she comes from a progressive movement that is dedicated to transforming the Constitution without going through the amendment process. As I said in my City Journal essay:
My co-blogger, Mike Rappaport, has opened up a discussion about the flaws of Justice Scalia’s jurisprudence. I think this is an important subject. Despite his mistakes, Justice Scalia was a great justice. But precisely because of his greatness, his errors, unless noted and analyzed, may hold back progress in the jurisprudential theories he championed.
In constitutional law, I think Justice Scalia’s greatest systematic mistake was his treatment of precedent. One of his most famous statements on the original meaning of the Constitution was one in which he argued for following precedent: “I am an originalist, not a nut.” Unfortunately, his argument for precedent here does not seemed to be based on the Constitution itself, or tied to any rule. It is merely a maxim of prudence. Overruling some cases could be too disruptive to entertain.
And to my knowledge, he never provided any further analysis of how to tell us when cases were too disruptive to be overruled and when they were not, let alone whether this was a sensible rule for evaluating precedent, even if it should be thought of as a rule. As a result, he is open to the criticism that he picked and choose among precedents he liked (or at least could live with) and those he hated.
Thus, for instance, he would never acquiesce in the fundamental right cases, like Roe, but he was willing to follow and perhaps even extend cases, like Wickard v. Filburn.
“Stroke of a pen . . . law of the land. Kind of cool.” That insouciant comment, made by Paul Begala when he worked in the Clinton White House, raised controversy when Begala said it back in 1998, but it hardly would today.
After all, just in the past few weeks we have discovered that President Obama plans to sign, on his own authority, an international “climate change” treaty. He calls it an executive agreement and so claims he needs no congressional approval, even though his administrators will use the treaty to impose new policies and rules binding American individuals, governments, and businesses to change their behavior on pain of federal sanction.
In this year’s presidential campaign, it would be a wonderful contribution to the republic and perhaps a winning move to run credibly on a rule of law platform. This kind of platform is to be distinguished from a “law and order” one, because it emphasizes that in a well-ordered republic that government must enforce order only through law. And this slogan also underscores that the problem we face is not simply or indeed mainly lawlessness on the streets, but lawlessness in government. Respect for law must begin at the top.
Progressivism was born in no small measure from opposition to the rule of law, because it wanted to overthrow the Constitution by means other than the amendment process, if necessary. But today progressivism’s opposition to the rule of law is not confined to the Constitution.
The latest example comes from Yale, a bastion of progressivism. There a dining hall employee purposely destroyed a stained glass window that depicted African Americans picking cotton, because he found it offensive. Initially, Yale fired him and referred him for prosecution. But after protests from professors and students, Yale declined to prosecute and is in negotiations to reemploy him. The protesters celebrated his act of “civil disobedience.”
The support for this act of vandalism and Yale’s pusillanimous climb down are misguided on many levels.