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.
Many people are concerned about Donald Trump’s commitment to the rule of law, a concern I share. But the other choice in this election is a Progressive one, and Progressivism by its nature lacks that commitment. Moreover, its history shows that it permanently damages the constitutional foundations of the United States. And the United States suffers from the fevers of progressivism more than any time since the 1960s. Thus, this election pits a candidate lawless by virtue of temperament against one lawless by virtue of ideology and emboldened by the spirit of the times. The rule of law is under threat, whoever wins.
Progressivism has proved a greater long-term danger than any single individual, because it is born in part out of systematic rather than personal hostility to the Constitution. Federalism and separation of powers are obstacles to the social engineering at the heart of progressivism, and thus progressivism has tried to eviscerate these restraints. Packed with FDR appointees in the 1930s, the Supreme Court gutted the enumerated powers. The administrative state has eroded the separation of powers, making the executive ever more powerful in domestic affairs. The theory used to justify these departures from the original constitution, living constitutionalism, is itself a threat to the rule of law, because it devalues the formal rules laid down by the Constitution.
And today we see all across a society a renewed progressive disdain for the rule of law.
Justice Thomas' masterful dissent in Whole Woman’s Health v. Hellerstedt skewers the Court's arbitrary use of rational, intermediate, and strict scrutiny tiers of review used in evaluating different constitutional rights. Justice Clarence Thomas has written two significant opinions concerning abortion. Seventeen years ago in his lengthy dissent in Stenberg v. Carhart (2000), he denied that there is a constitutional right to abortion; he called Roe v. Wade (1973) “grievously wrong” and insisted that nothing in the Constitution “deprives the people of this country of the right to determine whether the consequences of abortion to the fetus and to society outweigh the burden of…
Regulating cyber-commerce is controversial. The advent of smart phones and web-based interfaces has facilitated many new consumer services. Customers using these digital platforms often insist that existing regulatory models are outmoded and simply shouldn’t apply to new technologies.
As do the companies. When residents of Austin, Texas recently rejected Proposition 1—an ordinance proposed by Uber and Lyft—it generated national attention around this important question: How should a free society deal with innovative new technologies? Should existing regulations apply, should exceptions be made, or should the collision between existing rules and innovation cause us to re-examine the existing rules altogether?
“How does a lawyer sleep?”
“—First he lies on one side and then on the other.”
Ugh what an unfunny joke, you say. Well we non-lawyers have to vent our feelings about lawyers somehow.
Actually there’s at least one lawyer who conquers the layman’s cynicism about the profession. He isn’t an American or even a real person. He is Rumpole of the Bailey, the creation of the late British writer John Mortimer. A new audiobook edition of Rumpole is out, with the wonderful actor Tony Britton reading the stories in Mortimer’s 2001 collection, Rumpole Rests His Case.
Many on Left want to politicize American law and they are emboldened by the vacancy on the Supreme Court to achieve their long sought goal. But don’t take my word for it. Zephyr Teachout, a professor of law at Fordham, ex-candidate for the governorship of New York and current candidate for Congress, laments the current state of antitrust law: “If you can depoliticize antitrust law, you can depoliticize anything.”
The quote comes at the end of a long article in the New York Times in which many commentators complain about Supreme Court decisions friendly to business. The evidence that the Roberts Court has been the best court for business in decades comes from a study by Lee Epstein, Bill Landes, and Richard Posner. This study has been ably critiqued by Jonathan Adler, who notes, among other things, that the study leaves out regulatory decisions quite unfriendly to business.
But my observation here is that neither the authors of the study nor the commentators in the Times article try to show that that the decisions in favor of business were legally incorrect.
The burgeoning literature on the Obama administration, one of the most lawless in U.S. history, includes Michelle Malkin’s Culture of Corruption (2009), Tom Fitton’s The Corruption Chronicles (2012), Gene Healy’s False Idol (2012), John Fund and Hans von Spakovsky’s Obama’s Enforcer: Eric Holder’s Justice Department (2014), Andrew McCarthy’s Faithless Execution (2014), and the many legal critiques of Obamacare. None, however, focuses on the damage the 44th President has done to the U.S. Constitution like George Mason University law school professor David E. Bernstein’s excellent new book, Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law.
At the beginning of this term of the Supreme Court, Cass Sunstein has praised judicial minimalism. Professor Sunstein argues that the justices should decide cases as narrowly as possible: “Minimalists . . . insist on small steps and narrow, unambitious rulings. They want to resolve the specific problem at hand, but without pronouncing broadly on liberty or equality, or on the system of checks and balances.”
So described, minimalism is the antithesis of a principled jurisprudence. First, minimalism does not offer a method for discerning the Constitution’s meaning. One does not need to be an originalist who believes that the meaning of the Constitution is fixed at the time it was enacted to recognize that an interpretive theory has to give account of how it is following the meaning of the Constitution. It is that meaning which should govern the case, and the relevant principles may be either broad or narrow depending on the meaning. For instance, if one follows the original meaning that the term “session” in the Recess Appointments Clause is limited to the intersession of Congress, the holding will necessarily rule out recess appointments in all cases but appointments made at the intersession.
Second, minimalism is incompatible with the rule of law. Deciding cases based on their peculiar facts gives little guidance to citizens as to what their rights and obligations are. Indeed, the reductio ad absurdum of minimalism is to decide the case of A v. B for A or B without giving any reasons at all: that approach surely resolves the case by making as little law as possible!