Rule of law implies that every citizen is subject to the law, including lawmakers themselves. In this sense, it stands in contrast to an autocracy, dictatorship, or oligarchy where the rulers are held above the law. Lack of the rule of law can be found in both democracies and dictatorships, for example because of neglect or ignorance of the law, and the rule of law is more apt to decay if a government has insufficient corrective mechanisms for restoring it.
-Wikipedia entry, Rule of law
Our Constitution is a remarkable, beautiful gift. But it’s really just a piece of parchment. It has no power on its own. We, the people, give it power – with our participation, and the choices we make. Whether or not we stand up for our freedoms. Whether or not we respect and enforce the rule of law. America is no fragile thing. But the gains of our long journey to freedom are not assured.
-Barack Obama’s Presidential Farewell Speech, January 10, 2017
I have said there are certain axioms I go by, especially in politics. The first is, “it is possible for two different things to be true at the same time.” The second is, “every new President somehow lowers the bar.”
Recently Reason magazine’s online site published an opinion piece by Nick Gillespie in which he took the position- shared by some others- that President Obama’s use of executive powers and unilateral actions set the stage for Donald Trump or another conservative to take even more questionable actions. I posted the Reason link on my Facebook page and my advocacy for Gillespie’s position was rather unpopular. Perhaps because of the subheader, “Where were Democrats when Obama was going power-mad? Egging him on, mostly.” Now as we know, Facebook does not adhere to the human conceit of linear time, so I cannot retrieve the conversations I had on the subject, but among other things, I’m told that the problem with the libertarian position (for example, Gillespie, and myself) is that we think government should be kept small and relatively powerless because bad people will get into power. Which is simplistic. The realist position is that, in any case, we have a large government, and it is not impossible that it can have bad actors in it. As James Madison said, “Enlightened statesmen will not always be at the helm.”
This skepticism towards power is not a specifically libertarian position. In fact, the Founders wanted a government that was more powerful than the Articles of Confederation. The Federalist Papers (written mainly by Alexander Hamilton and James Madison) endorsed a constitutional system with a strong executive branch and a separate judiciary. It was necessary for the Federalists to write these papers to advocate for the project because, believe it or not, the idea of a strong federal government did not have universal support at the time. The Constitution was ratified because public debate, including the Federalist letters, clarified the principle of enumerated rights within the system as well as the separation of powers, or “checks and balances” between the branches to ensure a balance between them so that the necessity of a strong government did not threaten liberty. It was around this time (1780) that John Adams, in helping write the Massachusetts Constitution, devised the phrase “a government of laws and not of men.” In other words, a good government can survive bad people because the “system” – both the written laws and the adherence to them – prevents an unscrupulous individual from abusing his power. Indeed, the need for checks and balances becomes MORE important the more powerful you want government to get.
However, the key is that the laws are adhered to. And this has been a problem especially since the 20th Century, when the necessities of the Great Depression, World War II, and the Cold War caused the Congress and the public to ignore many of the restrictions on the President, especially on his role as Commander in Chief. This standard gave presidents a lot of leeway, and eventually led to our involvement in Vietnam. That in turn led to a backlash which led to the passage of the War Powers Act in 1973, which has been less and less invoked by Congress since then, even as the country gets more and more involved in war (indeed, Barack Obama is described as the first president to spend two full terms at war). Thus, the Congress doesn’t even enforce the after-the-fact measure that it enacted after admitting it had given the president too much power. That is only one concrete example of how the inertia of tradition, or deference to authority (or just political expediency) undermines the primary safeguard for holding authority accountable.
But the main objection I got to that point, believe it or not, is that what the president does does not set a precedent that his successors are expected to follow. This is a position that seems to conflate the general use of “precedent” with the legal concept of stare decisis. In terms of what I’ve described, the actions of both the president and Congress create a change in the political atmosphere that affects what is possible. For instance, I asked that if a president’s use of unilateral executive orders could simply be reversed by the next president’s unilateral orders, why didn’t Obama simply get rid of Bush’s Guantanamo Bay prison? And I was reminded that closing Guantanamo was actually one of President Obama’s first executive orders, which has since been effectively blocked by Congress through various means, including blocking of funds needed to transfer prisoners. So there is that. But if anything it only proves the point. Once government does something, even if it’s immoral or legally questionable, actually questioning it gets seen as un-American. It all comes down to politics. In response to my counter-arguments, I was told that given the current composition of the Republican Party, the issues with the Democrats, whatever they may be, don’t change the point that the Democrats are clearly superior. Republicans are not going to hold their own accountable any more than Democrats are. Thus we should only elect the “right” people.
This idea, even to the extent that I agree with it, is disturbing not merely for the implication that American government is only as good as the current King on the throne. More broadly, the implication is that for some time now, we have only had one real political party, because the modern conception of government is now impossible outside allegiance to the Democratic Party, and if you have any disagreement with it, the only escape is to join the overgrown babies screaming, “get your socialism out of my Medicare!” To say nothing of the point that the traditional adversarial relationship between various groups in the system becomes less a matter of each side holding each other accountable and more the “in” group defending the indefensible versus the “out” group trying to score points on them so they can take over. So much for “a government of laws and not of men.”
Because if only one party is (even halfway) responsible, that just makes social precedent all the more relevant. Gillespie started his article by alluding to the now-famous Meryl Streep speech at the Golden Globes awards this year, where she talked about Donald Trump’s public impression of a disabled reporter: “this instinct to humiliate, when it’s modeled by someone in the public platform, by someone powerful, it filters down into everybody’s life, because it kinda gives permission for other people to do the same thing. Disrespect invites disrespect; violence incites violence. And when the powerful use their position to bully others, we all lose.” Streep is saying that such behavior from a politician is a challenge to the political norms that had hitherto prevailed, and that if such a challenge is not defeated, it becomes the new standard. In other words, a precedent.
During the Clinton Administration, moral conservatives, back when such creatures existed, were making the argument that Bill Clinton’s exposure as a pathological liar and sex maniac meant that he was disqualified for the office of the President. At the time, Democrats scoffed. Now Hillary Clinton has lost an election because a strong plurality of Americans are okay with the idea of the president being a pathological liar and sex maniac. I believe this is what some Eastern religions call “karma.”
If there is no such thing as precedent, even on a social level, and what the President does doesn’t change the standard for his successors, why is Meryl Streep, or anyone, so worried about what Trump does? Why then do judgment and critique matter less and not more when your party is in charge, and you want to KEEP them in charge?
Is it really as simple as “it’s okay when it’s our guy?”
Government is not a matter where you can grade on a curve, even when your kid is a C student and the other kids are riding the short bus.
When a Reason article speculates that a president has left “a loaded weapon lying around” for his successor to use, that is not just libertarian rhetoric. It is a fact. Consider that Donald Trump has neither the intellect nor the political grounding to formulate policy himself, and neither do most of his plutocratic supporters/Cabinet members. Apologists might argue that such unscrupulous people would seize power regardless, but Democrats, specifically Obama, made it that much easier for them by initiating expansions of the state – when they were not approving them under George W. Bush. In this way, Democratic dysfunction facilitates Republican dysfunction. Indeed, I could make the case that Republicans need Democrats to help them destroy the country. Because if they can’t even come up with a fake half-assed plan to replace Obamacare after more than six years of huffing and puffing about it, then Republicans clearly have no capacity for new ideas.
A government by the majority will require the majority to be people of character and self-control, able to restrain their passions rather than assuming that government exists to indulge them. It is in this respect, more than in terms of an Evangelical religion that did not exist in his time, that John Adams said, “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” In previous ages, it would have been a conservative making that point. But these days, conservatives are that much more devoted than liberals are to the mentality of “it’s okay when it’s our guy.” So for guidance, they’re worse than useless.
I bring this stuff up, and I’m asked, “Do you seriously think Donald Trump would pay any attention to these limits at all?” Such a position is itself naive, or paradoxically, naive cynicism. If you do not demand even conditional standards from officials on “your team” you are in no position to enforce standards on officials who do not want them at all. Which only encourages a perception among the apolitical that “both sides are the same.” Which in turn serves to legitimize the other side, no matter how dysfunctional and immoral it is, thus increasing the odds of the scenario liberals say they want to avoid.
Liberals are correct in emphasizing the mistakes and overall evil of the Trump team and the new Republican Congress, because that’s the threat we’ve got to deal with now, and because, whether conservatives and libertarians want to admit this or not, the Republican agenda is much more destructive to the country than the Democratic one. But let us be clear on something. As long as the first-past-the-post political structure and the schemes of the duopoly ensure that you can only have two feasible parties in this country, it will be that much harder for people to think outside that box, which means the only escape from Republican tyranny is Democratic rule, and vice versa. For Democrats to regain power, they have to convince people, including some of those who ought to be most in agreement with them, that the Republicans would not be better for the country. And that is where Democrats have been falling down. The lesson of this election should be that the Republicans could have nominated a two-headed sewer mutant with an IQ of negative 6 (just as long as he was anti-abortion) and the average non-Republican would have said, “It may be a freakish imbecile, but at least it’s not Hillary Clinton.”
But I’ve talked about this online, and I bring up Gillespie’s thesis that Obama has lowered the bar, and I get denial. And then I share a Vox article where the reporter makes much the same point as Gillespie, only with that much more history and documentation. And that gets blown off too.
I am beginning to realize that conservatives are not the only ones immune to evidence.
Which is why, as Donald Trump starts his first week as President of the United States, I despair for the future of this country. Because I am not sure what is worse: “Conservatives” who insist on acting like apes, or liberals who ACT like they’ve got some sense but cannot draw logical conclusions from available data.