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The Coming Lawlessness

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The Coming Lawlessness

The choices this election are bad news for the rule of law. October 4, 2016
Politics and law

Which presidential candidate will best uphold the rule of law? This is one of the most important questions the American voter should consider. The rule of law is essential to a republican society. The Constitution recognizes that the president is central to the rule of law. It requires him to swear an oath that he will faithfully execute the duties of his office and that he will preserve, protect, and defend the Constitution itself.

The proposition that we are a republic of laws, not of men, is more than a conceit. Societal respect for the rule of law allows people to plan for the future. It enables them to be secure in their property. It promotes self-help and prevents violence. It also tamps down on political conflict and polarization, because it forces social movements to go through legal processes to change the law. In the United States, these processes are purposefully laborious. Creating new legislation at the federal level requires agreement between both houses of Congress and the president. Changing the Constitution requires two-thirds support in both houses and three quarters of the state legislatures. The requirements of consensus for legislation and constitutional amendments produce compromise, forcing people to work together.

Sadly, neither of the major-party candidates in 2016 can be trusted as a conservator of the rule of law. Republican nominee Donald Trump has a history of skirting the law in his private enterprises—allegedly stiffing creditors and suppliers alike. His temperament seems the opposite of law-abiding. A sole focus on winning is in tension with following the rules of a democratic polity that will inevitably frustrate continuous political triumphs. Moreover, journalists have had a field day in detailing how some of his policy suggestions, such as torture of suspected terrorists, would violate established law.

Hillary Clinton also poses a grave threat to the rule of law, less because of her temperament than because of her ideology. Clinton is a progressive, and progressivism in the United States was born in no small measure as a revolt against the fundamental rule of law. Progressives didn’t like the basic structures of the Constitution—federalism and the separation of powers—because these features thwarted social change and created obstacles to the efficient, administrative government that progressives felt could engineer a better world. Progressives proved unwilling to go through the process of constitutional amendment to change the plan of government. Hence, in the New Deal, they supported the appointment of Supreme Court justices who both gutted the enumerated powers that restrained the federal government and blurred the separations of powers that constrained the executive.

In the latter half of the twentieth century, progressive focus shifted to celebrating judges who would fabricate federal rights that were not actually in the Constitution—like the right to have an abortion—and impose them on the nation. Both the decline of federalism and separation of powers in our constitutional plan have generated political polarization. Federalism allows ideas to percolate and consensus to develop. In contrast, a strong federal administrative state means that policy will tend toward the extremes. The president feels justified in catering to the partisan voters who got him nominated rather than the broad middle of the nation.

President Hillary Clinton would further weaken the institutions that protect our rule of law. She won’t appoint justices dedicated to following the original meaning of the Constitution. Instead, her judicial appointees will be inclined to create new substantive rights favored by the Democrats even when those rights are nowhere contained in the Constitution. She is also dedicated to the latest progressive cause—weakening free speech, a right actually in the Constitution—in order to defend the political hegemony that progressives otherwise enjoy in the press and the academy. Her pervasive lack of constitutional fidelity counts heavily against her, because there is already a vacancy on the Supreme Court and there is likely to be one or two more during her first term.  

Moreover, given that her party will almost certainly not control both houses of Congress, she will likely continue the pattern of President Obama’s last six years in office—attempting to rule by executive decree rather than by forging legislative compromise in matters such as immigration and health care. The result here, too, will be greater polarization, as opponents will be enraged by her high-handed methods. These practices will also put more pressure on the basic framework of the separation of powers, as the Supreme Court faces the choice of opposing a democratically elected president or enforcing statutes and the Constitution as written.

Trump is likely better on preserving the judicial framework for the rule of law, not because of his innate constitutional fidelity, but because of his own legislative circumstances. Most significantly, he will likely follow through on his promise to appoint justices like Antonin Scalia to the Supreme Court. He will need to keep the Republican coalition happy on matters that unite it, even as he pursues his core agenda on matters—like trade—that divide it. He will be less able to use the bureaucracy to make policy, because the bureaucrats don’t agree with him, and even the Republicans he appoints are likely to have significant differences with him. Nevertheless, given his temperament and self-confidence, there is a substantial risk that he will ignore his appointees and make rash use of presidential powers.

The question, then, of which candidate will advance the long-run rule of law isn’t an easy one to answer. We are left with the choice of a candidate who will be inclined to lawlessness by temperament and one who will be inclined to lawlessness by ideology and circumstance. This unhappy dilemma is more evidence that we face the least inspiring choice for president in our entire history.

Photo by Joe Raedle/Getty Images

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