Guest Commentary: The Rule of Law v. the Rule of Laws
The law can't be the answer to every moral question, and the more we try the less our society is actually ruled by the law.
One of the bedrock principles of classical liberalism and American conservatism is the rule of law. But what does that mean? What is the rule of law?
It means that the law is above everyone, including the people who hold power. The rule of law means fidelity to the Constitution, to the governing documents which constrain our elected officials (and us).
The rule of law is a republican check on the excesses of democracy. A written constitution constrains the ability of individuals, factions, or outright majorities to exercise tyrannical rule over the rest of the polity. It channels and directs political action and political will into a process: the people can have their say, but they must play by the rules of the game. This is undemocratic, in that it checks majoritarianism. But it is also anti-authoritarian in that it prevents powerful individuals from exercising arbitrary power.
(Incidentally, this demonstrates that “undemocratic” isn’t a synonym for “authoritarian,” and that “tyranny” isn’t the opposite of “democratic.”)
The rule of law gives legitimacy to the government. It divides civilization from barbarism. It distinguishes abuse of power from proper usage of power. It defines the boundaries within which politics take place.
But increasingly, many people seem to mistake the rule of laws for the rule of law.
What is the Rule of Laws?
The rule of laws is the proliferation of rules and legal sanctions into every area of American life in the attempt to control or dictate more and more of what we can and cannot do. It is both cause and effect of the conflation of that which is illegal with that which is immoral (and vice versa). As we proliferate laws and administrative rules, the legal system becomes the primary means of dealing with every problem that arises. It becomes the sole means of managing human foibles. “There ought to be a law,” we demand.
But many things that are not illegal are immoral. Cheating on your spouse, or spreading false rumors about a friend aren’t illegal. But they are morally wrong.
And many things that aren’t morally wrong are illegal. There is nothing immoral about driving alone at one hundred and fifty miles per hour on a deserted highway in the middle of Kansas. It is merely dangerous.
In 2022, laws and administrative rules have proliferated to the point of absurdity. While American citizens may not really be committing “three felonies a day,” even “law-abiding citizens” unwittingly transgress some obscure federal or state law on a semi-regular basis. As the administrative state of the federal government has grown, we move ever closer to a “rule of laws” rather than the rule of law. (According to the Government Publishing Office, the U.S. Code of Federal Regulations encompasses some 200 separate volumes.)
But why does this matter? What’s the harm in this proliferation of obscure rules if they aren’t enforced? After all, if average citizens really are committing three felonies on a regular basis, they’re (usually) getting away with it.
This is precisely the problem. As rules proliferate ad absurdum, they begin to lose their force. Thus, we need to pile on more and more rules on top of the existing ones to constrain behavior even further, especially once the previous set fails to stop “bad things” from happening.
Even worse, both average citizens and public officials begin to disregard laws. When laws proliferate to absurdity, they become on some level absurd. We stop taking them seriously. If we get away with transgressing them so frequently (because, “Come on, if we really can’t go through our days without violating some obscure administrative rule, we must deserve to get away with it.”), why should we bother trying to follow the law? For that matter, if the body of laws and regulations reaches the point at which no citizen could possibly be aware at any given time of all the rules that supposedly govern his behavior, why should he bother trying to understand what they are at all? Why should he care?
These questions, and the behaviors and attitudes they engender, promote a culture of lawlessness. If the rule of law leads to order (and is the fundamental basis for order in a just society), the rule of laws does precisely the opposite. It leads to a breakdown of public order.
In the political realm, without the rule of law, we return to arbitrariness and impermanency. The whole point of writing down the laws in the first place was that they remained on the books and lasted after their authors were gone (until they get overturned or overruled or replaced through constitutional processes). If the law has no teeth, if it can’t last more than one administration, the only imperative in the political arena becomes seizing power. Especially since those in power can just decide which laws they feel like enforcing and which they feel like ignoring.
Without the rule of law, all power is arbitrary, and, therefore, the only way to make sure that what we want to happen happens is to maintain our own grip on power. The only way to prevent the other guys from doing what they want is to keep them out of power. Of course, since control of government swings routinely between the two parties, this creates a state of inconstancy and illiberalism.
As we have increasingly ignored the Constitution in favor of doing the things we want, regardless of whether or not we are constrained by a supreme law of the land, we have gradually given up on the rule of law.
As we get away from the Constitution, we are increasingly forced to rely upon a proliferation of rules and regulations to govern behavior. If we no longer believe elected officials are above the law, we must make sure it’s our side holding the reins of power. More and more, we seek to use the law as a weapon against those we dislike.
All of this is wrong.
Without the rule of law, the state becomes simply a glorified criminal syndicate. Law enforcement is monopolized violence. People in positions of power use their influence to enrich themselves and further their own gain. Arbitrary usage of power destroys the legitimacy of government.
A Culture of Lawbreaking
Broken windows theory (the real thing, not what it was construed to be by activists in 2020) demonstrated that a culture of lawlessness led to further lawbreaking. Turnstile jumping on the subway, graffiti, actual broken windows, and minor infractions going unpunished all contribute to the impression that nobody is in charge and anything goes. In that environment, organized crime sees opportunity, tough-minded citizens respond with vigilantism, and the majority of people keep their heads down and try not to get hurt. Everyone jumps the turnstiles, though.
In a culture of lawlessness, when the law no longer governs behavior, people variously take matters into their own hands or commit minor infractions with impunity, just to see what they can get away with. This isn’t a conservative society; it is a radical society.
If police were the only thing preventing civilization from devolving into that dystopia, we would need to live in a police state to have any semblance of order. Luckily, underpinning and undergirding the law and its enforcers is the vast system of unwritten norms and customs that have evolved to support them. While many things contribute to the erosion of that system, one factor is the proliferation of regulations ostensibly put in place to promote the general welfare.
In The Death of Common Sense, Phillip Howard argues that when the law, “the framework for humans to make choices,” becomes the “replacement for free choice,” it crowds out the space that used to be filled with prudence and pragmatism. We rely more and more on legal constraints, which in turn contributes to the feeling described earlier that “there ought to be a law” to prevent every “bad thing.”
The distinction between what is permitted and what is encouraged or required begins to blur, and what dies is good old-fashioned common sense. In its place, individuals develop the attitude that “everything that isn’t illegal is okay, so I should use every means at my disposal to further my own narrow interest.” In this vicious cycle, we actually incentivize bad behavior, which fuels further calls for even more rules to constrain action. Because if there is no practical wisdom, the only thing that prevents bad behavior is a law.
Barry Schwartz and Kenneth Sharpe diagnose this vicious cycle, and the misaligned incentives it produces, in their 2010 book Practical Wisdom. As the explosion of regulations disincentivizes common sense, we need more regulations to prevent bad actors from wreaking havoc or to prevent crises from metastasizing, which only contributes to further erosion of institutional integrity.
(This doesn’t just include federal or state or local government regulations. It includes employers passing out ninety-page workplace conduct handbooks, academic and healthcare institutions using excessive rulemaking to cover their tails against lawsuits, and educational practices that involve handing children elaborate procedures to follow, rather than teaching them how to think.)
However, Schwartz and Sharpe’s suggested remedy to this problem – that individuals become “uncanny outlaws” within their organizations – seems to further undermine institutions at precisely the time when they are under threat from this culture of lawlessness. Vigilantes ultimately don’t restore the rule of law to anarchic cities, and uncanny outlaws seem unlikely to restore a culture that respects the law and institutional integrity, given that the entire point of being an “outlaw” is that you step outside of the law.
In their discussion of the need for individuals within institutions to return their organization to its telos (fundamental purpose), and in their application of Aristotle’s philosophy, Sharpe and Schwartz come close to a better solution, but ultimately don’t reach it. In A Time to Build, Yuval Levin offers that solution. He argues that rather than telling individuals to “do what they think is right,” we need a restoration of reverence for institutions and their original purposes, similar to Abraham Lincoln’s argument that a free society needs a culture of reverence for the law.
Schwartz and Sharpe correctly assess the problem, but Levin has perhaps a firmer grasp on its scope. His question (“given my position, how should I act here?”) better addresses the culture of lawbreaking than does the question of how we can make ourselves into uncanny outlaws.
Together, these three books demonstrate how a culture of disregard for the rules is destructive to societies, and to the institutions which make up the fabric of those societies. After major institutional failures (the 2007-2008 financial crisis, the early responses to the COVID-19 pandemic, etc.), the urge to prevent the next one leads to the creation of more rules to govern individuals within organizations and within society, which then go ignored.
Instead, the urge should be to repair our institutions and restore both a reverence for the law and reverence for institutions. These are a precursor to common sense, practical wisdom, institutional integrity, and the norms and customs upon which a free society depends.
(Because more regulations aren’t going to keep the next powerful scofflaw in an institution from abusing his power and damaging his institution. Reverence for the institution and its telos/mission is what prevents elite failure, i.e. experts impugning their credibility, businesses and nonprofits not staying in their lane, etc.).
Unfortunately, we don’t see much of this desire to rebuild and restore in Washington. Instead, we see wanton and rampant disregard for the rule of law across the political aisle.
It Really is Both Sides
If we want evidence that we live in a society of the rule of laws, rather than the rule of law, we need look no further than our politicians. An exhaustive list of every example of flagrant disregard for the Constitution would be book-length. But I’ll try to include enough to offend just about every partisan.
Flagrant violations of the Constitution have become common practice among American presidents. We might have to go back to Reagan or Carter to find a president who hasn’t done something unconstitutional while in office.
Last year, President Biden extended the CDC’s eviction moratorium by fiat, despite the fact that he had no power to do so. His OSHA vaccine mandate was likewise unconstitutional. You may agree with the outcome of the eviction moratorium or the vaccine mandate. You may think those don’t represent egregious abuses of power because they didn’t “harm anyone” (Except landlords and business owners). But if we can implement whatever policy we want without any regard for the Constitution, we aren’t living in a nation governed by the rule of law, but a tyrannical one. If the president can do whatever he wants and justify it because “he has a mandate from the people,” he is a king or a dictator.
Progressive readers will accuse me of hyperbole. But the law must mean something. The Constitution must mean something. And if we pretend it means whatever is convenient to us in the moment, or if we attempt to go around it because it is in our way, we are no longer a nation of laws but a nation of men. If you’re unable to understand the Supreme Court’s recent ruling against the EPA, and you think it has something to do with “unelected judges imposing their anti-environment agenda on the American public,” you don’t want a nation governed by the Constitution.
(The decision was actually based on the fact that Congress is given legislative power, not the executive. If Congress wants to shut down coal production, it can pass a law. It can’t give the EPA blanket authority to do “whatever it takes.” Congress never authorized the EPA to do what it was doing.)
The “Party of Democracy” clearly doesn’t respect the rule of law.
But neither does the Republican Party – which is a shame given that the most republican thing about America might be the Constitution. J.D. Vance, the GOP senate candidate for Ohio, declared that he wanted to tax woke corporations, subsidize the corporations he liked, and seize the assets of the Ford Foundation. That isn’t nationalism. It’s corruption and extortion.
Donald Trump wanted to stay in office, so he ginned up a mob on January 6th of 2021 and sent it down to the U.S. Capitol to “hang Mike Pence.” He managed to convince his supporters that Mike Pence had the power to throw out electoral slates coming from states that didn’t go for Trump. And if Mike Pence didn’t really have that power? Well, he should do it anyway, because that’s what “fighting” means according to Trump.
Previous presidents were more respectable about it, but they violated the law, too. Barack Obama spent years telling the public that he had no authority to do what he then did when he enacted DACA. You may like DACA and think it was humane. But it demonstrated Obama’s belief that he was above the law. George W. Bush said he thought the McCain-Feingold Act was unconstitutional, but he signed it anyway, as if only SCOTUS had the responsibility to defend the Constitution, not POTUS.
Progressivism was never comfortable with the Constitution. But at least the Right cared about the law (or pretended to). Yet, now, right-wingers tell me that it’s all about power and that Republicans need to seize power and hold it to keep the Left from just doing what it wants. So much for limited government.
A Return of the Rule of Law
C.S. Lewis wrote that “if you are on the wrong road progress means doing an about-turn and walking back to the right road.” If progressives complain about conservatism being “backward,” that might be because we have a different idea of which direction “forward” lies in. If we are on the road to lawlessness, we need to turn around and head in the direction of taking the Constitution seriously.
The greatest victory for the conservative movement in the past fifty years has been the success of the conservative legal movement. Paradoxically, the most striking recent evidence for this victory might not be overturning Roe (although that was a welcome triumph), but the confirmation of Ketanji Brown-Jackson.
How can that be if she will be a progressive justice? Because she gave lip service to textualism and originalism. In response to a question from Senator Sasse, she declared that the Constitution’s meaning did not change over time and that judges should consider original intent and original public meaning in their jurisprudence.
Of course, this doesn’t mean that she’ll start voting with Justice Thomas or Justice Gorsuch. But the mere fact that she had to say that, or that she felt she had to say it, demonstrates a victory for conservative judicial philosophy. In the 1960s and ‘70s, even many right-wing judges weren’t giving lip service to fixed meaning or original intent, let alone basing their rulings on those concepts. This is to say nothing of the “living constitution” liberal justices at the time.
(I’m still not sure whether I buy the idea of “liberal originalism” a la Akhil Amar, but I consider it a positive development in leftist jurisprudential philosophy, if for no other reason than that it demonstrates that even people on the political left now have to take originalism seriously. It also indicates a commitment to the rule of law, which is sadly lacking in progressivism. As a conservative, I’d prefer a sane political left tempered by voices urging commitment to the rule of law than a no-holds-barred progressivism that seeks to achieve utopia on Earth by any and every means necessary.)
Why is any of this important? Because originalism and textualism are fundamentally about respect for the rule of law. The idea that the Constitution has a specific meaning, that justices cannot read into it anything they please, and that the duty of a justice is to abide by that meaning is unpopular today. As is the idea that the Constitution doesn’t change because public opinion changes, but that changing it requires following a process: passing amendments.
Originalism and textualism are two approaches to the same basic principle: that the law must mean something (and can’t mean multiple things) and that the job of a judge is to apply the law rather than decide it. The way a judge goes about discerning that meaning requires looking closely at the text of the law itself, as well as the historical context in which that law was drafted and passed. Textualism and originalism differ on which they emphasize. We can debate the merits of text vs. history, but both philosophies of jurisprudence share a deep commitment to taking the law and the Constitution seriously, something that living constitutionalism lacks.
The victory for the conservative movement isn’t just that the current Supreme Court is dominated by conservative judicial philosophy, but that even the progressive justices must take the Constitution seriously – even if they ultimately don’t always rule in strict adherence to it.
But sadly, just as respect for text and tradition has prevailed in the courts, the same can’t be said about the public at large. Progressive activists want President Biden to make abortion legal from conception everywhere in the United States by executive fiat. Biden himself has taken it upon himself to cancel student loan debt by executive order, despite the fact that he has no power to do so. Environmentalists want him to declare a “climate crisis” so that he can radically expand executive power to fight climate change without legislation authorizing such action.
On the right, some supporters of Donald Trump wanted the former president to refuse to leave office despite the fact that he lost an election. They cheered his misappropriation of Pentagon funds to “build the wall” along the Mexican border. Common good constitutionalists want conservative judges to throw out their originalism and textualism and rule in accordance with their own interpretation of Christian theology. And some reactionaries are ready to end the American republic and usher in a new Caesar.
Perhaps it’s time for conservatives who still respect the rule of law to train their efforts on the American public, not just the courts.
This calls to mind a famous speech given by the first Republican president: Abraham Lincoln’s 1838 Lyceum Address. In it, he laments the rise of “mob law” and “the increasing disregard for the law which pervades the country; the growing disposition to substitute the wild and furious passions, in lieu of the sober judgement of the Courts; and the worse than savage mobs, for the executive ministers of justice.”
Sounds familiar. Lincoln goes on to argue for a restoration of American civic religion, or reverence for the law. He argues that a free society requires such reverence and civic virtue and that without it the American Republic will “die by suicide.” Less than three decades later, he would captain the ship of state through the closest America has ever come to death by suicide.
And yet, this champion of respect for the law and fidelity to the Constitution, during that very crisis, took extralegal powers into his hands, suspended habeas corpus, and violated the Constitution more than perhaps any other president before or since. Does this make Lincoln a hypocrite? Does this represent a contradiction in his thinking or an evolution that negates his earlier argument? Does it demonstrate that power corrupts – even a great man like Lincoln?
No. It does not. The Civil War was the closest this nation has ever come to ending. Had the South prevailed, it is doubtful that we would today be living under the Constitution that was signed in 1789. Lincoln recognized that the only legitimate reason to violate the Constitution was to preserve it. His unconstitutional actions actually came from his devotion to the rule of law, not despite it. He maintained his fidelity to the rule of the U.S. Constitution to the point at which he was willing to temporarily violate that document in order to save it.
The exception proves the rule. Only the most extraordinary of circumstances justified Lincoln’s unconstitutional actions. By their extraordinary nature, we should see that the justifications made by many today to disregard the law are invalid. Lincoln’s circumstances define the bar against which every other attempt to violate the Constitution must be measured. None measure up.
We are not faced with a similar crisis today. But we are surrounded by many who see Lincoln’s most admirable quality as his willingness to violate the Constitution, rather than his dedication to it. If we are to continue to live in a constitutional republic, we must emulate his dedication. The Constitution means something. And that meaning is paramount. If the law means something, it cannot mean nothing, and if it can mean anything we please, then it must mean nothing. If anyone should care about that statement, it should be conservatives.
Coda – The New Right
Some on the New Right seem to think caring about the rule of law (as opposed to the culture war) makes you some kind of RINO squish. But few things are more conservative than the principle of the rule of law. Despite the dreams of anarchists, you need the rule of law for the free market to work, because you need something to enforce contracts and protect property rights. (Then again, some who call themselves conservative no longer seem to care about the free market.) Of all the things that distinguish civilization from barbarism, the rule of law is perhaps foremost. Arbitrary power and a culture of lawlessness are not only antithetical to public order, but to public virtue.
Some will argue that we have departed so far from the rule of law to the rule of laws that we need some arbitrary power to restore it (or more likely to fight wokeness). They’ll tell us we’re in a cold “Second Civil War.” But extraordinary claims require extraordinary evidence, and this one is belied by the facts on the ground. America in 2022 may be decadent. But decadence isn’t solved by raw power plays. And drag queen story hour and #saypubic advertisements aren’t signs that the Constitution has failed and America is over. If we survived the 1860s, we can survive this. Get a grip.