"The Rule of Law"

Joseph Fishkin

The rule of law is one of those broad concepts, like human dignity or equal opportunity, that we all can agree we support in part because we don’t entirely agree on what it means.  Two especially unusual conceptions of the rule of law offered by politicians on the right, in this country and elsewhere, recently underscored this point.

The first came from Viktor Orban, the Prime Minister of Hungary, under heavy fire from the European Union for undermining the rule of law (by, among many other things, limiting the power of his country’s Constitutional Court and manipulating the judicial retirement age to pack the courts).  Orban says it is actually the EU that is undermining “the rule of law” in his country.  “The rule of law means people do not rule other people,” he argued in a speech in March.  It means law without “political bias,” and law that “does not make distinctions between countries” large and small.  Thus, he argues, when the EU singles out Hungary, treating it unfairly and exhibiting “political bias” by attacking the actions of Orban and his party, it is the elites of the EU who are undermining the rule of law.  Call this the protecting-democracy-against-elites conception of the rule of law.  On this view, Orban is the democratically elected (asterisks omitted) leader of the nation; if elite bodies such as the EU that were not similarly elected by the Hungarian people act to constrain Orban’s power or his party’s power, they are exhibiting “political bias” and in that way vitiating “the rule of law.”

The second came from Mike Pence.  This month he called former Sheriff (and now U.S. Senate primary candidate) Joe Arpaio “a tireless champion of strong borders and the rule of law.”  This statement implies a different but equally unorthodox conception of the rule of law.  I would think almost any defensible conception of the rule of law would be thick enough to include some principle that law enforcement must conduct itself without racial bias.  (For a powerful statement of this connection, consider Margaret Marshall’s description of the “lawless” government of her native South Africa under apartheid.)  But some might favor a thinner conception of the rule of law, independent of such substantive questions of equality and justice.  However, even the thinnest conception of the rule of law would almost inevitably require a principle that law enforcement has a particularly strong obligation, defeasible only in extreme circumstances, to obey the orders of legitimately constituted courts of appropriate jurisdiction.  Otherwise, how can law enforcement plausibly be regulated by law?  Joe Arpaio, as Sheriff, not only racially profiled Latinos, stopping them pretextually and arresting and detaining them even where there was no plausible criminal charge, but also was convicted of contempt of court for willfully refusing to obey a court order to stop doing this.  (President Trump subsequently pardoned him of this offense; Pence later declared him a “champion” of “the rule of law.”)  If we take Pence’s comment seriously, it seems to rest pretty squarely on a conception of the rule of law that renders that concept more or less the equivalent of what other politicians of like mind have long called “law and order.”

What brought these two unusual conceptions of the rule of law to my mind today was President Trump’s outraged insistence that the Department of Justice inspect both itself and the FBI to determine whether there was any improper politically motivated surveillance of the Trump campaign in 2016.  I doubt that Trump himself has any firm conception of “the rule of law.”  But he has embraced “law and order” as a rhetorical and political trope like no President since Nixon.  He would almost certainly find congenial his vice president’s dangerous conflation of the rule of law with law and order.  And yet, in both rhetoric and action, Trump seems to identify at least as closely with the core premises of the protecting-democracy-against-elites conception of the rule of law offered by Viktor Orban.  I suspect that one is actually the more dangerous of the two, as I’ll explain below.


For Trump and many of his allies, as for Orban, the central political fact of our time is that Trump was legitimately democratically elected by the people as President (asterisks most definitely omitted), and his opponents, the self-styled defenders of the rule of law, were not.  Just as the unelected elites of Europe are aiming to enforce the rule of law but in Orban’s view are merely exhibiting a “political bias” against his party, Trump and his allies imagine a “deep state” of civil servants and law enforcement professionals whose efforts to enforce the rule of law are similarly just a cover for partisan “Political Purposes.”  And so, just as in the world of fake news there is no truth but only propaganda, in the world as conceived within this protecting-democracy-against-elites conception of the rule of law, there is no sense in which the rule of law is a constraint on power.  It is simply a tool in the partisan pursuit of power.  It doesn’t matter on this view if James Comey, Andrew McCabe, Robert Mueller, and so on, are Republicans: You can tell from the fact that they have attempted to enforce “the rule of law” in ways that might constrain President Trump that they are his political opponents.

The American political and legal system has a variety of strengths from a rule-of-law point of view.  But in comparison to other mature democracies, one of our distinct weaknesses, which has long been pointed out by scholars of election law, is our relative lack of truly nonpartisan institutions capable of policing and regulating our democracy.  We do not have the nonpartisan bureaucrats to run our elections on which most nations in Western Europe rely; instead our state election systems are run by partisan elected officials, typically secretaries of state who are often aspirants to higher political office.  (When we do try to create nonpartisan expert regulatory institutions in this country, such as independent redistricting commissions, staffing them is an interesting challenge.  It is truly the rare American who has relevant expertise and no strong partisan affiliation.)  All this leaves this country a bit more vulnerable, compared to some other mature democracies, to the widening gyre of Trumpism, the corrosive and potentially somewhat self-fulfilling view that all the purportedly nonpartisan moving parts in our system—from the news pages of newspapers to career civil servants to law enforcement professionals—are shot through with partisan bias.  From that perspective, the only real “rule of law,” as Orban says, is to allow the democratically elected rulers to rule.

Our institutional guardians of the rule of law, from career Justice Department lawyers to law enforcement, have so far acted like people who well understand the dangers of the Trumpist protecting-democracy-against-elites conception of the rule of law.  Comey and others knew very well that it would be politically explosive to reveal the existence of the Trump/Russia investigation during the campaign, so they fatefully kept it secret even as they loudly publicized the Clinton/email server investigation.  It now appears that the FBI used an informant/asset to interview Trump campaign personnel rather than calling them to come before FBI agents and be interviewed in a way that would be more likely to make news.  But these moves tend to backfire in a predictable way.  They create opportunities to portray the secret investigation as one that is secretive because it’s an illegitimate, politically biased witch hunt.  In this way, efforts to tiptoe carefully around the protecting-democracy-against-elites conception of the rule of law tend instead to give it more power.

Perhaps I am naïve, but if I heard that the FBI had been surveilling my preferred presidential candidate for possible connections to foreign powers attempting to influence the American election, I would be deeply worried—primarily about my candidate.  That’s because despite Hoover-era investigations of civil rights protesters and every other abuse before and since, my presumption remains that our nonpartisan institutions of law enforcement usually have some good reason to be looking where they’re looking, especially when such looking required judicial assent.  This means I hold a certain conventional view of the rule of law.  The widespreadness of this belief is in fact an element of the rule of law as usually understood.  For Trump to flip the rule of law around, Orban style—to convince his followers that the law enforcement professionals who purport to be defending the rule of law are instead undermining it—is no small feat.  If he and his allies succeed in this audacious project, the President will have proved conclusively that Americans’ belief in the rule of law is, at best, a belief in a shared slogan, not a shared concept.  As with so many things about this President, the most disturbing part of that is not what it says about him but what it says about us.
Posted 12:36 PM by Joseph Fishkin [link]