There
are at least two ways to understand Vice President Pence’s statement that Joe
Arpaio is a champion of the rule of law.
One is obvious and the other is subtle.
It’s not entirely clear which reading better captures Pence's intentions.
They’re both bad, but the subtle one is
considerably worse.
To
lay a piece of groundwork: Joe Arpaio is not, in fact, a champion of the rule
of law. He is a persistent lawbreaker
who systematically violated the Constitution and was held in criminal contempt
for court for refusing to mend his ways.
So on the obvious reading of Pence’s statement, the Vice President was
saying something that’s obviously untrue, presumably with the intention of
reaping some political advantage. He was
engaged in political gaslighting.
But
there’s also another possibility—a more subtle and more threatening one. Maybe Pence wasn’t dissembling one bit when
he described Arpaio as a champion of the rule of law. Maybe the Vice President believes what he
said.
Like
many appraisive terms in law and politics, “the rule of law” sometimes means
different things to different people. It’s
a cluster concept with several components, and there is legitimate contestation
as to exactly what it entails. Most of
the time, we hope, enough of the participants in the discourse share enough of
a sense of what “the rule of law” means that the term is useful when we discuss
law or government. But one of the things
that happens in political conflict is that different people attach different meanings
to appraisive terms. The different uses
of the terms then reflect the underlying substantive disagreements.
I
would like to think that the Vice President of the United States would not regard
a persistent and adjudged violator of the Constitution as a champion of the
rule of law. But in the year 2018, and
given Pence’s statement about Arpaio, I can’t assume that to be true. In fact, interpretive charity toward the Vice
President—that is, the willingness to think that he might not be lying—requires
one to take seriously the possibility that Pence actually believes Arpaio to be
what he says Arpaio is: a champion of the rule of law.
And
it’s conceivable that he thinks that. In
particular, it’s conceivable that Pence (and not only Pence) has a conception
of “the rule of law” that is less about the idea that officials must comply
with the Constitution—or, more generally, that governmental power is to be exercised
within limits set by law—than it is about the idea that people who break the
law, or more precisely that people who break certain kinds of laws, are to be punished aggressively. On
the latter view, the real offense to the rule of law (as relevant to Arpaio’s
story) comes from people who enter the country illegally and from people who
commit various offenses against the peace and order of Arizona. Arpaio is a champion of the rule of law
because he dealt with such people firmly (or, perhaps, because he represents
the idea of dealing with such people firmly).
Yes, Arpaio also did lots of bad things even to people who broke no
laws. But that might be less important
on Pence’s conception of the rule of law than the need to uphold the legal
regime that he sees Arpaio as standing for. Like "law and order," "the rule of law" might mean, to some audiences, more or less what "tough on crime" means.
I
have a different view of the rule of law—one on which governmental authority
resides in offices rather than persons and must be exercised within the limits
of what law permits. That’s not the only
thing that the rule of law requires, but it’s fundamental. It’s now open to question, however, whether
the Vice President (and not only the Vice President) shares that view. If we take him at his word, he well might not.