Tag Archives: liberty

About That Rule Of Law…

On Tuesday, I spoke at the Zionsville Christian Church. I had been asked to define what is meant by the “rule of law,” and to explain why it is important. This is what I said. (Warning: longer than my usual posts.)

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Those of you who read my blog know that I refer a lot to the rule of law—how important it is, and how very negative the consequences are when governments ignore or violate it. What I don’t do often enough, however, is explain just what the rule of law is, and why it is the absolute bedrock of democratic governance.

Depending upon how you count them, there are seven essential elements that together make up the rule of law.

You’ve undoubtedly heard the first—the one most often cited by scholars and lawyers. That’s legal supremacy, which means that the law—the same law—applies to everyone. Another way to say that is “No one is above the law.” The importance of equal application of the law to everyone should be obvious; if elected or appointed officials weren’t restrained by the law, if We the People had to obey the laws but those in authority didn’t have to, the result would be what we lawyer types like to call “arbitrary and capricious” behavior by government officials, who would be free to use their authority in unfair and unjust ways, as monarchs used to do.

In democratic countries pledged to the rule of law, we don’t have kings who are free to ignore the rules the rest of us must live by.

The second element is really another version of the first. If the law applies to everyone, then everyone is entitled to equality before the law.  In an ideal “rule of law” system (which I’m compelled to admit we’ve never had), everyone would have equal access to—and equal treatment under– the laws of the land. Things like social status, wealth, elective office, and popular or  unpopular political beliefs wouldn’t affect access to or operation of the legal process or the way the laws are applied to individuals. The rule of law requires us to work toward a system in which laws and legal procedures are applied to all individuals equally and without favoritism.

To take an example from the headlines, under the rule of law, a government accusation that someone is a “bad actor” or a gang member, or “a threat to America” cannot relieve that government of its obligation to demonstrate the validity of such accusations in a court of law before it can punish that individual. That is what is meant by “due process of law” and due process is foundational to a fair and impartial legal system.

The third element of the rule of law is accountability. In other words, We the People are entitled to know what our government is doing, and whether it is functioning in a constitutionally appropriate manner. In the United States, a major element of accountability is built into our constitutional structure—what most of us learned in high school government classes as “checks and balances”—the division of legal authority among the Executive, Legislative and Judicial branches of our government.

We are now seeing what happens to accountability and the rule of law when one branch of our government fails or refuses to exercise the powers granted to it by the Constitution—when the legislative branch allows the executive to appropriate and abuse powers that have been vested in the legislature. Future historians—assuming we have them—will identify that cowardly failure as a rejection of both elective responsibility and the rule of law, and a betrayal of the Constitution and of the individual legislator’s oath of office.

The fourth element of the rule of law is its interpretation and application by a fair and independent judiciary. Federal judges have lifetime appointments because the Founders’ believed that judges should be shielded from political passions and reprisals, that they should be able to apply the law and facts as they see them, free of pressure or bias.

That judicial independence has recently come under an unprecedented attack, when the administration arrested a Wisconsin judge who failed to knuckle under to demands by ICE to turn over a defendant in her courtroom.If Judges can be arrested for disagreeing with the executive branch about their authority,–in this case, evidently because the judge found ICE had an incorrect warrant–we no longer have checks and balances or the rule of law.

The Founders’ goal of judicial independence remains important, but it’s true that in today’s America we have encountered a consequence to lifetime appointments that the Founders didn’t foresee; Americans today live much longer and there is consequently much less frequent judicial turnover –especially at the Supreme Court. That concern is heightened by evidence that at least two members of the current high court are ethically compromised.

The lower federal courts, on the other hand, have been functioning  properly; those courts have issued a number of important decisions upholding the rule of law and restraining Trump’s flood of unlawful and unconstitutional executive orders. Unfortunately, within the legal community there is substantial concern about the degree to which our compromised Supreme Court will uphold those lower court decisions. Should it fail to do so, we risk losing the rule of law.

If we do emerge from this terrifying time with our legal system largely intact, imposing 18 year term limits on Supreme Court justices—as many scholars have suggested– would achieve the Founders’ goal of insulating jurists from political pressure, while also minimizing the risks of judicial senility. (If the legislature once again operates properly, judges shown to be ethically compromised can be impeached.)

The fifth element of the rule of law is certainty. Laws must be clear and understandable in order to allow citizens to know what behaviors are expected of them. When you read that a law has been found “void for vagueness,” it’s because some legislative edict has failed to clearly explain what behavior is being banned or required. Certainty also requires continuity and predictability—meaning legislators should avoid frequent and dramatic changes in the laws that make it hard for citizens to keep abreast of their responsibilities.

The sixth element, again, is implied by others: all citizens must have access to the legal system and the means of redress. That means all are entitled to legal representation and to fair trials with impartial judges.

And finally, the seventh element echoes the protections in America’s Bill of Rights: the rule of law must protect the rights that have been found essential to human liberty—what we call “human rights.” As I used to tell my students, it’s important to recognize that the Bill of Rights does not confer rights on American citizens—it forbids the government from interfering with the inalienable rights that we possess by virtue of our humanity.

Those basic rights include freedom of speech and religion, the right to due process, the freedom to go about our business without arbitrary interference, freedom from excessive, cruel or unusual punishments, the right to trial by jury, the right to be treated equally by our government…in other words, the right to live under a regime that respects the rule of law.

Everything I’ve said so far has revolved around longstanding notions of fairness and morality, but I would be remiss if I didn’t point out that there are also very practical reasons for supporting the rule of law. Mountains of scholarly research have confirmed that countries where the rule of law is established and respected are more stable and have far more robust economies. As we are seeing, uncertainty and chaos are bad for business!

Attacks on the rule of law like those we are currently experiencing destroy trust in government, undermine the economy, and promote conflict and violence.

No government is perfect, and ours certainly can be improved. But  improvements have to be made with fidelity to the Constitution and the rule of law—not from the willful destruction of the underlying philosophy of this country, a philosophy I call “The American Idea.” It is that Idea, that philosophical framework, that insistence on the primacy of the rule of law, that has fostered social progress and truly made America great.

It’s up to We the People to protect it.

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Deconstructing Liberty

There are so many words we Americans throw around, assuming we are communicating–assuming that my understanding of term X is the same as your understanding of term X. Often, the similarities in understanding are sufficient to allow us to communicate, at least superficially–but sometimes, it’s worth delving into the nuances of words the meanings of which we take for granted.

Like “liberty.” 

An article from Civic Ventures pointed to a reality that many economists have noted (a reality of which most of our politicians seem unaware): genuine liberty requires a measure of economic security. The expression of even the most basic civil and democratic liberties depend upon a basic floor of economic security–you are unlikely to indulge your right to free speech or participate in democratic deliberation if your entire life is spent scrabbling for food and trying to keep a roof over your head.

The article begins by quoting Nobel prizewinning economist Joseph Stiglitz on the effect of income inequality on democracy:

“As income inequalities grow, people wind up living in different worlds. They don’t interact. A large body of evidence shows that economic segregation is widening and has consequences, for instance, with regard to how each side thinks and feels about the other,” Stiglitz writes. “The poorest members of society see the world as stacked against them and give up on their aspirations; the wealthiest develop a sense of entitlement, and their wealth helps ensure that the system stays as it is.”

And because that gap between the haves and have nots has become so vast, he writes, something much more significant than personal wealth is at stake: Our very democracy is imperiled.  “Democracy requires compromise if it is to remain functional, but compromise is difficult when there is so much at stake in terms of both economic and political power,” Stiglitz concludes. 

Stiglitz also points out that economic security is an essential component of freedom. It doesn’t matter how “free” you are from government intrusion “if you’re one $500 expense away from total economic ruin and your rent goes up by hundreds of dollars every year. “

The article goes into a lengthy discussion of America’s economy, explains the successful performance of a variety of measures initiated by the Biden administration, and ends with a very important point:

After the success of the Child Tax Credit, it’s become clear that direct cash payments with no strings attached are a much more successful poverty reduction program than vouchers or other kinds of means-tested relief programs. There’s still a lot to debate about guaranteed income programs—I’m particularly concerned about them being misused as subsidies for low-wage employers—but it’s clear we’re entering a new phase of the public guaranteed income discussion. 

The question is no longer about whether it makes good sense to make direct investments in people. Now, the conversation is turning to how and when we make those investments happen.

That conversation should include a recent, fascinating interview of philosopher Elizabeth Anderson in Persuasion. Anderson has long been focused on the workplace, and the relative absence of workers’ rights enjoyed by non-union employees. She  echoes Stiglitz’ concerns about the effects of economic deprivation on democracy, and the individual’s ability to participate in political activity on anything remotely like an equal basis:

One of my agendas is to get us thinking more systematically about class inequality, because recent political discourse has been mostly focused on race, gender, sexual identity and sexual orientation issues. And one of the things I want to do is bring class back in. Looking at class, I think, provides us a better basis for building cross-cutting coalitions along the other identities. But also because we’re in a state now where our class inequality is quite extreme and it’s getting worse. And that’s not just a matter of how much money people have, but about their political power. In practice, a society which has lots and lots of billionaires is never going to be able to insulate politics from the overwhelming power that money supplies—political power, political influence. And so we have a threat to democracy here.

Read together, these articles–and really, hundreds like them–focus on a very troubling aspect of America’s current reality. We have millions of people who are effectively disenfranchised by poverty. They may have rights “on paper,” but the constant struggle to put food on the table precludes any enjoyment of those rights, and similarly precludes any meaningful participation in the democratic process. 

Do the working poor really enjoy “liberty” in any meaningful sense?

Think about that–and re-read my arguments for a UBI…

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Citing To Me

Sunday, I spoke to the Danville Unitarians about equality and the 14th Amendment (which has been getting some public interest lately, thanks to the question whether Section 3 disqualifies Trump). As I was preparing that talk, I looked back through some old posts, and came across one from April of 2016–before Trump and his distorting effect on the issues of governance and public policy that now form the bulk of posts here.

It’s probably tacky to repeat myself, but the post raised a fundamental question with which we continue to wrestle–namely, what does genuine liberty look like–so I’m repeating it here (and yes, sort of taking the day off…)

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In my classes, when I get to the 14th Amendment’s Equal Protection Clause, I generally begin with a discussion of what Americans mean by “equality,” and the perceived tension between equality and liberty.

Clearly, if we are talking about the operation of law and civil government, we are bound to understand the call for equality as limited to those areas in which government operates, and not surprisingly, there is a pretty substantial literature exploring what it means to be “equal before the law”– to have equal civil rights and liberties.

It isn’t simply us lawyer types, either; political philosophers have argued for years–okay, centuries!–that government efforts to nudge us in the direction of egalitarianism–that is, in the direction of material equality— diminish liberty and are ultimately immoral, because advocates of redistribution tend to ignore the issue (near and dear to more libertarian hearts) of merit or desert.  Those who see it that way read the famous Marxist admonition: “from each according to his ability, to each according to his need” as support for expropriation — a system where productive and conscientious workers would be taken advantage of by the ineffectual and/or lazy.

Americans have a deeply-rooted cultural belief that people are poor because they are morally defective, and it didn’t start with the Tea Party. (Actually, it started with Calvin.) I once traced Indiana’s welfare system back to the 15th Century English Poor Laws- laws that prohibited people from giving “alms” to “sturdy beggars.”

So here we are, stuck, policy-wise.

We have a longstanding (and probably insurmountable) concern about the fairness of taking money from people who have (at least theoretically) earned it in order to help people who–for whatever reason–have much less. In more selfish eras (like now) that distaste for redistribution jaundices our approach to taxes for even the most traditional civic purposes. Paying more taxes than absolutely necessary (i.e., police, fire and maybe the sewer system)  is seen as state-sponsored theft, or at the very least, a deprivation of liberty.

As I previously noted, it isn’t difficult to find people arguing that efforts to narrow the gap between rich and poor (redistributive taxes) are assaults on liberty. If there is one thing Americans appear to agree upon, it is the pre-eminence of liberty over other values. What we don’t see discussed very often, however, is what we mean by liberty–and the extent to which government is responsible for ensuring that citizens can enjoy it.

Liberty, at its most basic, is my ability to live a life of my own choosing, so long as I am not harming someone else–my right to live where I like, marry whom I love, choose or reject a church, vote for candidate A rather than B, raise my children as I see fit, opt to spend the weekend at a museum or in the garden….But there are a lot of people in my state (as elsewhere) who do not have liberty in any meaningful sense, that is, the ability to make even these minimal choices, because every waking moment is spent simply trying to survive.

Every person struggling to make ends meet is not a “sturdy beggar,” trying to pull a con. (If research is to be believed, relatively few are.) But rather than trying to change this stubborn cultural meme, or reminding ourselves of the multiple ways we all benefit when societies are more equal materially, let me ask a different question.

If a 10% increase in your taxes could be shown to  allow every American to enjoy at least a minimal level of liberty/self-determination–would you pay it?

Or is the liberty you cherish limited to your own? If it’s the latter–I think that’s privilege you are valuing, not liberty.

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The Stakes II

A couple of days ago, I considered the stakes of this year’s election choices, and speculated about whether and to what extent the abortion issue will drive both turnout and results. What I failed to explain ( thanks to the word limit I have self-imposed for these daily rants) is why the debate about reproductive choice is in reality about far more than a woman’s right to control her own reproduction, important as that is.

The deeply dishonest Dobbs decision struck at a fundamental premise of America’s Constitution, as we have come to rely upon it– the belief in limited government.

When politicians talk about “limited government,” they generally focus on the size of government, but the U.S. Constitution defines those limits in terms of authority, not size. What is to be limited is the power of government to prescribe certain decisions that should be left to the individual. In the original Bill of Rights, the federal government was forbidden to censor speech, prescribe religious or political beliefs, and take other actions that were invasions of fundamental rights–rights for which early Americans demanded recognition.

Over the years, those limitations on federal government power were imposed on state and local government units, and evolving cultural and social norms prompted a fuller understanding of what sorts of decisions individuals are entitled to make without government interference. I frequently cite what has been called the Libertarian Principle, because that principle undergirds America’s particular approach to government. The principle is simple: Individuals should be free to pursue their own ends–their own life goals–so long as they do not thereby harm the person or property of someone else, and so long as they are willing to accord an equal liberty to their fellow citizens.

The gender of your chosen mate, your adherence to a non-Christian religion (or your utter rejection of the notion of divinity), your choice to reproduce or not, and a number of other life choices are simply none of government’s business. (As Jefferson is often quoted, such decisions “neither break my leg nor pick my pocket.”)

The Libertarian Principle was central to the original Bill of Rights, and its application has  extended as “facts on the ground”–scientific and cultural–have changed. Ever since 1965, when the Supreme Court handed down its decision in Griswold v. Connecticut– informing the Connecticut legislature that a couple’s decision to use contraceptives was none of government’s business–the belief that there are areas of our lives where government simply doesn’t belong has been absolutely central to Americans’ understanding of liberty.

When I was much younger, the importance of limiting government to areas where collective action was appropriate and/or necessary—keeping the state out of the decisions that individuals and families have the right to make for themselves– was a Republican article of faith. It was basic conservative doctrine. Ironically, the MAGA folks who inaccurately call themselves conservative today insist that government has the right—indeed, the duty– to invade that zone of privacy in order to impose rules reflecting their own particular beliefs and prejudices.

It’s critically important to understand that what is really at stake in what we shorthand as the “abortion issue” is that fundamental Constitutional premise. Forcing women to give birth, denying medical care to defenseless trans children or forbidding school children to read certain books are not “stand-alone” positions. They are part and parcel of an entire worldview that is autocratic and profoundly anti-American.

I used to point out that a government with the power to prohibit abortion is a government with the power to require abortion. (As an ACLU friend used to say, poison gas is a great weapon until the wind shifts.)

The issue at the heart of the Bill of Rights–as I interminably repeated to my students–isn’t what decision is made. The issue is who gets to make it. In the government system devised by our Founders, certain decisions are simply off-limits to government. I may disagree with your religious beliefs or political opinions; I may disapprove of your choice of marriage partner or your selection of reading material–but I cannot use the government to countermand your choices and require behaviors more to my liking.

It is that fundamental premise that is at stake in this year’s elections, which will pit the MAGA theocrats and autocrats against those of us who want to preserve America’s hard-won civil liberties and individual rights.

The abortion issue is about so much more than abortion, and I have to believe that, at least at some level, most Americans realize that.

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Speaking Of Higher Education

With all the media focus on a handful of “elite” universities, perhaps it’s time (or overdue) to take a look at some of the hundreds of small colleges and universities that dot the country and are most definitely not “woke.” A number of them are religious, and several–like Hillsdale–are proudly “conservative.” (I put quotes around conservative because true conservatives have very little in common with the political movement that has appropriated that label.)

I’ve been aware of Hillsdale for a number of years. I’ve had graduate students who matriculated there, and several years ago I wrote a book about a libertarian organization headquartered in Indiana that–according to its Executive Director– was scammed by Hillsdale and its then-President. I still get –and routinely discard–their slick newsletter.

The New York Times recently did a “deep dive” into Hillsdale’s more recent political shenanigans.

A few days before Thanksgiving 2020, a half-dozen or so people gathered at the home of a Michigan lawyer named Robert E. Norton II.

Norton is the general counsel of Hillsdale College, a small, conservative Christian school in the southern part of the state. One of his guests was Ian Northon, a Hillsdale alumnus and private lawyer who did work for the college. Also in attendance were a couple of state lawmakers, Beth Griffin and Julie Alexander, who represented conservative districts north of Detroit.

Northon would later describe the meeting to the congressional committee investigating the Jan. 6, 2021, storming of the U.S. Capitol. “Somebody at Hillsdale reached out to me, said they are going to have this little meeting,” he testified. “I went to it. There were a handful of reps there, and then Giuliani called in.” That, of course, was Rudolph W. Giuliani, the former New York City mayor turned personal lawyer to President Donald J. Trump.

Hillsdale was already well connected to the Right. Northon had worked for the Amistad Project, an “election-integrity watchdog” that the Times reported “emerged as a primary partner in the Trump campaign’s election-fraud litigation.” He’d been a vice president of the Bradley Foundation, a Milwaukee-based Rightwing philanthropy that has funded groups pushing voter-fraud conspiracy theories.

And most prominent was Hillsdale’s president, Larry P. Arnn. Over two decades, Arnn had fashioned the college as an avatar of resistance to progressivism, all the while amassing relationships with many of the influencers and financiers who were transforming conservative politics in America. By the time Trump swept into the White House in 2017, Arnn had made Hillsdale an academic darling and supplier of philosophical gravitas to the new right.

So prominent was Arnn that he was mentioned as a possible education secretary before losing out to Betsy DeVos, part of a wealthy Michigan family of major conservative donors and Hillsdale patrons. (Her brother, the private-security contractor Erik Prince, is an alumnus.) Hillsdale graduates became aides in the Trump administration and on Capitol Hill and clerks at the Supreme Court. (“We have hired many staff from Hillsdale,” says Marc Short, who served as chief of staff to Trump’s vice president and Arnn’s longtime friend, Mike Pence.) In the Covid years, the backlash against school closures, mask mandates and diversity programs made education perhaps the most important culture-wars battleground. Hillsdale was at the center, and nowhere more than in Florida, where Gov. Ron DeSantis frequently invoked Hillsdale as he sought to cleanse the state’s schools of liberal influence. “How many places other than Hillsdale are actually standing for truth?” he said at a 2022 Hillsdale-sponsored event in Naples, Fla.

The Times article explored the way in which this small Michigan college got mixed up in the plot to subvert American democracy, and it certainly makes for fascinating reading. But Hillsdale is hardly the only small religious institution providing an academic environment actively indoctrinating students against progressive political beliefs.

There are some 900 Christian-affiliated colleges in the United States, and while not all of them emulate Hillsdale, those that  pride themselves on turning out “conservative” students collectively educate thousands of young Americans–far, far more than matriculate from Harvard, Yale, Stanford, Chicago, et al.

I suppose pointing this out is a form of “what-aboutism.” I certainly do not intend it as an argument that all is well in the hallowed halls of the Ivy League; there is plenty of hypocrisy masquerading as inclusiveness on those campuses, and the fact that their graduates are over-represented in government and academia makes them proper targets for evaluation and–when warranted– criticism.  

I just think that criticism should be–in the immortal words of Faux News– “fair and balanced.” For every Harvard graduate, there are probably twenty from schools like Hillsdale, Oral Roberts and Liberty– and their graduates are the ones passing anti-gay and anti-women measures in state legislatures around the country.

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