Tag Archives: rule of law

Charlie White, the GOP, and the Rule of Law

After the Republicans in the Statehouse passed House Bill 1242, changing the election law in order to avoid the consequences of having run an ineligible candidate, my husband shook his head. “It’s enough to make you ashamed of ever having been a Republican.” This from a man who worked for the GOP for over fifty years–working on campaigns, working at the polls, driving people to vote, and serving in a Republican administration.

We have both bemoaned the radicalization of the party we used to call ours: the mean-spiritedness, the shortsighted focus on tax caps at the expense of public goods, the homophobia and the thinly veiled racism that emerged in the wake of Obama’s election. But HB 1242 is nothing less than an attack on the rule of law.

John Adams famously said that our constitution established the rule of law, not the rule of men. The Founders gave us limited government. That didn’t mean that the size of government was to be limited, as many seem to think. It meant that the same rules have to apply to everyone, that there are limits to the ways in which official power can be used.

Scholars identify eight elements of the rule of law:

  • Laws are necessary, and must apply to all–including government officials.
  • Laws must be published.
  • Laws must be prospective in nature so that the effect of the law may only take place after the law has passed.
  • Laws must be reasonably clear and specific, in order to avoid arbitrary enforcement.
  • Laws must avoid contradictions.
  • Laws cannot require people to do impossible things.
  • Law must stay sufficiently constant through time to allow rules to be understood; at the same time, the legal system should allow for timely revisions when the reasons for the law have changed.
  • Official action should be consistent with the declared rule.

Our sense of fundamental fairness is offended if someone is punished for violating a rule that was passed only after he acted. We would be outraged if a person who violated an existing law managed to get it changed so that he escaped punishment. We might not be able to point to the precise element of the rule of law that had been violated in such cases, but we’d know instinctively that it was wrong.

This over-reach by the Indiana GOP has generated a petition drive, asking Governor Daniels to veto the measure. I don’t hold out much hope, but I signed the petition, and I hope many others will as well.

If the legislature ultimately decides that current laws governing electoral vacancies should be changed, fine. Those new rules can be applied prospectively, to future cases. Changing the rules when they fail to favor you, so as to escape the consequences of your own misbehavior, isn’t just unfair. It isn’t just contrary to the rule of law.

It is unAmerican.

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Rendering Judgment

In the wake of the Bush administration, Americans are debating the meaning and importance of the rule of law. With Justice David Souter’s resignation, that discussion has intensified.

 

Most legal analysts give Souter high marks, and it is worth considering why. Souter was a brilliant and accomplished legal scholar, but there are many equally brilliant lawyers who would make terrible judges. Intellectual credentials are necessary, but they are not sufficient. Judges need an appropriate “judicial temperament.”

 

What does that mean?

 

Judges should demonstrate a commitment to what I call the American Idea—the vision of individual liberty that grew out of the Enlightenment and found its first institutional home in the U.S. Constitution and Bill of Rights. Many years ago, Judge Learned Hand defined the spirit of liberty as “the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias.” It would be hard to improve on that definition.

 

During his own confirmation hearings, Chief Justice Roberts likened judges to umpires. This was taken to mean that both simply serve to apply clear rules, with a minimum of “interpretation.” Several of my colleagues immediately pointed out that baseball umpires have wide and unquestionable discretion (one cited a handbook for umpires that instructed officials to “interpret the rules according to their spirit and purpose”), and dismissed the comparison as misleading. I disagreed. I think—I hope—what Roberts meant was that an umpire is not a player, not a member of either team. The umpire’s job is to call them like he sees them—recognizing that ultimately he can only “see” through his own eyes.

 

Much has been made of President Obama’s use of the term “empathy” to describe both David Souter’s service and the qualities he wants in his replacement. Words mean different things to different people, but to me, “empathy” implies the absence of rigid ideology, the ability to evaluate each case on its own merits, and an appreciation for the human consequences of decisions. 

 

Cases that make it all the way to the Supreme Court are by definition those without clear-cut, obvious answers. Judges must apply the principles and values of our constitution to situations the Founders never contemplated. (What did James Madison think about porn on the internet? Are sobriety checkpoints Fourth-Amendment “searches”?)

 

Some years ago, I was a member of a panel of judges for Indiana’s We the People constitutional competition. One of the student teams gave a particularly insightful answer to a question posed by our panel. One of my fellow judges looked at those high school students for a long moment, and then said something I still remember. “You know, the constitution’s like a song. It’s important to know the words; but you guys also hear the music.”

 

David Souter heard the music. Let’s hope his successor does as well.