Tag Archives: rule of law

Rule of Law? Respect for Democracy? Not in the Age of Trump…

Remember the quote–attributed to John Adams–to the effect that the then-new American Constitution had created “a government of laws, not men”?

One of the most important improvements in our human efforts to improve governance was development of the concept of rule of law–the radical notion that fair rules should be established and everyone–including government officials and others in positions of power– should be expected to follow those rules (including the rules on how rules should be changed).

Adherence to the rule of law, in spirit and fact, is absolutely essential to the legitimacy of a governing authority.

Which brings us to the truly outrageous behavior of Republican lawmakers in North Carolina. As the New York Times reported earlier this week,

Republicans in the North Carolina legislature on Wednesday took the highly unusual step of moving to strip power from the incoming Democratic governor after a bitter election that extended years of fierce ideological battles in the state.

After calling a surprise special session, Republican lawmakers who control the General Assembly introduced measures to end the governor’s control over election boards, to require State Senate approval of the new governor’s cabinet members and to strip his power to appoint University of North Carolina trustees.

Republicans also proposed to substantially cut the number of state employees who serve at the governor’s pleasure, giving Civil Service protections to hundreds of managers in state agencies who have executed the priorities of Gov. Pat McCrory, a Republican.

These extraordinary steps–taken in the wake of a democratic (note small “d”) election that produced a result displeasing to the state’s GOP–unquestionably violate democratic norms, and may well violate the North Carolina state constitution.

The election of a Democratic governor came despite sustained Republican efforts to suppress African-American votes–efforts so transparently and blatantly aimed at (disproportionately Democratic) black voters that a court described them as “surgical.” Several of those measures were struck down, but a number of others–moving polling places, shortening voting hours–had the intended effect.

Even in the face of massive vote suppression, the Democratic gubernatorial candidate somehow won.Hence the special session to strip the new Governor of authority–and the transformation of North Carolina government into an illegitimate putsch.

As the Times editorialized

This legislative power grab is the latest underhanded step by a state Republican Party desperate to stay in power in a state where demographic changes would normally benefit Democrats. Republicans in North Carolina, a presidential battleground state, have used aggressive redistricting and voting suppression measures that are among the most brazen in the nation to win elections. The courts have blocked some of these efforts, but Republicans have found workarounds, for instance, by limiting voting hours and sites.

Calling what is happening in North Carolina a “legislative power grab” is like calling cancer a “minor illness.” It is a shocking violation of democratic norms, and a frontal attack on the rule of law.

It is one more element in America’s current wholesale retreat from the principles that did make America great.

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Post-Final-Debate Reflections

Yesterday morning, as my husband and I were surveying the post-debate reactions, he made an offhand remark that struck me as really perceptive–even profound: “How is Trump refusing to honor the results of a democratic election any different from the Republicans in the Senate refusing to vet a Supreme Court nominee?”

He’s absolutely right. There is no difference, and all of the Republicans currently clutching their pearls over Trump’s forthright acknowledgment that he neither understands nor intends to follow the rules of constitutional government need to recognize that the orange monster they have nominated is simply an exaggerated and less self-aware version of what the GOP has become, with its accusations of “vote fraud” intended to suppress minority turnout, and its highly selective defenses of Constitutional principles. (Second Amendment good; Fourteenth not so much…)

In fact, a case could be made that Trump is less culpable than Mitch McConnell, since McConnell knows what the rules are, and deliberately chooses to ignore them when it suits his and his party’s purposes. Trump, on the other hand, is clearly ignorant of democratic norms and the most basic operations of government. (He continues to berate Hillary for not single-handedly effecting changes to U.S. law when she was in the Senate. I doubt whether he could even define federalism or checks and balances, let alone comprehend Senate procedures.)

We are at one of those periodic turning points in American political life; I don’t think it is an exaggeration to suggest that this election–coming on the heels of the slow-motion disintegration of a once-responsible political party– will serve as an indicator of the country’s future trajectory.

Either the electorate will administer a final coup de grace to the current iteration of the GOP, after which we will see a new or different political party emerge, as happened after the implosion of the Whigs, or the election will be close enough, and down-ticket Republicans successful enough, to maintain the toxic status quo. If the latter,  we will occupy the America of  Donald Trump and Mitch McConnell, where the rule of law is subservient to autocratic power, where (in Leona Helmsley’s famously dismissive phrase) taxes and laws are for “the little people,” and “We the People” becomes “me, myself and I.”

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Protecting Article XII

Well, Trump visited central Indiana yesterday, for a fundraiser and rally. It only increased the intense speculation about whether he would add Indiana’s embarrassing Governor to his ticket.

In many respects, they would be a political odd couple, but they do have one thing in common: neither of them appears to have much familiarity with, or regard for, the Constitution.

In his recent meeting with Congressional Republicans, for example, Trump emphasized his readiness to protect America’s Constitution–including Article Twelve.

Of course, there is no Article Twelve.

We probably shouldn’t be surprised; to the extent that this particular candidate has policies, a significant number of them are patently unconstitutional. Trump says he would authorize torture, round up and deport immigrants (no mention of due process, which is evidently not a phrase in the vocabulary of the man who brags that he has lots of “good words”), and he has proposed “passing a law” to eliminate the 14th Amendment’s birthright citizenship provision.

It’s mind-boggling that any citizen of the U.S. knows so little about America’s legal framework that he thinks passing a law can change constitutional mandates. (Even Pence and my least civically knowledgable students know better than that.) The fact that the Presidential nominee of a major political party is so ignorant of the most basic rules that constrain all elected officials–rules that he would be charged with defending and obeying if, God forbid, he should win–is stunning.

I know I am a broken record on the subject of civic literacy, but the ability of a man like Trump to garner 13 million votes in the primaries is at least partially attributable to the fact that too many Americans know little or nothing about the country’s legal framework or governing architecture.

The American Constitution was not handed down by God (although some on the far Right actually have made that claim). There are good reasons to consider amending parts of it, and serious political figures and scholars who advocate for such changes–but no credible source suggests that the Constitution is irrelevant and can simply be ignored.

What separates successful countries from theocracies, autocracies and banana republics is respect for the rule of law. The basic premise of the rule of law is that laws and regulations apply to everyone. It is the obligation of all citizens–including Presidents, Governors, and all other elected officials–to follow the same rules that apply to the rest of us.

Actually, it shouldn’t surprise us that Trump doesn’t understand that. He’s lived his entire life convinced that the rules don’t apply to him, and he’s made it quite clear that, if he should be elected, he won’t let pesky rules or constitutional provisions get in his way.

That attitude and ignorance explains why citizens who are civically literate find the prospect of a Trump Presidency terrifying.

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Rules for Thee but Not for Me….

The two-year-olds who currently dominate America’s political landscape may be riding different hobby-horses, but the common thread that runs through their various tantrums is an assault on the rule of law.

The essential difference between regimes based upon raw power and those based on the rule of law is that in the latter, the same rules apply to everyone. No one, we like to say, is “above the law.” In democratic rule-of-law regimes, partisans may contend bitterly over the wisdom or efficacy of any particular rule, but once it is enacted, like it or not, they abide by the law unless and until it is repealed or overruled.

Adherence to the rule of law is an essential condition of government legitimacy–a point that is seemingly lost on the various county clerks refusing to issue marriage licenses to same-sex couples, or police officers who believe their commands are the law, to use just a couple of contemporary examples.

Closer to home,  Indiana Gov. Mike Pence says he will refuse to implement the U.S. Environmental Protection Agency’s Clean Power Plan. In a letter to President Obama, he wrote that he would not abide by the plan “if the final rule has not demonstrably and significantly improved.”

“Improved” evidently meaning “acceptable to Mike Pence.”

If Pence and others who object to the EPA’s rule truly believe it represents a wrongful exercise of the agency’s authority, they can litigate that issue. If they win, good for them. If they lose, they have to abide by the law.

In a country with the rule of law, none of us gets to decide for ourselves which laws we will obey.

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Family Fights

We are a weird family. I should just admit it.

You want examples?

Several years ago, my eldest granddaughter–then 13– interrupted a lively dinner discussion by our extended family, saying “Stop it! Just stop it! All this family talks about is politics and I’m sick of it!” I apologized and said we’d talk about anything she wanted. What did she want to discuss? “School uniforms. I don’t think we should have to wear uniforms.”

Not long after 9-11, when our daughter was still on IPS’ School Board, she and my lawyer son disagreed about encouraging schoolchildren to recite the Pledge. He cited Barnette v. Board of School Commissioners of West Virginia; her Christmas gift to him that year was The Story of Our Flag.

And so it goes–at least in our family.

Most recently, my two younger sons have been arguing about Edward Snowden. On Facebook, my (very liberal and idealistic) middle son approvingly posted the New York Times editorial arguing that Snowden should get clemency; his brother (the lawyer) shot back with Fred Kaplan’s article for Salon, Why Snowden Won’t (and Shouldn’t) Get Clemency.  That led to a spirited exchange, to put it mildly.

Each one called and tried to get me to weigh in on his side.

In other families, I am told, children call their mothers (when they do) to ask for money, or to report on life events, or even to ask advice.  Mine call to talk politics and argue policy.

For what it’s worth, I agree with my lawyer son on this one. As Kaplan–like me, a foe of NSA domestic spying– notes in his article, had Snowden only disclosed information about domestic surveillance, leniency might be appropriate. But he did much more than that. He disclosed information having nothing to do with domestic spying, or even spying on our allies. He disclosed information about intelligence gathering practices that are not “illegal, immoral or improper”–information useful to the Taliban and Iran, among others.

Kaplan quotes Snowden telling the South China Morning Post that he took his job with the express intention of gaining access to NSA information–rebutting the assumption that  what he learned on the job so distressed him that he decided to broadcast what he’d found. He only stayed on the job for three months– just long enough to get what he’d come for. (He also lied to some 25 co-workers, telling them he needed their logons and passwords as part of his system administrator duties. Predictably, those co-workers were subsequently fired.)

There were also his glowing remarks about the “commitment to human rights” shown by Russia, Venezuela, Bolivia and Ecuador, his praise of Hong Kong’s devotion to freedom of speech, and his expressed intent to share the pilfered documents with “every country where the NSA had operated.”

Someone who really wanted to shine a light on government misconduct–to engage in the time-honored tactic of civil disobedience–would not have taken refuge in countries whose interests are inimical to ours. He would have stayed in the U.S., made his case, and accepted the consequences of his actions.

Had Snowden limited his disclosures to the NSA’s clearly unlawful domestic activities, had he remained in the U.S. to argue that his actions were in service of the Constitution and Rule of Law, he would be a whistleblower entitled to our consideration.

Bradley Manning was a whistleblower. Snowden is not, and the fact that his disclosures will end up doing some collateral good really doesn’t change that.

My lawyer son’s analogy is apt: if someone goes on a shooting spree and kills two innocent people and one murderous son-of-a-bitch, the fact that he rid the town of the SOB doesn’t excuse the murder of the other two.

I hate taking sides when my kids have an argument, but sometimes, it’s unavoidable. At least they aren’t arguing about who Mom loves best…

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