The US Presidential election is nearly here, and as my last bunch of posts have been about politics, I thought it was something that I ought to cover. Election time isn’t something I enjoy, with months of mudslinging, name-calling, and so on. A lack of charity, understanding, kindness, respect (and I reserve the right to be a bit of a hypocrite during this conversation). Opinions on American politics from those in other countries who perhaps aren’t as informed as they perhaps ought to be to be opining like that. I used to be like that, and since becoming more informed, I’ve tended to keep my mouth shut.
As much as I generally dislike Facebook politics, there is someone whose political posts I actually enjoy reading. Very well-informed, not inflammatory. I even asked to be in the group of his friends that gets to see all his political posts. So I have invited my friend James to have a conversation with me about American politics, and particularly issues around the 2016 Presidential election. (For the rest of the post, I’m in italics, James is in the regular font.)
TLF: So, James, please fill us in on your political background. You’ve been quite active in your party? A lot of my English friends have expressed their distaste for the current Republican nominee. But I think many of them would be dubious about a Republican in a normal year. What is it about the Republicans that had you committed to them for so long?
JH: Well, to be glib, I’ve been committed to the Republicans because the alternative is the Democrats! Welcome to the era of Negative Partisanship!
I am a strong believer in the rule of law rather than the rule of men. In the United States, that fundamentally means that I believe the written Constitution must be obeyed in order for the government to maintain legitimacy. (The U.K., which has no written constitution, does not grapple with this question in quite the same way we do.) I know that it is often very difficult to submit to the rule of law, especially when you wield political power. When you really, really, really think there ought to be a law about something, it is profoundly tempting to reinterpret the Constitution to allow it (or mandate it). This is human nature.
For example, during World War II, the United States famously interned thousands of Japanese-Americans at internment camps. While the president asserted that he was authorized to do this by unwritten, vaguely implied emergency powers in the Constitution, it quite clearly trampled on any number of actual rights that were actually written in the Constitution — the right to procedural due process, the right to a trial, the right against searches and seizure, their Fifteenth Amendment rights, their Thirteenth Amendment rights, and probably a dozen others. This was awful.
What’s even more awful is that, in Korematsu v. United States (1944), the Supreme Court, driven by fear and misguided patriotism, ignored their responsibility to the Constitution and affirmed the gutting of Japanese rights. In order to do this, they had to engage in a great deal of insane troll logic, because their conclusion ran absolutely against the clear text of the Constitution to which they had sworn an oath. (Much of that insane troll logic, incidentally, continues to influence our judicial system today.) This is a perfect example of the Rule of Men overtaking the Rule of Law. I understand why they did it: men are weak and often fail to live up to their ideals. But I abhor what they did, and one of my most important priorities is defending the Constitution and our political institutions against further subversions of the rule of law.
Korematsu is an especially ugly example, but there are plenty of other cases where lawmakers or judges ignored governing law in order to implement their own policy preferences. Sometimes those preferences are good, sometimes they’re bad. Sometimes the issue is important, sometimes not. Yet it is always wrong to twist the Constitution to fit your preferences.
In Griswold v. Connecticut (1965), the Supreme Court struck down an incredibly silly state law against contraceptives. I agree with the policy outcome — laws against contraception are dumb — but the state clearly had every right under the Constitution to have that dumb law. It was for the people of Connecticut to change, not nine unelected judges who imagine themselves kings. That’s what the Constitution prescribes. (If you want judges to decide these questions rather than the People, then pass an amendment. I may even support you.) My favorite Supreme Court opinion of all time is Justice Potter Stewart’s dissent in that case. He spends a paragraph insulting the law, then says, “But the Constitution doesn’t prevent it. Sorry, guys.” (It’s a page long. Look it up.) [here it is] The policy outcome was great: the anti-contraceptive law was eliminated and that was good. The importance was low — nobody got sent to an internment camp over it. But it was a decision of men, not of the law. The same fundamental logic that drove Griswold — silly old lovable Griswold — also drove all the most nightmarish Supreme Court decisions of all time. Korematsu. Dred Scott. Roe v. Wade. Lochner. Plessy. And it’s not just the judicial branch: it was the President who interned those Japanese. It was the President who ordered the unconstitutional evacuation of Indian lands that led to the Trail of Tears. It was Congress that passed the abhorrent Alien and Sedition Acts.
Once you abandon the law, you abandon all the protections the law provides against the darkness of human nature. It infects every level. You HAVE to stick to the law. The written-down, honest-to-God, this-is-the-compact-we-all-agreed-to law.
There’s a beautiful passage in Robert Bolt’s *A Man For All Seasons* (about St. Thomas More) that has gradually become the bedrock of my whole approach to politics. I cannot resist reprinting it in full:
Alice More: Arrest him!
Sir Thomas More: Why, what has he done?
Margaret More: He’s bad!
More: There is no law against that.
Will Roper: There is! God’s law!
More: Then God can arrest him.
Alice: While you talk, he’s gone!
More: And go he should, if he was the Devil himself, until he broke the law!
Roper: So now you’d give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I’d cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast– man’s laws, not God’s– and if you cut them down—and you’re just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law for my own safety’s sake!
Okay, so what’s any of this have to do with the Republicans?
The Republican Party is, let’s face it, terrible at following the Constitution. Like all men, ruled by passions, they find all sorts of excuses to ignore it when, say, a Muslim wants to build a mosque. And you could list ways the GOP and its voters subvert the Constitution from now until next Wednesday without breaking a sweat. They talk a good game about the rule of law and originalism and textualism and the Constitution and all that, but then they’re all, “No, it’s actually totes okay to torture these prisoners in violation of statute because, see, it’s not really torture.” Full disclosure: I’m no better than the average human; I’ve done this. Hell, Justice Scalia did this every time he had a drug case. The whole edifice of his towering intellectual defense of rule-of-law interpretations of the Constitution went out the window in Employment Division v. Smith and easily half a dozen others.
However, at least they hold the rule of law up as an ideal, and occasionally achieve it. The Democrats went to war with the very *idea* of the rule of law decades ago, and never let up.
TLF: I remember reading about the Japanese-American internment in George Takei’s autobiography.
After thinking about that Rule Of Law thing for a few days, I believe it was an experience of this that propelled me in the libertarian/anarchist direction. I think it was even part of what had earlier made me not like America’s two main parties, before I really had a chance to like either of them. all being well, we’ll get into those on another day.
JH: I want to hear both stories.
Next post: James talks more about rule of law, America’s two main parties, and bring things up to current events. Please check out James’s blog, I’d suggest starting just after the primaries and working forward to the most recent entry, some of that will be spoilers for the coming posts, so… click your conscience!