One Perspective: Commentary: Doomed to rule by law

Stephen B. Young, The Daily Record Newswire

 Last week’s U.S. Supreme Court’s decisions pushed me over the brink into considerable despair.

 Not for the outcomes reached by the justices — they were more or less within the scope of reason and prudence — but for the system of law they embodied.

 We Americans no longer are protected by the rule of law. We have evolved our jurisprudence during our Culture War of the last 45 years into something less, something that promotes national decline and divisiveness, systematically augmenting pettiness and self-seeking.

The “rule of law” is an old standard of republican governance where public office is held to be a public trust, where officials and citizens submit to objective, neutral, rules through open procedures of access and reasoned debate, where the “law” constrains democratic majorities, presidents, and judges.

At the end of the Roman Republic, Cicero opposed Julius Caesar and then Antony and Octavian to defend the rule of law. He lost, and his republic died. The English Civil War was fought to impose the rule of law on the monarchy through Parliament. John Locke’s Second Treatise on public office as a public trust was grounded on the advantages for a free society of living under the rule of law.  Following Locke, our Declaration of Independence and Constitution similarly grounded our Republic on this foundation, defended by separation of powers, checks and balances, and a bill of rights.

 The ideal of the rule of law was at stake during our Civil War and was defended at the battle of Gettysburg 150 years ago this week. Lincoln’s address of thanks to those who had borne the battle and to those who would carry on the endless struggle for freedom and democracy was, in spirit, all about the rule of law.

 But what is commonly confused with the rule of law is rule by law.

“Rule by law” is the jurisprudence whereby ruling autocrats or elites use rules and regulations to impose compliance and conformity on their subjects. It was the kind of lawfulness embodied in Hitler’s evil Nuremberg laws, designed to eliminate the Jews as a people; it was the lawfulness of Stalin’s constitution with its long list of “rights” to be enjoyed by the peoples of the Soviet Union; it is the lawfulness of a Castro, a Mubarak, a Gaddafi, an Assad, and of populist autocrats like Napoleon or Hugo Chavez.

On our soil, chattel slavery was created and maintained through rule by law. Jim Crow segregation was spawned and supported on the same grounds. The civil rights movement and Supreme Court opinions such as Brown v. Board of Education replaced white rule by law with the American ideal of the rule of law under the federal constitution.

Because of our Culture War, we Americans have moved away from the rule of law toward rule by law, thereby endangering our Republican form of government.

To put my case, I give you three developments: federal legislation, Supreme Court decision-making, and legal education.

 In Congress a rationalistic, bureaucratic scholasticism has given us Kafka-esque results in our legal system. Both the Affordable Care Act and the Dodd-Frank reforms each comprised over 2,000 pages of written text. I am told that many senators and representatives who voted for these laws didn’t take time to read them. They just took the word of their leadership that everything in the texts was OK.

Even if they had read them, they most likely would have been stupefied and left in ignorance by the technicalities and the complexity of definitions and inter-relationships of one minor provision with another.
They could not have made a knowledgeable decision on the merits of the proposed legislation.

Our Internal Revenue Code is in the same state. Who understands it in whole?

This is not a system of law; this is a tyranny of lawyers and wonks.

Law, under the guiding philosophy of the rule of law, is to be simple, clear, accessible to the people and to those who must implement it. The right kind of law should leave a minimum of discretion to the officials who will enforce the statutes, so that their decisions and actions can be subjected to review and correction for mistaken, arbitrary, or irrational interpretations.

This excessive micro-managing imposed by recent federal legislation has been made possible by a shift in decision-making from members of the House and Senate to professional bureaucrats who work on the committees that draft the statutes.  In the “good old days,” senators and representatives had small staffs, and committee work consisted of face-to-face meetings of members who wrangled over proposed laws. Those elected by the people had to write down what they wanted and had to put what they meant in comprehensible writing.

That reality is gone. Minnesota U.S. Rep. Rick Nolan of our Eighth Congressional district is now back in Congress after an absence of many years. He told me recently that members of the House now do little work; they mostly fundraise and pontificate.  Committees no longer seriously work on legislation. The leadership has staffers draw up bills, and committee members are told to vote on what is presented to them without asking too many questions. Members have little expertise in what they agree to and little opportunity to gain any expertise under such a system.

Those with the obligation to vote on our behalf rely on experts to tell them what to do.  And here the door has been opened to massive intrusion into our legislative process by lobbyists and special interests who helpfully provide members with proposed language for statutes. Who is doing the thinking for the public good here? Who is actually writing our laws?

This is not the rule of law, but a system of management by lawyers and bureaucrats.

In the U.S. Supreme Court, a similar process of staff professionalism has turned judicial opinions into trivialized and excessively complicated legal briefs that only legal specialists can appreciate.  Justices have too many smart young law clerks who research arcane points of law and hunt down obscure precedents in order to buttress some technical point that carries polemical heft.

Politics triumphant

Thus, last week’s decisions involving race (voting and affirmative action) and sexual practices (gay marriage) – big social issues indeed – turned on small points of procedure or on the interstices of statutory interpretation. This is not ruling on legal principles, but deciding by technicalities as bureaucratic managers do so well in their intellectually cramped pigeon-holes of minor responsibility.

This kind of judicial nit-picking is a kind of politics as well, not a jurisprudence of the law. We see this in all the 5/4 decisions where a small point important to only one justice makes for the majority and sets the law of the land.

The broader politicizing of our courts and judges has become rampant, which could lead to the end of any hope of enjoying the rule of law. Every article I read last week on the Supreme Court decisions said something about the conservative/liberal division of the court and presented the decision at hand, not in terms of law, but in terms of a polarized culture. Have we really given up on the law?

Now, the form of argument used by the justices has played to this petty politicization. Justices have argued more and more in terms of equity and less in terms of law.

For centuries at the Common Law in England and America, there were two court systems: one for cases brought to vindicate a rule of law, and the other to challenge the application of rules through an appeal to judges for fairness, or equity.  In the United States the two systems were merged in 1938, so judges and lawyers these days rarely separate out the two different kinds of approaches to judicial decision-making.

But application of equity doesn’t turn on rules of law. Equity is about the facts and a sense of fairness and who is or is not being overbearing in the use of their legal rights. Equity calls for more personal willfulness and personal reflection on the part of judges in coming up with a solution more fair than what the rule of law requires.

I once put this point to Justice Harry Blackmun, and he was taken aback a bit, as he had never thought of taking that bifurcated view of how to make decisions.

The Supreme Court decisions of last week were taken more in terms of equity – how to split the differences  between the parties – than in terms of announcing a rule of law. This is more akin to legislating, even to politics, than to judging right from wrong under the rule of law.

Legal education
 Finally, legal education gave up on fealty to the rule of law many decades ago. Today’s law professors, lawyers and judges have not been seriously or deeply trained in applying it. The left in our Culture War advocated on law faculties that there is no “law” in the traditional sense – just politics and the imposition of one form of discourse on other people through power.

Legal reasoning has thus been used to undermine law and replace it with self-serving advocacy seeking equity for special interests. The best example of this inversion was Justice Sotomayor’s reference to the superiority in reaching just outcomes of a “wise Latina judge.” This is the stand of equity: Beauty is in the eye of the beholder.  So, what might be good law for a “wise Latina” is not necessarily law for a “wise Latino” or for an African American, or a Chinese, or especially for a white male. This is law only as personal discourse – a form of tyranny where personal power comes first and imposes its will on others through rule by law”.

My depressing conclusion about our current system of rule by law:  The children and grandchildren of those who sow dissension in their own house shall inherit the wind.