RULE OF LAW ON THE ROCKS
AMERICA ON TRIAL
America seems to have passed into a rule of law twilight zone, setting up an almost daily drama pitting the forces of good against the forces of evil. What is so alarming about the present state of this contest is that defining “good” and “evil” is up for grabs at the outset. The absence of meaningful definitional consensus dooms the prospects for constructive resolution of the nation’s seemingly intractable problems. As this malady spreads, a nation of predictable laws devolves into a nation of unpredictable chaos.
This is no small point. It is the rule of law and its attendant consent of the governed to be bound by the rule of law that provides the foundation for effective governance. At last check, humans have not come up with a better organizational plan than government. Good government requires institutions and infrastructure that function well and some measure of public acceptance of outcomes determined within a pre-determined procedural framework. That procedural framework is the foundation for the rule of law in any well-governed society.
As always, America is confronted with serious challenges at home and abroad. Yet, breathless breaking news routinely unfolds in a definitional vacuum. Information is provided before an acceptable vocabulary has been developed. As an ongoing example, most Republican Party voters and a pandering party leadership still act as if Trump was the legitimate victor in a presidential election decided three years ago. An audience full of sycophants at the initial Republican Party presidential debate booed the notion of public accountability for wrongdoing, while the candidates on stage declared fealty to the lucky guy with ninety-one felony charges to his name.
So, any effort to promote understanding of ongoing developments in Trump’s political, social, legal, and financial saga is doomed to failure because a significant portion of the population seems to think that Trump is currently the legitimate President of the United States under siege from a venal pretender. In this milieu, the resulting political and social morass that is unfolding across the land will have to be addressed without any expectation that America’s self-touted governmental institutions are prepared to define and enforce a rule of law grounded in a moral and ethical consensus. There simply is no consensus. This void critically undermines institutional integrity and societal cohesion.
Another current millstone around America’s collective neck is the US Supreme Court, an historically flawed but previously respected institution that has reduced itself to a predictable cesspool of White Christian nationalist orthodoxy. Then, just to make sure that the underprivileged and marginalized fully get the message, there is a palpable overlay of that orthodoxy with old school privilege-begets-privilege rationale. To say the least, the Supreme Court majority rampage of recent years seems purposefully designed to provide legal cover for the worst that America can be.
This is morally dispiriting and makes a mockery of a rule of law that requires aspirational public acceptance to survive. Added to the Court’s decay is an ethics ethos that looks a lot like that which abounds in the private sector and which has no place in the public sector. Privilege has been allowed to thrive as a cancer within. The Supreme Court today operates more like a runaway corporate board of directors than the highest court in the land empowered as one of three separate branches of the US Government. So there won’t be much help there.
Yet, the Supreme Court is but one failing branch of government. Congressional dysfunction and the poisonous role of corporate, religious, and cultural influence pedaling in the halls of Congress has only added to the denigrating impact of some of the Court’s recent rulings and the Court’s ethical void. You end up with two branches of the US government now hopelessly compromised and openly operating outside the confines of a rule of law that should be at the core of their mission, even further eroding the realization of a national moral and ethical consensus.
The current disconnect between justice fortified by a rule of law and the moral and ethical consensus necessary to give it vitality has profoundly contributed to wildly divergent “moral and ethical” perspectives. This is well illustrated in the national response to the gun carnage that is all around us every day. It makes a mockery of common sense that in 1791, America’s “Founding Fathers” would have enshrined in the Constitution an amendment to the original document that foreshadowed the armaments of today, the greed and avarice of the arms merchants, and the utter insanity of the notion that the safety and security of the nation would best be protected by an obscene stockpile of firearms in civilian hands.
But here we are, stuck with an institutional void incapable of defining and driving a national moral and ethical consensus to end the carnage, never mind the constitutionally-enshrined right to life, liberty and the pursuit of happiness.* There is no Supreme Court or judicial system to pull us out of it, and no Congress to pull us out of it. And even if there were an executive branch with a moral and ethical compass (and there may be), the institutional dysfunction of the judicial and legislative branches is routinely undermining the executive capacity of the nation. Add to this the systemic absence of transparent and fair accountability for almost anything, and it should be no surprise that societal discord will fill the void.
Using gun carnage fueled by some morally-bankrupt interpretation of ancient text as an illustration requires little imagination and poses well the consequences of the nation’s institutional failure to respond. Now fast forward for a moment. A nation paralyzed by the Second Amendment is about to be further paralyzed by the First Amendment and its “free speech” guarantees.
Again, the fundamental rule of law will be the loser. Already, the cherished, but ill-defined, right to free speech is being bastardized by those seeking to ban for others what they wish to exploit for themselves. It is a part of the legal lexicon that you can’t shout “fire” in a crowded theater and then duck under the cover of First Amendment free speech guarantees to avoid responsibility for the resulting damage. However, in today’s America, the retrograde right is fostering the notion that you can publicly shout venal lies to move a crowd to violence while under cover of that ever-popular First Amendment free speech protection.
One bastardized amendment to the US Constitution is already killing tens of thousands of our citizens a year, so just image the harm that the bastardization of another key amendment could do. And then line up the Fourteenth Amendment and its panoply of due process guarantees, and it isn’t hard to see a way forward to an America in which fundamental legal principles are turned on their heads to ensure a dark national future. We never seem to learn.
I would like to end this with some charming homely of hope, but I will leave that to the flag wavers. The rest of us must accept the challenge of defining for the future a moral and ethical foundation for the present. Without this foundation, there can be no rule of law. Without the rule of law, there can be no nation worth defending.
* See Hard Left Turn, Justice for Sale, 7/9/22 - https://www.hard-left-turn.com/single-post/justice-for-sale . This previous posting more fully explores the institutional collapse of the US Supreme Court as it is currently constituted.