by Michael Liss
It is more proper that law should govern than any one of the citizens. —Aristotle, Politics
Aristotle was an optimist. Try to visualize an old Greek guy in a himation as a talking head on one of the Sunday shows. He’s never getting an invite to the White House—and it’s not just because of the clothes. Limits on an American President? This American President?
It is grim out there if you are a Democrat. The House, gone; Senate, gone; White House, so far away the distance is measured in light years. SCOTUS, nauseatingly gone. Day after day, Trump, with the cunning of an outlaw biker President, uses his power to taunt, punish and utterly dominate anyone who had or has the temerity to oppose him. Based on the number of prominent people and institutions that have knelt before him, he’s darn good at it. He’s also darn good at speaking to his supporters, and particularly skilled at keeping his fellow Republicans in line. Trump speaks fluent Trump, and Republicans, increasingly, are learning repeatable, debate-ready whole paragraphs of Trumpiness to be used in almost any circumstance. It’s a “Newspeak” modernized from 1984, and it works. People understand it. They react to it viscerally.
How about Democrats? With some notable exceptions, they mostly speak Esperanto. Excellent at cocktail parties with your photos of the Prado (“The Goyas were amazing!”), but not all that useful for everyday conversation.
Full stop. I am not going on an extended “TDS” rant, or its post-November 2024 variant of perpetual Democratic self-flagellation. Newspeak is also a definite no. Let’s talk about power in our system, the extent and implications of it, how it’s expressed and constrained, and the political application of it. In short, let’s channel our inner Aristotle and survey the role of the Rule of Law in contemporary politics.
Perhaps it is best to state the obvious at the beginning: What role? The Rule of Law is a losing argument in recent elections—and it is a losing argument to make to politicians. Maybe that will change, maybe it’s a temporary phenomenon of the Trump Era, maybe it just lacks a compelling spokesperson, but many voters don’t care—and in fact, some cheer its failure.
What is it they are rejecting? What is the Rule of Law?
We “Esperanto-ists” will happily tell you it has something to do with the bedrock principles on which this country was founded, embodied in the Constitution, grounded in fairness, constraining the abuse of power, respecting and following the rules, and, to quote from the United States Courts website:
Rule of law is a principle under which all persons, institutions, and entities are accountable to laws that are:
- Publicly promulgated.
- Equally enforced.
- Independently adjudicated.
- And consistent with international human rights principles.
Wow, that’s great. Public promulgation, equal enforcement, independent adjudication—we are going to need lawyers. The American Bar Association, which has as a banner headline: “The American Bar Association supports the rule of law.” What do clever, well-trained, highly educated attorneys think about the rule of law?
[It] means holding governments, including our own, accountable under law. We stand for a legal process that is orderly and fair. We have consistently urged the administrations of both parties to adhere to the rule of law. We stand in that familiar place again today. And we do not stand alone. Our courts stand for the rule of law as well.
Wait, there’s a problem. Click on the ABA letter and you will see that it calls out several Trump Administration initiatives as not being in accordance with the Rule of Law. No, that’s not going to be authoritative. How about the stalwart of the legal Right, the Federalist Society?
I had to laugh. From the fedsoc.org website: “Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters.” Uh huh, THAT Federalist Society. Feel free to click here and indulge yourself in the Society’s eschewing of the taking of positions. Impressively apolitical.
So, if you are a Democrat or an Independent or the person who wrote that ABA letter and you think that what Mr. Trump is doing is not following the Rule of Law, tell me just exactly what the Rule of Law is? The United States Courts website refers you to Hamilton’s Federalist #78, explaining that, in it, Hamilton noted that “the federal courts ‘were designed to be an intermediate body between the people and their legislature’ in order to ensure that the people’s representatives acted only within the authority given to Congress under the Constitution.”
Ah, OK, we are back to the courts. That website goes on:
The U.S. Constitution is the nation’s fundamental law. It codifies the core values of the people. Courts have the responsibility to interpret the Constitution’s meaning, as well as the meaning of any laws passed by Congress…and if any law passed by Congress conflicts with the Constitution, ‘the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.’
The federal courts? Our federal courts? The judges who infuriate Trump, or the ones who send him celebratory cases of Diet Coke after every ruling along with a headshot in case there’s ever a SCOTUS vacancy?
Actually, that’s not at all fair. The vast majority of federal judges have a real commitment to adjudicate fairly and impartially, and most of their cases have nothing to do with politics. They work largely anonymously, supporting the rule of law by arriving at fair and grounded decisions. It’s when they step out into the political arena, whether it is about an election, the power of a branch of government, or the actions of an individual or institution, that they invariably expose themselves. Some do with relish, others with modesty, but all know that, in a hyper-partisan era, their actions will be seen as hyper-partisan. So, let me ask the question again. What is the Rule of Law?
Well, I guess we have to go to the apolitical, devoted-to-justice team of legal superheroes—the Supreme Court. From its website:
The unique position of the Supreme Court stems, in large part, from the deep commitment of the American people to the Rule of Law and to constitutional government.
I feel seen. Deep commitment. SCOTUS works for me, for you, for all of us. SCOTUS takes that responsibility on its shoulders and delivers to us…the Rule of Law.
Deep breath, please, because most of us, no matter where we fall on the ideological spectrum, happen to define “Rule of Law” as “what the law would say if we were making the rules.” And most of us, again, no matter where we fall on the ideological spectrum, think SCOTUS does too. We will take the win, we will cast it as victory for…the Rule of Law, but what we really are doing is just keeping score. From SCOTUS on down, most of the time we are creating our own cycle of distrust and making the true vision of the Rule of Law less attainable.
Here’s a real problem for Democrats—the one mentioned at the top: politics and losing at it. They lost the House, and now they have to watch Mike Johnson cede legislative authority to Trump and Musk—and no, that is not the Founders’ intent, no matter how you spin it. They lost the Senate and three of their most moderate and effective Senators, Tester, Brown, and Manchin, leaving Chuck Schumer with only procedural tools that he can use sparingly. And, of course, they lost the White House, through a series of inexplicable unforced errors that don’t need rehashing.
When you are out of power, you have only such influence as the rules allow for losers. An ugly truth: a lot of Trump’s outrages are within his authority. They may be mean, stupid, more than a little racist, petty, greedy, abusive, and literally put millions at risk. They may permanently alter our relationships with our long-term allies, and, in doing so, be destructive to our longer-term national interests (see Bill Murray’s excellent piece). They are likely to have a cost in (other people’s) blood and (other people’s) treasure in astronomical amounts. They will, to his absolute pleasure, strike at the viability of many of the finest academic and research institutions in the country. They will cost hundreds of thousands of people their jobs, upend the economic well-being of their families, and completely undermine areas like research in science and public health. Those are Trump’s policies, and while some will be slowed on procedural grounds, it’s a safe bet that a good bit of his agenda will stick.
Why? Because policy choices are often ultimately beyond the reach of federal courts, no matter how ill-advised.
Of course, being given the power to do something does not mean one was given the wisdom to exercise it modestly. Trump is neither wise nor modest, but he is in charge, and, ultimately, he’s going to win an extremely high percentage of his cases before SCOTUS. Some of those will be because he legitimately has the authority. More may come on a series of close calls where the conservative cohort is eager to advance the Unitary Executive Theory, or simply likes what Trump has done, regardless of the Rule of Law. But even if he loses, even if SCOTUS occasionally checks him, he’ll still have won, because he’s acting entirely on his own motion, with no constraints, and, as Mark Harvey pointed out, once the 40-ton excavator is done, things don’t get put back together so easily. Americans may not quite understand the tortured, intellectually dishonest legal reasoning that goes into some of those Trump wins, but it will confirm in their eyes a fatal defect in our system: the “Rule of Law “ will be seen as a malleable, self-referential, and fuzzy concept, unworthy of attention at election time, or, for that matter, any time.
Let’s place a second bet. Smart Democrats (yes, there are some, including both Jeffries and the currently maligned Schumer) already know this. Things will never again be the way they were. Political morality’s DNA has permanently mutated. You must win as a matter of self-preservation. If, after you do, you want to engage in moral “nation-building” to restore what’s been lost, that will be more than just appropriate, it will be inspiring. But you have to win first.
Can Democrats win? It’s going to take a tremendous amount of work, infrastructure, money, smartly chosen candidates (Schumer, when he was Chair of the Democratic Senatorial Campaign Committee from 2005 to 2009, helped recruit 14 winners), and far more of a focus on local issues. Go to places Trump has devastated and show the flag, even those that are deep Red. Judicious application of Democratic talent, and smart, appealing surrogates from across the Democratic spectrum to make the case. Deft media (social and traditonal) exposure to the real-world implications of Trump’s destructiveness. Less infighting—skip the stupid litmus tests. Republicans, after all, are down to one monogamous relationship.
249 years of imperfect, but often majestic history is at risk. We all know it. Democrats must try fighting for it and cannot cede it out of passivity.
The time to start is right now, today, and every day that follows. Go back to the voters, work for their support and earn it. One stylistic note: no more speaking Esperanto. Take a lesson there from Bernie and AOC, who are attracting crowds with not just a fighting spirit, but also with plain speaking. Their message may be more liberal than the larger public is willing to support—but Democrats have other, more moderate voices. Use them. Just remember, we aren’t smarter, more educated, more elite, more moral, more cultured, etc. Let’s stop talking that way, and acting that way.
It’s not going to be easy, and there will be defeats, maybe many of them. It’s best to remind yourself, from time to time, that “[it] is more proper that law should govern than any one of the citizens.”
That should be a motto for our times.
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