People I know, conservatives mostly, but also the odd independent, often ask me (and I’m paraphrasing here in the interest of civility) “I know Bush has screwed things up royally, but why should I vote for Democrats instead of Republicans for Congress?” Now there are a myriad of responses to that question, but I’d like to focus on just one for the moment. It’s one of my standard rejoinders to these types of queries, and because I have a fondness for the Socratic method, I phrase it in the form of another question. I simply say this:
Which do you prefer: The Rule of Law or the Rule of Bush?
At this point I usually receive a blank stare in return, followed, after a brief pause as my interrogator gathers his or her wits, by a third question: “What the hell are you talking about?”
So I tell them …
(cont.)
… what I mean.
Rule of Law Defined
First, I tell them that the “Rule of Law” is the traditional Western approach to democratic government based upon the fundamental assertion that we must have “[a] government of laws, and not of men.” Not only is this philosophy of government widespread throughout all Western style democracies (more or less), but it its tenets are enshrined in our own Constitution.
The Rule of Law can be defined by the following principles:
1. That the law is superior to the exercise of arbitrary power by any person or institution (i.e., the Supremacy of law).
2. That no person is above the law, for we are all equal in its sight (i.e., Equality before the Law)
3. That judges, whose task it is to interpret the law as it applies to each individual case or dispute, must make their decisions independently of those who exercise the legislative and/or executive powers of government, and that all such judicial interpretations of the law shall be binding on the legislative and executive authorities (i.e., an Independent Judiciary)
The purpose of the rule of law is to limit government, and specifically to limit the exercise of discretion by those who hold power in government:
The keystone of the government of laws is legal control over human discretion. The existence of widespread discretion is therefore directly inimical to the existence of a liberal order. Discretions need to be exercised on the basis of justice or some real justification or even of mere reason. An unfettered discretion is an opportunity for temptation and for arbitrary, insolent, discriminatory, intrusive, socially engineering and corrupt, government. Where there are fixed laws there is (more or less) certainty, there is certainly impartiality (equality before the law) and consistency. A person may stand upon his legal rights without fear or favour. Discretion, on the other hand, undermines justice.
Discretion may exist in the context of executive, judicial and legislative branches of the modern state.
Executive discretion is the most dangerous of all forms of discretion. This is because its impact upon the citizen is immediate and uncertain. Legislative discretion is uncertain but not immediate. Judicial discretion is immediate but not uncertain. Executive discretion, in suffering from the effect of immediacy additional to uncertainty, is open to the greatest possible abuse. The administrator has immediate unfettered power over the individual who stands at his mercy. The opportunities for arbitrary, insolent, discriminatory, intrusive and corrupt activity as well as totalitarian social engineering, are maximised at this point.
Or as John Adams put it in his typically pithy and acerbic fashion:
There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty.
The rule of law is designed, then, to prevent anyone from exercising arbitrary power to deny justice to others. And by “anyone”, I do not mean single individuals, alone, but also any group of men, whether organized and recognized under law (e.g., business corporations or governmental agencies), or whether a hastily assembled mob out for vengeance. Again, Mr. John Adams:
The law…will not bend to the uncertain wishes, imaginations and wanton tempers of men…On the one hand it is inexorable to the cries and lamentations of the prisoners; on the other it is deaf, deaf as an adder, to the clamors of the populace.
Okay, my conservative friends generally nod to me at this point. We get it. It’s basic civics.
Legislatures pass the laws. Executives enforce them. Judges decide when someone has broken the law, and what the law means. Each one is check upon the power of the others. Constitution, individual rights, freedoms, blah, blah, blah. But what’s that got to do with voting for Democrats? Don’t Republicans support the rule of law just as much as the Dems do?
Well, I say, not exactly.
The Rule of Bush Defined
You see, I reply, ever since Bush took office and the Republicans assumed control over both houses of Congress, a new theory of government has emerged. Or perhaps I should say an old theory all gussied up in a new dress and lots of expensive make-up to make it seem more fresh and less unappealing to the undiscerning eye. Some people refer to this theory as the Unitary Executive theory of government, but I don’t really think that label does it justice. So I just call it, for simplicity’s sake, The Rule Of Bush.
Basically, this theory holds that under certain circumstances (not clearly defined, but don’t let that bother you just now) the President of the united States, because of his unique position in our Constitutional structure, has powers which exceed those which Congress has specifically granted to him, as well as those which are expressly set forth in the Constitution itself. But rather than expound upon my understanding of what that may mean, let’s read what one of the most avid proponents of the Rule of Bush has to say about it, John Yoo, former Deputy Assistant Attorney General, Office of Legal Counsel, and now Professor of Law at the University of California at Berkeley School of Law:
[T]he constitutional structure requires that any ambiguities in the allocation of a power that is executive in nature – such as the power to conduct military hostilities – must be resolved in favor of the executive branch. Article II, section 1 provides that “[t]he executive Power shall be vested in a President of the United States.” U.S. Const. art. II, § 1. By contrast, Article I’s Vesting Clause gives Congress only the powers “herein granted.” Id. art. I, § 1. This difference in language indicates that Congress’s legislative powers are limited to the list enumerated in Article I, section 8, while the President’s powers include inherent executive powers that are unenumerated in the Constitution.
***
[D]epriving the President of the power to decide when to use military force would disrupt the basic constitutional framework of foreign relations. From the very beginnings of the Republic, the vesting of the executive, Commander-in-Chief, and treaty powers in the executive branch has been understood to grant the President plenary control over the conduct of foreign relations.
***
Attorney General (later Justice) Frank Murphy, though declining to define precisely the scope of the President’s independent authority to act in emergencies or states of war, stated that:
the Executive has powers not enumerated in the statutes – powers derived not from statutory grants but from the Constitution. It is universally recognized that the constitutional duties of the Executive carry with them the constitutional powers necessary for their proper performance. These constitutional powers have never been specifically defined, and in fact cannot be, since their extent and limitations are largely dependent upon conditions and circumstances. . . . The right to take specific action might not exist under one state of facts, while under another it might be the absolute duty of the Executive to take such action.
In essence (and, as an aside, forgive me, Professor Yoo if I overstate the case you are making), the President has almost unlimited power to act if, in his discretion, he deems that circumstances involving our national security (or his authority to conduct foreign relations) are dire enough.
Again, let me refer to the words of the master:
Vice President Dick Cheney has rightly deplored the “erosion of the powers and the ability of the president of the United States to do his job” and noted that “we are weaker today as an institution because of the unwise compromises that have been made over the last 30 to 35 years.”
Thus the administration has gone to war to pre-empt foreign threats. It has data-mined communications in the United States to root out terrorism. It has detained terrorists without formal charges, interrogating some harshly. And it has formed military tribunals modeled on those of past wars, as when we tried and executed a group of Nazi saboteurs found in the United States.
To his critics, Mr. Bush is a “King George” bent on an “imperial presidency.” But the inescapable fact is that war shifts power to the branch most responsible for its waging: the executive. […]
So what? my conservative friends say. Bush is protecting us for terrorists, isn’t he? They’re the most dangerous menace since . . . ever! He had to do what he had to do to make us safe.
Well, that’s an interesting point, I reply. Because no President has ever taken the sheer number of steps to weaken the rule of law that Bush has taken in the name of national security. Mr. Yoo has mentioned a few of them already.
A pre-emptive war and occupation of Iraq. The scouring of our private records (business, financial, email, telephone, internet, etc.) Wiretaps of our phone calls overseas without warrants issued by a judge, even the super secret judges of the FISA court. The use of torture at secret prisons (i.e., what Yoo refers to above as “harsh interrogation” and what President Bush, without any irony, calls alternative interrogation methods). Indefinite detentions of foreigners (and a few US residents and citizens) without charges, or any trial providing even a modicum of “due process” or “fundamental fairness.” And there’s even more (per Yoo):
The administration has also been energetic on the domestic front. It has re-classified national security information made public in earlier administrations and declined, citing executive privilege, to disclose information to Congress or the courts about its energy policy task force. The White House has declared that the Constitution allows the president to sidestep laws that invade his executive authority. That is why Mr. Bush has issued hundreds of signing statements — more than any previous president — reserving his right not to enforce unconstitutional laws.
Of course, I say, no one wants to make a President have to enforce an unconstitutional law, but do we really want one man to decide what’s constitutional and what isn’t? Normally, that is the prerogative of the Supreme Court. Under the Rule of Bush, however, the President gets to decide what’s unconstitutional, and what isn’t, what laws get enforced and what don’t.
About this time, many of these people start to figure it out. The Rule of Bush simply makes a mockery of Congress’ authority to pass laws and the Courts authority to rule on their constitutionality. In short, the Rule of Bush makes a mockery of the rule of law that our country was founded upon, and by which all true democracies abide. And most of them get it: that with continued Republican control of Congress the Rule of Bush will grow stronger, and our constitutional rights (i.e., the rule of law) will grow weaker.
But not everyone. There’s always a few dead enders who fail to see the problem the Rule of Bush poses to our way of life. And perhaps many of them are truly unreachable. Maybe they even prefer the “strong man” ideal of authoritarianism to the messy (and noisy) reality of an active democracy. Maybe they really do prefer that someone else do their thinking for them, tell them what to believe, who to hate, and what God to pray to at night.
But I’m an optimist. I figure there’s always the chance that even one of the most fervent worshippers of Bush might be turned from their path down the dark side. So I persist. I tell them: why don’t we …
Compare the Rule of Law to the Rule of Bush
… which of course requires a few hypotheticals (I know, those dreaded hypotheticals, but bear with me).
Hypothetical One: You’re returning from vacation overseas. While waiting in the line for customs, suddenly the police show up. They inform you that you are suspected of being a terrorist and then arrest you. What happens next?
Under the Rule of Law: The police have to charge you with a crime, which means you have to be arraigned before a judge in open court where you can be advised of the charges against you. At that time, the court may decide that the charges are bunk and no crime has been committed. If so, he or she will order the police to let you go. And they will do it
If the court determines you have been properly charged with a violation of the law, you will still have the right to an attorney to advise you, and the opportunity to go to trial, face your accusers and be presented with the evidence against you. Your fate will be decided by a jury of 12 randomly selected people, and you will have the opportunity to offer witnesses on your behalf, cross-examine prosecution witnesses, and testify yourself if you wish. Even if convicted, you will have the right to appeal the decision against you for any number of reasons, including, but not limited to an argument that the law under which you were convicted was unconstitutional.
Under the Rule of Bush:
Unbeknownst to you, because your name showed up on a terrorist watch list (maybe someone on the watch list has the same name as you, or maybe someone simply entered the wrong name in the wrong database). Under secret regulations promulgated by the department of Homeland Security, you are turned over to a federal authority (which one is never made clear to you) and flown to a secret detention facility. For all you know, you may be in another country.
No charges are ever filed against you. No attorney is appointed to represent you. No trial is ever held. You may be tortured. You may be treated to degrading and humiliating, or simply “rough” treatment at the hands of your jailers. All because you have officially (and secretly) been designated as an enemy combatant in the War on Terror. All because you took a trip overseas. If you’re lucky you may be let loose someday in another country, not your own. Maybe.
Hypothetical Two: Walking down the street one evening you come across a protest by a large group of people. You stay to listen to what the protesters have to say (it has something to do with Palestinian rights — it isn’t real clear to you what they want, so after a while you walk to your car and drive home. Unbeknownst to you (yeah, I like that phrase, so shoot me), an undercover police officer secretly takes your picture, follows you to your car and then writes down your license plate number. What happens next?
Under the Rule of Law:
Nothing. The undercover police officer asks the district attorney to get a search warrant to wiretap your phone to see if you have any connection to terrorists or other subversive organizations, but the DA rightfully informs the cop that no judge would authorize a wiretap merely because someone attended a rally for Palestinian Rights, even if one of the organizing groups is suspected of having ties to Hamas. She tells him she needs more than that to get a warrant. The cop investigates you for a while on the internet (surprise! Cops can use google too) and when he doesn’t find anything that ties you to suspicious activity, he drops the matter completely.
Under the Rule of Bush:
All the information assembled by the police officer on you (the photograph, name, license plate number, etc,) is sent to a federal data base. Upon cross-checking information in that data base with other federal data bases one day, it turns up that your wife works for a company that has a number of defense contracts (they make a widget that goes into cruise missiles, lets say). based on those two facts (wife’s employment and your name in the federal data base on people with connections to groups who support the Palestinian cause) a decision is made to tap you phone, your internet connection, and review your business, financial and tax records. All this is done without a warrant. Everything they collect on your personal life then goes into another database, this one on suspected terrorist sympathizers. You never know anything about this, but one day you suddenly find yourself unable to board a flight to Bermuda for a planned vacation because you are on the Government’s No Fly List.
Hypothetical Three: A certain unpopular (and delusional) President wants to boost his equally unpopular party’s approval ratings before the general election. He also wants (badly) to attack a certain oil rich country in the Middle East (let’s call this country “Iran”) which has begun to enrich uranium on a limited scale. He hopes that this attack not only will that make himself and his party more popular with the American people, but also, that the destruction of Iran’s nuclear facilities, and the deaths of thousands of innocent civilians, will cause its people to revolt against their Islamic theocratic government and replace it with a secular democracy which will immediately pursue better relations with America (did I say this President was delusional?) Just to be sure his attack succeeds (and because he doesn’t have enough troops or conventional weaponry in the region) he also wants to use nuclear weapons to attack the nuclear facilities and/or any Iranian military units that might decide to invade the neighboring oil rich Middle Eastern country (let’s call it “Iraq”) in order to attack the US troops which are still based there after his last (failed) attempt at nation building. What happens next?
Under the Rule of Law:
Under the Constitution, the President doesn’t have the authority to declare war. That is the sole province of Congress. Perhaps a Congress controlled by his party would give this President the authority to wage war on Iran, even though we are in no imminent danger of attack by Iranian forces or their allies. But perhaps not. Perhaps a few brave members of his party would refuse to vote for another pre-emptive war based on shaky intelligence. In any case, the matter would be heard in debate in both the House of Representatives and the senate, and the American people would have a chance to make their opinions heard to their Congressional representatives and Senators.
Under the Rule of Bush:
Bombs (and mushroom clouds) away!
Finally, a Confession
I confess. I’ve never had any conversations with conservatives or independents in which I presented these arguments about the danger the republican Party poses to the rule of law upon which our democracy is based. But I would certainly relish the opportunity to do so. Because as my last hypothetical reveals, this is a critical difference between the two parties (despite what CNN would have you believe about the brave Senators Graham, McCain and Lindsey). One party, the DEMOCRATIC Party (except for a certain turncoat in Connecticut I won’t name) opposes the unparalleled power grab by the Executive Branch under President Bush. The other party, the REPUBLICAN Party has enabled that power grab. Let me turn once more to the words of John Adams:
Liberty cannot be preserved without a general knowledge among the people, who have a right… and a desire to know; but besides this, they have a right, an indisputable, unalienable, indefeasible, divine right to that most dreaded and envied kind of knowledge, I mean of the characters and conduct of their rulers.
The Republican party stands for the refusal to share that information with the American people. They fear what the people would do if they knew the true nature of the character and conduct of its Republican Rulers, for that would expose them for what they are: brutal, amoral, corrupt and incompetent despots.
The Democratic party? They will insist that we learn all that has been kept hidden from us by Bush and the Republicans. All the lies, all the corruption, and perhaps most important of all, the extent to which the Rule of Law has been weakened, diminished and threatened by the Rule of Bush.
If that isn’t a good enough reason to vote Democratic this Fall, I don’t know what is.