“We are in bondage to the law so that we might be free.”
Cicero (106-43 BC)
the law is a ass—a idiot.”
Mr. Bumble Oliver Twist, Charles Dickens
When I first conceived of this post, I was going to basically describe a great article by Kim Lane Scheppele, When the Law Doesn’t Count: The Rule of Law and Election 2000, in which in addition to providing a devastating critique of the actions of the Supremes and how they violated some of the basic tenets of the Rule of Law, describes how many countries with “horrors” in their past (Germany, Russia, various Eastern Europe countries) have included specific “Rule of Law” clauses in their constitutions. I was going to propose that the United States might profit from adding a similar amendment to our constitution. I still think that it is a great article, (Do read it, but be warned that it will infuriate you all over again. I found it via Lawyers, Guns and Money, which I found in turn via MB’s hockey blogging, which shows that though the wheels of blogging grind fast, they grind Non sequiturously) and such an amendment is still is probably a good idea for the US. However, after watching the various “Accountability Follies” that have played out over the last few months between Bushco and Congress, I am less sanguine about the capacity for any combination of mere words on parchment or paper to save us from ourselves, now or in the future - especially if those words are to be interpreted by the likes of the Roberts court. These days I am thinking more along the lines of what to do right now, because I think John Rogers got it exactly right in his L33T Justice post at Kung Fu Monkey :
They have found the “exploit” within the United States Government. As I watched Congressmen and Senators stumble and fumble and thrash, unable to bring to heel men and women who were plainly lying to them under oath, unable to eject from public office toadies of a boot-licking expertise unseen since Versailles, it struck me. The sheer, simple elegance of it. The “exploit”.
The exploit is shame.
We are faced with utterly shameless men. Cheney and the rest are looking our representatives right in the eye and saying “You don’t have the balls to take down a government. You don’t have the sheer testicular fortitude to call us lying sonuvabitches when we lie, to stop us from kicking the rule of law and the Constitution in the ass. You just don’t. What’s beyond that abyss — what that would do to our government and our identity as a nation — terrifies you too much. So get the fuck out of our way.”
(I looked for an image that included Cheney, but when I uploaded it to Imageshack, everything stopped working and I couldn’t get back in to the site and then I got this nasty e-mail from them talking about lawsuits and “Terms and Conditions” and it seemed like they were having a bad day, so I stayed with just these three.)
It is interesting to note that Rogers does not ascribe the “exploit” to some loophole in the Constitution or US Law (which is what I was expecting when I started the article), but rather to our basic sense of how minimally decent people behave. Now, of course, a lot of people in this world are not minimally decent, or they may be, but don’t behave that way all the time (especially when in positions of power), thus there are laws in general, and in the US in particular, our Constitution with its “Checks and Balances”. But is the Constitution up to it? Would any Constitution or system be? It was not by chance that I chose a quote from Cicero. Do I actually think we are on the verge of dictatorship? No, not really**. Do I think the country’s governmental institutions and sense of “civic nationalism” have been severely damaged and that we are in a “Constitutional Crisis”? Damn straight. But as with other “Constitutional Crises”. I think that this is more a crisis of national character than it is of law or the Constitution. The laws will follow if as a nation we truly have it in us to face the madness and call it for what it is**.
But for now we are left with the last resort of impeachment. Since Gonzalez has been so contemptuous, and has done it right in Congress’s face, there is actually some feeling that he may actually have a chance to become the first sitting Cabinet member in US history to be impeached. But don’t count too much on it, I think “troopers” like Specter will go right back into the nutjob Republican fold when push comes to shove - and the Washington press corps will give him (and others) cover when they do, if only to avoid all that icky partisanship. So I think that Alberto will leave his post precisely on the day calculated to trade off political cover for Republican candidates with the Administration’s need to not have a functioning Justice Department.
Because that is the only reason Abu is still alive and kicking in Washington - the need for a partisan, dysfunctional Justice Department to protect Bush/Cheney. Otherwise we might be talking the real I-word (and forget Cheney for the moment - I know he runs things, but The Shrub is the symbol - and it is symbolism that we are dealing with here at this point.) But what am I saying? Bush will never be impeached and the Dems would never even try. And until a few months ago, I was right there, with tactical political justifications at the ready. But thinking about it right now, I am in favor of going for it. Write up articles of impeachment on all three of the bastards! Do it simultaneously! We (and Congress) owe it to the framers, to the Constitution, to the idea of what this country could be, to a positive dream of America. I understand that we most certainly will lose, but silence is assent - this behavior, this outrageous charade of an Administration cannot be allowed to pass without being challenged, and challenged within the tools of law at our disposal, flawed and weak though they may be.
**There are two nagging concerns that I have that erode my confidence in my predictions - and that is the respective characters of the Press and the Supreme Court. Both are disasters at the moment. The awfulness of the press (literally) speaks for itself. To date Roberts is everything I feared and worse, a smoother, slicker Ken Starr with a seemingly terminal case of White Boy Deranged Entitlement Syndrome. Couple that with Scalia’s formalistic bullshit originalism (except when the need arises to ignore all that crap and deliver a desired political result) you have a really, really scary court. However, to end on a slightly more positive note do go read the Jack Balkin essay I linked above entitled Basic Law, Higher Law, Our Law– An Essay on Constitutional Redemption , it is a refreshing antidote to the originalist obfuscation you get from the Scalias of the world.
Responses to “Rule of Law”