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September 14, 2022

One of the most hallowed traditions of the U.S. republic is a commitment to the ideal of the Rule of Law.  Therefore, one of the most dystopic aspects of our current politics is that this ideal is under deliberate attack.

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The list of assaults is long and varied.  Consider:

  • Biden’s cancelation of student loan debt and the EPA rule recently struck down by the Supreme Court, both of which are instances of the habitual efforts of the Executive to seize upon supposed statutory ambiguities to claim vast powers never contemplated by Congress, and to use this to transfer resources to favored constituencies.
  • The treatment of the January 6 defendants, who are being deprived of constitutional rights; subjected to harsh punishments for trivial offenses; and railroaded by politically motivated prosecutors, judges, and juries.

In these cases, and in a host of others, it is not believable that the contempt for the Rule of Law is an accident or oversight.  It is an essential feature, intended to demonstrate that the Rule of Law no longer has substance, that, in the classic words of A Man for All Seasons, the laws have been cut down, and we are naked to the winds that now do blow.

So how did we get here?

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One can quibble about the precise contours of the Rule of Law, but the basic definitions are available from many sources, including the Encyclopedia Britannica (via Wikipedia) and the website of the United States courts.

Less often discussed is the nature of opposition to the Rule of Law.  One automatically thinks of the struggles against despotism, and despots do indeed resist, because what is the fun of being a despot if one has to bow to the law?

Despotism is important, especially in the context of current politics, in which the parties tend to be coalitions of special interests.  The term “despot” can encompass a tyranny of the majority, including a log-rolling coalition of special interests that coheres into a majority by agreeing to the demands of each member.

But a focus on despotic ambitions should not obscure the importance of ideological opposition to the Rule of Law.

The primary example of this is a political party of the style called Leninist.  The starting point for the enterprise is the conviction that the members of the party have insights into the nature of political and economic reality that are not vouchsafed to the populace at large.  The people labor under the burden of false consciousness, not grasping their true interests, and must be guided by the party.  

Because the party already knows the truth, and knows that some people’s understanding of it is superior, it must oppose the Rule of Law, which assumes that truth is hard to find and that everyone must be treated equally in the quest for it.  The very idea of truth becomes malleable, and comes to be defined in practice as whatever promotes the interests of the party.