Friday, October 07, 2011

Who Most Seriously Threatens the Rule of Law?

-- Posted by Neil H. Buchanan

In yesterday's post, I used three recent films to frame a discussion about the fundamental importance of the rule of law in allowing citizens to live without fear. I quoted a fictional conversation from "Sarah's Key," in which a non-Jewish Frenchwoman said that there was nothing the citizens could have done to stop the French government's deportation of French Jews to the death camps, with the woman saying that it would have been pointless to call the police, because the police were perpetrating the crime.

To be clear, I am not saying -- nor did I see that movie as asserting -- that the French populace was uniformly opposed to those atrocities. There was clearly a great deal of anti-semitism in that society, which enabled the extermination policies to proceed. The point that I was making was simply that, if one had wanted to say or do something against the policy, one would have put oneself in grave danger. The larger point is that the rule of law, understood in its broadest contours, protects people who act in good faith and tell the truth, even when the truth would harm the interests of powerful parties.

At the end of yesterday's post, I commented that the current divide in U.S. politics over the appropriate "size of government" is logically orthogonal to the rule of law question. That is, it is possible for "big government" to trample the rule of law, or to preserve it. Similarly, "small government" can go either way. (I use scare quotes because the size of government question is itself incoherent, due to what I call the baseline problem. I discuss that question here.) Or, to view it from the other angle, people can be punished for doing the right thing by gangsters and thugs who have shrunken and marginalized a country's government, or by thugs who are part of the government itself.

Even though there is no direct logical connection between the size of the government and threats to the rule of law, however, it is possible that, in practice, people who favor one kind of government also favor policies that threaten the rule of law. This is a different version of Professor Dorf's observation in his post earlier this week, in which he discussed the difference between the rules/standards debate and the objective/subjective debate. As he pointed, there is no reason why a person who prefers rules could not prefer subjective tests, nor why a person who prefers standards might opt for objective tests. Still, as Professor Dorf notes, we typically see people who prefer rules also preferring objective tests -- the most obvious example being Justice Scalia.

In that light, we can ask whether the current groups that view themselves as being "against big government" are, as a matter of policy, more or less of a threat to the rule of law than are people who are "for big government." Of course, much of the rhetoric of small government advocates appeals to concerns about the rule of law, with the idea that Big Brother should be defeated to protect our liberties. That, however, is merely evidence that they do not understand the point that I summarized above (and in yesterday's post). But what do the actual approaches and policies of the self-described champions of small government look like, from a rule of law perspective?

John Dean, of Watergate fame (and now a co-columnist on Justia's Verdict) offers a withering account of the anti-government activists in U.S. politics. In his book Conservatives Without Conscience, he described social psychology research that identifies personality types within civil society. Dean's argument in the book is that the "authoritarian" personality type is especially strong in the American conservative movement. In a recent column on Verdict, Dean updates his book to look specifically at the Tea Party conservatives, a label which did not exist when his book was going to press. He concludes that there is nothing new in the Tea Party, that it is merely a new name for groups that exhibit a deep strain of authoritarianism.

I encourage readers to look at Dean's column and book, which explain his argument in much more depth than I can muster here. (He is also current writing a series of columns that touch on these issues in the context of the 2012 elections. The first two entries in that series are here and here.) For now, I will simply point out that Dean's definition of "authoritarianism" (taken from the work of Professor Robert Altemeyer) tracks very closely with attitudes that are inconsistent with respect for the rule of law. For example, he says that these conservatives increasingly "view those who do not exploit ambiguity and the unwritten traditions of our system to their advantage as fools—people who can be taken advantage of, and whose ignorance and naïveté are, in fact, being exploited."

In other words, the problem is not that some people are in favor of a particular set of policies with which John Dean might disagree, but that they are willing to do anything to get what they want. People who resist are to be crushed. It is easy, in this light, to imagine a Bachmann or Perry administration readily eliminating many of the rules that protect whistleblowers and others who might bring inconvenient facts to light.

Of course, there are troubling defenses of authoritarianism elsewhere on the political spectrum. The Obama administration's defense of warrantless wiretapping, executive immunity, and indefinite detention are all deeply troubling, precisely because they continue (and in many ways strengthen) the authoritarian policies of the Bush Administration, rule of law be damned.

Measured in the aggregate, however, it turns out that the "small government" supporters are also the most aggressive group in breaking down protections of the rule of law. The Obama centrists are a mixed bag, while the few genuine "big government" supporters in the U.S. have shown no apparent tendency to undermine the rule of law. (They might be capable of doing so, but the track record just does not show it.) As I said at the beginning of this post, that correlation is not logically required. It is, however, a clear and disturbing pattern.

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