Living Without the Rule of Law

-- Posted by Neil H. Buchanan

Long-term economic stagnation is damaging to every aspect of society. Perhaps our greatest worry is that continuing high unemployment and its associated ills will result in a breakdown of our system of government. I raised this possibility in a column last year, in which I pointed to the historical example of inter-war Germany. While that example is obviously extreme, there is a very real possibility that the current economic crisis -- though falling well short of destroying the government entirely -- will nonetheless permanently alter our system of government, in large ways and small, with increasingly radical politicians taking over the system and twisting the rules to their further advantage.

Even to think about how to predict and understand the consequences of crisis-induced systemic change is daunting. The profound nature of the possible changes makes them seem unlikely to the point of implausibility; and even if such changes have now become plausible, we have very little experience that is helpful in allowing us to predict what will change, and how. The stakes, however, are high. Ultimately, the continuation of our constitutional democracy, and of the rule of law itself, could be at risk.

A few recent films have caused me to think about what it really means to live with -- and without -- the rule of law. "The Black Power Mixtape: 1967-75," is a fascinating documentary that is an edited version of clips from Swedish television crews, who came to the United States in the latter years of the black civil rights movement to interview people like Angela Davis, Stokely Carmichael, and Bobby Seale. (Interesting fact: These interviews were so critical of U.S. policy toward African-Americans that they led to a diplomatic crisis between the U.S. and Sweden.)

While there is much to ponder from that period that is relevant to the rule of law (and its unequal application to American citizens), what has stayed with me after seeing the movie is its description of the prison uprising at New York State's Attica prison in 1971. Not having been old enough at the time of those events to understand what was happening, all I remembered was that there was a riot, the state cracked down, and a lot of people died. Years later, in 2000, I remember seeing the headlines about the state admitting culpability and agreeing to pay millions in damages to survivors. (This year is the 40th anniversary of the Attica riot and attack, which has generated some recent interest in the events there as well.)

The final death toll from the state's assault on the prison was 39 people, including 29 prisoners and ten guards who had been taken hostage. Originally, the state claimed that the rioting prisoners had cut the throats of the victims, but autopsies later revealed that this was false. Nine of the ten hostages had been killed by police or army fire.

Now consider two other films, both of which deal with other countries and other times. "Sarah's Key," a dramatic film that is sure to be nominated for multiple Academy Awards in 2012, builds its story around the part of the Holocaust that was perpetrated by the French government in 1942. Tens of thousands of French Jews were rounded up by the French police and army, and then sent to the Nazi death camps. In the film, current-day journalists interview a living non-Jewish Frenchwoman who lived near some of the key events, asking her why nothing was done to stop the tragedy. The woman responds: "No one was sure what was happening. And even if we had known, what were we supposed to do? Call the police? The police were the ones who were doing this!"

"All Your Dead Ones," a Colombian film that mixes absurdist comedy with political insight, depicts a poor farmer in an unnamed South American country who suddenly discovers a pile of about 50 dead bodies in the middle of his corn field. The film follows him as he goes into town to try to report the atrocity, which has occurred in the midst of a national election that is being observed by international human rights organizations. It is unclear who is responsible for the killings, with rival political groups terrorizing the country, and the palpable tension in the film derives from knowing that the farmer could easily be killed for reporting the killings to the wrong people -- the mayor, the army, a journalist who might (or might not) have ties to the perpetrators, or others. Is it even an option not to report what happened, or would he be in worse trouble if he tried to bury or burn the bodies? Although a work of fiction, the film portrays what happens when people have absolutely no idea who can be trusted, and when "calling the police" can be the worst possible option.

Which brings us back to Attica. For everything that went wrong, what still impresses me the most is that there was an independent medical inquiry, that the doctors wrote down their findings, and that those findings were released to the public -- all within weeks or months of the events. This is obviously not a "U - S- A! U - S - A!!" moment, because so much went so horribly wrong. It does, however, bring into clear focus what it means to live under something resembling the rule of law. Without the rule of law, no one is able to tell the truth without endangering their lives -- most likely in a futile attempt to overcome systemic corruption.

In the context of the United States in 2011, that kind of generalized lawlessness is thankfully still quite unthinkable. I am not naive enough to imagine that evidence is never suppressed, of course. It is just that we have reason to believe that people can and do still try to prevent that from happening. But where is the tipping point? When does the civic culture reach the point where no one can trust "the authorities"?

At the very least, it occurs to me that the answer to this question -- When is the rule of law in danger of being lost? -- has almost nothing to do with the "size of government" debate that consumes the U.S. political world in the 21st century. Small governments can be paragons of upholding the rule of law, or they can be venal enablers of thugs or businessmen who ruthlessly do their worst and make sure that they face no consequences. Large governments can be rife with corruption and inside dealing, or they can carefully maintain checks and balances that prevent anyone from abusing the state's powers.

The debate over the size of the government is important on its own terms, of course. As my posts on this blog, and my columns on Verdict and FindLaw, make clear, I think that the policies of anti-government zealots are quite damaging to the U.S. and the world. When I think about what really, really scares me, however, it is not proposed regressive changes to the U.S. tax code, or cutbacks in the EPA's budget -- as important as those issues are. What gives me nightmares is the possible loss of the rule of law. When people no longer believe that they can tell the truth without paying a horrible and unpredictable price, then we have really lost everything.