Is the Rule of Law More Important Than Breathing? (A Dorf on Law Classic)

Note to readers: With the holiday break still upon us, I hereby offer another "classic" column -- OK, a rerun.  This column first ran on February 5, 2019, and it captures an important turn in my thinking about the relative importance of the various existential threats facing the world.  I cannot say "Enjoy!" without a huge dollop of irony.  I do, however, hope that it will be a useful re-read for those who saw it when it first ran and a thought-provoking piece for those who missed it.

by Neil H. Buchanan

Public debates frequently invoke -- in deeply somber tones meant to convey the utmost seriousness of purpose -- the interests of future generations.  "Our children and grandchildren" are the ultimate political prop, favored because they seem so vulnerable and deserving of our protection.

Despite my disparaging tone, I do not at all disagree that we should think about the interests of people in the future when we make public policies.  My cynicism is driven by the blatant dishonesty of so many people who use future generations to justify their agendas, the most obvious being conservative politicians who claim that "we must not pile debt on the backs" of the kids as an excuse for taking away funding for, say, education or early childhood health care.  (No, that is not a fanciful example.  I wish it were.)

There are, however, honest and selfless reasons to adjust our policies to enhance the interests of future generations -- not just the immediately succeeding generations whom we will know and with whom we must coexist at least for a time, but also for generations much further down the road.  Although the philosophical arguments supporting such a long-term obligation are surprisingly tentative (as I explained in a long law review article some years ago), at least in some policy contexts it is easy to motivate concerns for future generations.

The most obvious interest that all generations share, one would think, is to preserve the environment so that all people can live long and healthy lives.  What in the world was I thinking, then, when I wrote last week that "if push comes to shove, democracy and the rule of law must come" before environmental protection?  Can that possibly make sense?

The answer is yes, although I readily concede that this is counter-intuitive.  Before describing my argument, however, I want to acknowledge and ultimately co-opt a point that Professor Dorf and one of our frequent commenters wrote on the Comments board for my column.  They argued that it is possible -- indeed likely -- that there is no tradeoff at all between democracy and environmentalism.

Just a quick glance at the environmental records of the world's most aggressively anti-democratic regimes -- including the Soviet Union (Chernobyl) and China (air in major cities that is taking on the consistency of mashed potatoes) -- at a minimum demonstrates that autocrats can be criminally uninterested in preserving the environment.  And to the (very limited) extent that these regimes were based on political theory, the glaring anti-environmentalism in Karl Marx's writings suggests that bad environmental policies in nominally Marxist regimes are quite deliberate.

Meanwhile, for all of the failures of the major post-industrial democracies in dealing with climate change, there is plenty of evidence that such countries take environmental matters much more seriously than others do.  Even with Donald Trump's minions gleefully implementing the pro-polluter agenda favored by the Republican Party, we are still doing better than most authoritarian countries.  Germany and other democratic nations are true leaders on the environment.

Moreover, the Republicans do not and never have represented the views of a majority of Americans on these issues.  It is not democracy that is failing us but the undermining of democracy and the rule of law (when, for example, Republicans use extraordinary means to steal a Supreme Court seat and to leave lower court openings unfilled for years under President Obama, only now to be filled by extremist hacks) that is the greatest threat to our environmental future.

In short, I agree fully with the comments suggesting that constitutional democracy goes hand in glove with environmentally enlightened policy making.  If anything, however, that merely strengthens the point that I was making in my column last week, which was not about the long-term (or even medium-term) political environment but about the question of immediate-term political priorities.

As I put it there: "One would hope that the political bandwidth would be sufficient to address climate change even while shoring up our constitutional system, but if push comes to shove, democracy and the rule of law must come first."  In other words, this is one of those "if we had to choose" hypotheticals that one hopes does not reflect the real world.  It would be great if we could do both, and we should try.  But what if we cannot?  What if we do have to choose?

The reason to suspect that we do have to make such a choice, at least implicitly, is that major legislative change is quite difficult.  Passing even a half-measure like the Affordable Care Act effectively took up an entire legislative year or more of the Obama Administration.  The Republican opposition on environmental issues -- hidden behind meaningless slogans like "the war on coal" and "job-killing legislation" -- will be intense, and the larger the number of major issues that Democrats try to push, the easier it will be for Republicans both to confuse people and to paint the Democrats as being out-of-control leftists.

Again, Democrats should definitely try to make progress on as many issues as they can.  Efforts to fight economic inequality, especially through progressive income taxes and expanded wealth taxation, mutually reinforce efforts to undermine the plutocracy and restore democracy, and there are plenty of other ways in which people can try to make progress.

What happens, however, if Democrats put their best efforts into passing environmental legislation while failing to protect constitutional democracy and the rule of law?  What happens, for example, if we get a wonderful renewal and expansion of the Environmental Protection Act that represents genuine progress?  We should all be happy if that can happen, of course, but what then?

In my column last week, I invoked (what little I know about) Singapore to suggest why I am worried about a combination of a public sector that seems to provide a high level of public services across a multitude of dimensions with a government that is known for harsh and arbitrary governance.

If that is an inaccurate description of Singapore, that would be good news.  A more evocative example might be Duloc, the monarchy in the "Shrek" movies that is ruled by Lord Farquaad.  The official song of the realm is:
Welcome to Duloc, such a perfect town
Here we have some rules, let us lay them down
Don't make waves, stay in line
And we'll get along fine
Duloc is a perfect place
Keep your feet off the grass
Shine your shoes, wipe your ... face
Duloc is, Duloc is
Duloc is a perfect place
In other words, the trains run on time in Duloc, and if you have a problem with how things are done, you will be in trouble.

But it is worse than that, of course, because Farquaad can change his mind at any time and make the gleaming streets dirty or dangerous, with no opportunity for the public to say that they want Duloc to remain a perfect place.  So long as that is true, the environment is unsafe.  This, in other words, circles back to the point that I made above in response to the comments on my earlier column.

That means that Democrats need to understand that political reforms are not merely a matter of partisan advantage -- although, given how wildly unpopular Republican policies are, Democrats will certainly benefit at the ballot box when votes are not suppressed, when gerrymandering is banned, and so on.

In addition to those quite self-interested concerns, however, there is the simple fact that constitutional democracy is the only means available to protect any gains that Democrats might achieve legislatively.  Even then, of course, the Republicans are becoming ever more adept at undoing what the voters have decided, including moves after the last two elections to strip incoming Democratic governors and attorneys general of powers in North Carolina, Wisconsin, and Michigan.  That problem, however, is merely further evidence that the rule of law is under assault and needs to be defended from every angle.

Notwithstanding all of this, there must surely be something about environmental policies that push them up the priority list.  It is one thing to say that we need to protect democracy before, say, fixing the health care system or protecting LGBTQ rights.  (And even if one were to make that argument, it would still involve telling people who are suffering various harms -- including death and violence -- that they need to continue to wait.  That is not an argument that anyone would want to have to make face-to-face with any of the affected people.)  It is arguably quite another to say that, if we have to choose between the rule of law and the environment, the environment must wait.

That is an especially strong argument when we return to the intergenerational perspective, because today's young people and the generations yet unborn have to be able to breathe in order to enjoy political and personal (and economic) freedom.  Does that not change the calculus?

In certain extreme circumstances, where the environmental degradation is immediate and severe, and where remediation and adaptation would be impossible, then of course we would necessarily be in a drop-everything-else mode.  If it would take all of our political capital to, say, prevent the release of toxins that would kill millions in short order, then only a monster could say that anything else should be a higher priority.

As bad as our environmental problems are, however, we our fortunate not to find ourselves in that situation.  Many environmental harms are already inevitable, while others are avoidable, depending upon how quickly and aggressively we react.  We would not want to shrug our shoulders and say, "Oh well, we're about to lose x percent of the world's glaciers, so let's party like it's 1999.  It's too late."

On the other hand, we already know that much of our future effort will involve responses to the climate changes that are already irreversible.  Sea walls must be built, structures must be changed to deal with more frequent and severe storms, and so on.  Similarly, people are being forced to take into account matters like skin cancer or respiratory harms in ways that were previously unnecessary, dealing with them as well as possible under increasingly difficult circumstances.

If we are forced to divert our political attention to recapturing our constitutional system from the likes of Donald Trump and Mitch McConnell, environmental harms will intensify and efforts to cope will become more expensive -- and they will fall quite unevenly and unfairly on the most vulnerable among us.  This would be bad, but we are only talking about bad choices here.

The question is whether we would be doing anyone, including future generations, a true service if we were to give them some (inescapably reversible) progress on the environment while failing to give them a functioning constitutional democracy -- which is also reversible.  The answer seems clear, albeit deeply depressing and regrettable.  People living under the rule of law, properly understood, will be better able to deal with all other problems, even (especially!) life-or-death problems like the environment.