Trump is the first presidential candidate of my lifetime who has been regularly criticized for making public statements conforming to rule of law principles. Part of the confusion in the minds of his many critics arises from simple confirmation bias. But another part comes from an inability of his critics to plainly discuss what they mean by the rule of law. No doubt much of it is simply disagreement with the man’s over-the-top style and his political orientation—but normal disagreement about political principles, absent clear on point evidence, ought not lead to claims that one’s opponent is a threat to the rule of law.
So what is the “rule of law”? Unfortunately, there is no simple answer to that query. I well remember my graduation from law school. A thoughtful fellow behind me said, as we waited on line to receive our degrees: “Seth, after three years of law school, as far as I can tell, the rule of law is what a prosecutor says is at risk if he loses a criminal case heard by a jury.” That answer of convenience will not do. Other people fill in the rule of law with all good and noble principles: the rule of law is human rights, separation of powers, democracy, etc. This approach is not helpful either, for even if the virtues of these other principles were contestable, their content and optimal scope remains deeply contested.
Without attempting to fully define the rule of law, I will put forward some minimal necessary (but not sufficient) conditions associated with the “rule of law”. A person’s conduct is inconsistent with the rule of law, if he knowingly disobeys established law without seeking a change in the law from the legislature (including referenda where permitted by law) or validation of his specific conduct from the courts. On the other hand, a person’s conduct is consistent with the rule of law, if he obeys the judicial orders of lawfully constituted courts, and if he obeys the rules associated with the conduct of litigation in those courts.*
5 thoughts on “Seth Barrett Tillman: <i>Trump, Confirmation Bias, and the Rule of Law</i>”
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I cannot recall who made the comment but someone described the press coverage of Trump as akin to a restaurant critic complaining that the food was bad and the portions too small.
“No, this is called “authoritarianism.” It’s what Berlusconi sounded like, what Chávez sounded like and what Perón sounded like — for that matter, it’s what Sulla and Caesar and the others who helped destroy the world’s first great republic sounded like: I am bigger than the law, I AM THE LAW”
What Trump said doesn’t even compare to Obama’s infamous rebuke of the Supreme Court to their faces during the 2010 State of the Union speech while half the room wildly cheered him on. Obama also criticized the court again a few months ago when they blocked his executive order legalizing. That ruling was 4 to 4. If Post really cares about someone declaring they are bigger than the law (someone who uses executive orders to circumvent the legislative process for instance or just ratifies treaties without Senate approval), maybe he better have a look himself before it’s too late.
I was flabbergasted by Prof. Tillman’s assertion that there is not simple answer to what the rule of law is. It seemed to me that the rule of law means that when offenses, disputes or controversies arise they are resolved by consistent application of preexisting rules or laws by an independent judiciary. That is why we have a government of laws not men. But it must not be that simple.
Whatever happened to “natural law?”
Could an Act of Congress, signed by the president, compel mating with one’s sibling?
(OK, I like the pun on “Congress.”)
One could question “gay marriage” on the same basis.
Like Mrs. Davis, I thought it was simpler – and my sense had been like hers. Isn’t it that no will (including Obama’s) has priority over precedence in codified law? It is the basis of a trade economy, a contractual one, a capitalist one – isn’t it? In the chaos of the open market the boundaries and criteria remain strong – one man’s religious beliefs, speech or mousetrap is judged by criteria not decided by power or influence – the deciding boundaries are the rules of the game, having precedence in both power and time from the game – any application – itself. Isn’t it as Coke said of that early law & contract – “Magna Charta is such a fellow that he will have no sovereign.”(Wiki quotes credits:Debate in the Commons 1628-05-17)
And as I get older that natural law seems wiser and wiser. Moving away from it (and yes, gay marriage and issue reassignment seems to be just that) seems fraught with peril. I remain as I did 50 years ago, respective of gay unions which can be fulfilling, rich, and meaningful. But ignoring the reason for loveless and loving marriages throughout time seems to ignore our purpose and responsibility for our culture/species/genome.
Surely law is too complex to be simplified like this by those not privy to its deep history, but is it that much more than an agreed upon restraint on man’s will?