Donald Trump, Professor Tushnet and the Incredible Disappearing Rule of Law

Could a Donald Trump presidency threaten the rule of law? In a recent New York Times article written by Adam Liptak, a chorus of conservative and libertarian legal scholars answered "yes," highlighting a number of ways in which the presumptive Republican nominee (in Liptak's words) "shows contempt for the First Amendment, the separation of powers and the rule of law."

Writing at the Balkinization legal blog, Professor Mark Tushnet offers a dissent of sorts, stating that he "almost certainly wouldn't endorse the view that Trump shows contempt for the rule of law." Not that Tushnet (himself a political progressive) agrees with Trump--rather, he regards "the rule of law" as "almost entirely without content," in significant part because at any given time "a reasonably well-socialized lawyer can mutter words showing that any proposition asserted to show contempt for the rule of law is actually consistent with it." He also avers that agreement amongst "well-socialized legal professionals" concerning what behaviors are consistent with the rule of law is "historically contingent." Tushnet thus likens the rule of law to Brigadoon, the fictional Scottish village that appears for only one day every hundred years. Like Brigadoon, the rule of law is "here (with respect to specific propositions) for a while, then gone (with respect to those propositions)."

I have elsewhere expressed my substantive disagreement with Tushnet's understanding of our law. But Tushnet raises a genuinely concerning possibility--the possibility that legal professionals' understanding of the rule of law that the Constitution is designed to establish might erode to the point where judges frequently uphold unlawful assertions of government power.

In truth, such erosion has already taken place on a massive scale. Many important areas of our jurisprudence leave us at the mercy of precisely the kind of coercive power that the Constitution was designed to protect us against. To prevent further erosion, we must precisely define the rule of law and understand how the Constitution is designed to secure it; focus attention on the myriad ways in which the federal judiciary has failed to maintain it; and call upon the federal judiciary, in particular the Supreme Court, to repudiate doctrines that undermine the rule of law and to consistently enforce the Constitution.

Just what exactly is the rule of law? Although the concept has ancient roots and has been refined over the centuries, the rule of law has always promised the rule of reason--a legal regime in which limits on coercive power are not set by the mere will of any person or group of persons but by fixed, publicly-known, rational principles. It took classical liberals like John Locke to explain the connection between the rule of law and the legitimacy of government. Locke wrote that "men would not quit the freedom of the state of nature" if a government did "not preserve their lives, liberties, and fortunes." Thus, a government that claimed "absolute Arbitrary Power over [private citizens'] Persons and Estates, and put a force into the Magistrates hand to execute his unlimited Will" would be illegitimate because it would render individual rights more insecure than they would be absent any government at all.

The American Constitution is designed to secure the rule of law, to the ultimate end of securing individual freedom. Arbitrary government power--government power to compel members of the public to act (or forbear from acting) on the basis of the mere will of the politically powerful--is contrary to the Constitution's fundamental premises. Under the Constitution, all government powers are, as James Wilson put it, "so many emanations of power from the people." "We the People" delegate (that is, transfer) powers to our agents in the executive, legislative and judicial branches of the federal government to act on our behalf. What legitimate governmental "powers" are not delegated to the federal government are "reserved to the States respectively, or to the people." Because no one can transfer to others more power than they rightfully possess, neither states nor the federal government can rightfully claim arbitrary power--no one can has the right to rule any other mature, rational adult by mere will in the first place.

The Constitution also throws up multiple structural impediments to arbitrary power. Thus, the separation of legislative, executive and judicial powers at the federal level, the division of the national legislature into two houses and the distribution of the primary power of the people between the federal government and the states promote deliberation and provide multiple opportunities to thwart measures that are inconsistent with the law of the land. By establishing courts with judges who are duty-bound to give effect to "[t]his Constitution," rather than merely deferring to government officials' will, the Constitution ensures that the branch of government that is most insulated from majoritarian pressures and is least capable of initiating rights-violations has the final say in determining whether a particular assertion of government power is lawful.

But we should not be led to believe that we live under the rule of law simply because we have a Constitution that is designed to ensure lawful rule. The rule of law describes a state of affairs in which a system of rules actually constrains government power. And there are many areas of American law today in which the rules set forth in the Constitution are simply not enforced when assertions of government power are challenged in court. The Constitution vests three distinctive kinds of government power in three separate branches of government and imposes upon Article III judges a duty of independent, unbiased judgment--but the Supreme Court has allowed an alphabet soup of federal executive agencies to wield all three kinds of government power over increasingly broad swaths of American life and has created doctrines of systematic judicial deference to agency fact-finding and interpretations of the law that require judges to render biased judgments. The Constitution declares itself to be the "supreme Law of the Land"--but the Supreme Court has invented immunity doctrines that often protect government officials from civil liability when they inflict egregious constitutional injuries upon private citizens, thus effectively elevating officials above our supreme law. The Constitution guarantees to every person the right to earn a living in the occupation of his or her choice, free of licensing restrictions that only serve politically powerful special interests--but the Supreme Court's impossibly deferential formulations of the "rational-basis test" have led lower courts to not only turn a blind eye to naked economic protectionism but to actually endorse such protectionism as a constitutionally legitimate end of government. In all of these contexts (and more), the rule of law has already eroded, owing to an abdication of judicial duty.

In order to prevent further erosion of the rule of law, we must identify and call upon the judiciary to repudiate doctrines that allow the government to exercise arbitrary power. The Supreme Court has overruled decisions that rested upon erroneous interpretations of the Constitution--it should recognize as well that it can err in promulgating doctrines to guide judicial decision-making, and revisit doctrines that command systematic deference to government officials and undermine the supremacy of the Constitution. Judges at all levels of the Article III hierarchy have a duty to expound the law candidly and accurately and should draw attention to the crippling flaws in these doctrines, even when they are constrained in their decisions to follow them. (DC Circuit Judge Janice Rogers Brown's criticism of the rational-basis test in her concurrence in Hettinga v. US offers an example that is worthy of emulation.) The proper framework for evaluating assertions of government power--the only framework that equips judges to discharge their duty of independent judgment--is judicial engagement. Judicial engagement entails impartial, evidence-based judicial inquiry into the lawfulness of the government's true ends and means, without deference to the government officials' beliefs about the law or unsupported factual assertions.

Appeals to the rule of law are--and ought to be--a fixture of American political life. But we cannot allow the rule of law to become an empty phrase. We must thoroughly understand the rule of law, we must rehabilitate areas of our jurisprudence that deprive us of lawful rule and we must insist that judges are duty-bound to ensure that the reason in our law is not trumped by mere will. Only then can we ensure that "the law is king," not merely in theory but in fact.

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