American Rule of Law is Dead

We must resurrect it or face the consequences

The Austrian economist and political philosopher Friedrich August von Hayek succinctly stated a crucial truth when he said, “It may even be said that for the Rule of Law to be effective it is more important that there should be a rule applied always without exceptions than what this rule is.” In a legitimate government of the people, the law is the law, no exceptions. If the rules of a game can be arbitrarily changed or are only randomly applied to certain players, then there might as well not be any rules at all, and anyone who follows them is a fool.

In the American system of government, one person is tasked with ensuring the proper functioning of our laws. Describing the basic functions of the President, Article II, Section 3 of the Constitution states, “he shall take Care that the Laws be faithfully executed.”

Yet the presidency has failed in this most basic duty. In the wake of this dereliction, it has been horrifying to watch just how quickly the rule of law in our country has come crashing down.

AI-generated image by OpenAI’s DALL·E.

The Decline of the Rule of Law

The re-election of Donald Trump has had clear impacts on both the right and the left. President Trump and his allies interpreted his victory as vindication of all their past actions and an endorsement of dictatorial-like powers for the President. Many Democrats, on the other hand, chose to learn the lesson that respect for democratic norms and the Constitution was not important to voters and should, therefore, be discarded.

DS readers know that I am a long-time student of Brazilian history. Brazil’s first attempt at republican governance (1889–1930) failed to attain authenticity. During this period, the idea of representative government was a hollow cover for a giant political machine composed of loyal politicians and oligarchs who ran the country. The insincere nature of the rule of law in Brazil at that time was summed up in the popular phrase, “For our friends, everything; for our enemies, the law.” We see that attitude reflected all around us now.

The administration of President Joe Biden followed up the election with a series of blows to the rule of law. The most public assault came when President Biden decided to pardon his son, Hunter. Despite promises not to abuse his power, the then-President reversed course and wrongfully declared his son a victim of partisan justice. Later, other members of the Biden family received pardons as well. Another controversy arose when the President pardoned Leonard Peltier, a Native American activist who murdered two federal agents. Peltier’s pardon was popular among the far-left, and so the President carried it out despite pleas from the FBI director not to grant mercy to a “remorseless killer.” For the President’s friends, partisans, and family, mercy flowed freely.

Biden committed yet more sins against the Constitution. Amid his mercy spree was a slew of pardons for individuals that President Biden clearly stated had committed no crimes. These individuals included General Mark A. Milley, Dr. Anthony S. Fauci, and politicians who had participated in the investigation of the January 6th insurrection. Biden issued these pardons to protect these individuals from sham charges brought by the Trump administration seeking revenge. However, by issuing these pardons, Biden effectively declared justice in America a lie. Our justice system should be robust enough to defend innocent Americans from an administration acting in bad faith. If it is not, then why should any of us place our faith in it?

AI-generated image by OpenAI’s DALL·E.

The Fall of the Rule of Law

Upon taking office, President Trump found the American rule of law bloodied and beaten on the side of the road and decided to kill it and burn the body.

Trump moved swiftly to issue a blanket pardon for all his supporters involved in the attack on the Capitol on January 6th, 2021. No mere rioters, but perpetrators of some of the worst political crimes in American history, were rewarded for their atrocious behavior because the politician to whom they were loyal won an election.

Amid a series of constitutional violations, President Trump has continued to make a mockery of the idea of justice. The President has shown an alarming willingness to rob justice on behalf of anyone who praises him or offers him loyalty. Such was the case of disgraced former Illinois Democratic Governor Rod Blagojevich, who found himself the beneficiary of a presidential pardon. On his way to prison, the corrupt former Democratic Senator of New Jersey, Bob Menendez, expressed his support for the President as he shamelessly pandered for clemency. The administration is now pressuring Romania on behalf of the Tate brothers who seem to have merited this intervention by being famous and liking Donald Trump. Most notably, the embattled Democratic Mayor of New York, Eric Adams, has been spared by the Trump administration in exchange for his political loyalty.

The effort to clear Adams has led to the resignation of at least seven Justice Department officials. Most recently, Assistant United States Attorney Hagan Scotten resigned rather than follow the administration’s orders to dismiss the charges against Mayor Adams so that he could focus on Trump’s immigration priorities. “No system of ordered liberty can allow the Government to use the carrot of dismissing charges, or the stick of threatening to bring them again, to induce an elected official to support its policy objectives,” said Scotten, a man with a deeply conservative and patriotic background. “If no lawyer within earshot of the President is willing to give him that advice, then I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion. But it was never going to be me,” read the final lines of Scotten’s resignation letter.

True to the Brazilian maxim, punishment has been reserved for the President’s enemies, members of law enforcement and the federal government who investigated the alleged crimes of the President and his supporters.

The Slippery Slope of Justifying Tyranny

Returning to Brazilian history, we come to the year 1964. The Brazilian military launched a coup and removed the President with the backing of many right-wing politicians. The military then attempted to form a new executive branch with extremely broad powers. The Brazilian Congress, including many individuals who had supported the coup, blocked the move and called for negotiations. These politicians soon realized they had made a deal with the devil from which they could not free themselves. The military had no interest in negotiating; instead, they issued “Institutional Act #1.” This act simply declared that the military executive now had all the powers they had requested from Congress. With this move, the badly damaged Brazilian rule of law died.

Laws, rules, and the Constitution itself meant nothing anymore because the military could simply change the rules at any point and for any reason. That, in fact, is exactly what they did. Early institutional acts focused on empowering the military and making high-level political changes. But by 1968, the military was issuing the infamous Institutional Act #5, which suspended all individual rights outlined in the Brazilian Constitution and gave the nascent dictatorship virtually unlimited power. As I once wrote, the IA-5 ushered in “a reign of terror based on gruesome torture, exile, and state-sponsored murder.” Guerilla warfare and terrorist violence soon followed. If the government would not play by the rules, then neither would its opposition.

Institutional Act #5 (Source: Arquivo Nacional)

President Trump appears unconcerned with—or even proud of—the damage he has already caused. In response to accusations that he is violating the law and the Constitution, the President posted the following:

Trump is intentionally quoting Napoleon Bonaparte, the power-mad French Emperor who established complete political domination over his own country in the name of “saving democracy” before subjecting an entire continent to more than a decade of war and bloodshed. The danger behind the President’s line of thinking is hard to exaggerate. The idea that an individual who believes themselves to be “saving their country” is above the law makes our Constitution meaningless and political power a weapon. In the First Institutional Act, the Brazilian military also declared that they were justified because their actions reflected the “interests and will of the Nation.” Tyrants from Hitler to Robespierre believed they were saving their countries and that therefore their actions were righteous.

Lastly, we turn again to Hayek, who argued that in a liberty-loving individualist society such as ours, the “principle that the end justifies the means” constitutes the “denial of all morals.” Americans and our institutions must insist upon the resurrection of the rule of law. Otherwise, we will sacrifice our constitutional system of rights and protections on the altar of so-called “government efficiency.” We will cease to be citizens in a republic and, instead, become mere subjects of an arbitrary power we created but cannot control.

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