The Rule of Law v. Rule by Power
A column in this space four weeks ago asked Democrats to consider carefully what they mean when they say they want to save “our democracy.” Within western civilization alone, democracy is a rich tradition inherited from more than two thousand years of learning to live together. Go back another hundred thousand years or more and the tradition is probably even older, even if the hunter-gatherers on the African savannah probably had different names for it.
Our present notion of democracy took considerable effort, and it has run off the rails as often as it stayed on track. One way we have tried to keep moving forward, to be progressive, is the Rule of Law. It may be that if humans were angels we would not need governments, but governments in the wrong hands cause their share of problems. To keep those hands off the throttle, we have the Rule of Law.
If the Rule of Law means anything, it means that we take principles like liberty and fairness seriously. We come to wide, long-standing agreement on what counts as a principle. We get there by means of rigorous arguments for and against proposed meanings and practical applications of a principle. All that discussion can obviously get very complicated so we try to keep it manageable, to keep it within some guardrails, so we can negotiate our differences then get on with our lives.
For example, we would never allow a President to incite a violent riot and claim to be defending the principle of free and fair elections. We would not allow such a President to claim to defend democracy from those sneaky Democrats who sprinkled pixie dust on all the ballot boxes and voting machines — Democrats so sneaky that they even let the President run up four-to-one majorities in red counties like Bandera so they could gaslight their shenanigans in Houston.
The guardrails include a method (some would say an art form) called legal reasoning. Its origins are in the Socratic dialogue, the art of asking someone if they accept the implications of what they are claiming. The European Medieval university elaborated the art of asking the right question into a teaching method, the syllogism, in which the teacher proposed a thesis, the student disputed it, and the teacher showed how they were really both on the same page. In legal reasoning, this give and take is called a “hypothetical.” The teacher or the judge behind the bar asks the law student or attorney if they would still argue for the same ruling if a particular fact in the case was different.
Several other guardrails help maintain the Rule of Law. One of the more important , the independent judiciary, is unfortunately not doing too well these days. Ronald Reagan made four nominations to the U.S. Supreme Court. Two were clearly identified as very conservative. Yet even William H. Rehnquist and Antonin Scalia were approved with 29 and 46 Democratic votes, respectively. Things shifted some in 1991 when only 11 Senate Democrats voted for Clarence Thomas, but perhaps that was due to sexual harassment accusations at his hearing. At least by 1994 some harmony returned when Clinton’s nominee, Stephen G. Breyer, got the votes of 33 Republican Senators. When he announced his retirement recently, Chief Justice John G.
Roberts, Jr. called him “a tireless and powerful advocate for the rule of law.” Roberts himself got 22 Democratic votes for his 2005 Senate approval.
In 2020 no Democratic Senator voted to approve Amy Coney Barrett. Since Roberts’ confirmation neither the other Republican nominees (Alito, Gorsuch and Kavanaugh) nor Democratic nominees (Sotomayor and Kagan) have done much better with the other party’s Senators.
So it is no surprise that it is very hard to maintain that the highest court in the land is neutral, balanced like the scales of justice. Decisions in the Texas reproductive freedom case and the Alabama equal representation case have not helped, in particular because the hard right majority used its power to evade legal reason and hide in the shadow docket.
Tom Denyer has resided in the county since 1979.