There are serious criticisms to make about this new Trump administration, but repeating incantations about democracy and free trade and the rule of law are not serious critiques.<\/p>\n
Notes Wikipedia: “An incantation, spell, charm, enchantment, or bewitchery is a magical formula intended to trigger a magical effect on a person or objects.”<\/p>\n
Judicial supremacy is not the rule of law. Judges don’t get to adjudicate every decision of the executive branch. Judges and lawyers need to stay in their lane. There is not one overarching narrative for all of life. Law is not the sole standard for executive action.<\/p>\n
If you are losing an argument with the glib, accuse your opponent of being reductive (to democracy or liberalism or expertise or authority or free trade or the rule of law). The world is so complex that to have a discussion or to create a predictive or explanatory model, we always have to reduce variables. <\/p>\n
Asking “What then?” or “So what?” are useful prompts for clear thinking. <\/p>\n
Political science professor Darel E. Paul writes<\/a>:<\/p>\n \nIn the view of his opponents, Donald Trump\u2019s single greatest threat is to something called \u201cthe rule of law.\u201d The president\u2019s executive order disciplining lawyers and law firms that \u201cabuse\u201d the legal system and federal courts? Violation of the rule of law. The administration\u2019s withholding of billions of federal dollars from Harvard University? Violation of the rule of law. Shutting down the Voice of America? Violation of the rule of law. Banning natal males in female sports? Violation of the rule of law. Refusing to extract Kilmar Abrego Garcia from the Salvadoran prison to which he was mistakenly deported? Again, violation of the rule of law.<\/p>\n Trump is hardly alone in assuming this role. Americans and Europeans alike condemn right-wing populists in Poland, Hungary, Germany, France, Italy, and beyond for their inveterate threats to what is universally referred to as the rule of law. The concept is even used as a synonym for democracy. In the recent words of the German Foreign Office, placing the right-wing populist party Alternative for Germany (AfD) under the highest level of government surveillance was an expression of \u201cdemocracy\u201d not because it was done by the German national legislature but because it was done by an \u201cindependent\u201d expert agency motivated to defend the \u201crule of law.\u201d Stateside, even stalwart centrists like David Brooks now insist we are all either in the Resistance or abetting the road to fascism. <\/p>\n In the struggles of contemporary liberals against right-wing populism, the rule of law is presented as the sum of all good things, a principle no right-thinking person could either limit or qualify. Yet the rule of law is but one among many virtues a legal system might embody. It is not the same thing as justice, or legal equality, or human rights. It is certainly not a synonym for democracy. In overruling the acts of legislatures, in fact, the rule of law at times turns out to be positively anti-democratic. Is the rule of law simply an empty slogan fit only for the editorial page? Does it have any content beyond \u201cHurrah for this!\u201d and \u201cDown with that!\u201d?<\/p>\n Advocates of the rule of law often define the concept as a set of political ideals around the limitation of the exercise of power, in particular demands for the exercise of reason, the achievement of predictability, and the elimination of arbitrariness in the law. Thus an American federal judge ruled in February that the Trump administration may not enforce its executive order against DEI programs because the order\u2019s vagueness \u201cinvites arbitrary and discriminatory enforcement.\u201d Likewise, Harvard University has sued the Trump administration for acting in an \u201carbitrary and capricious manner\u201d by freezing billions of dollars in federal funding to all parts of the university system.<\/p>\n Rule of law advocates also define the concept by the doctrine of the separation of powers, with particular emphasis on judicial independence. The European Union long targeted the Polish government precisely for its supposed violations of judicial independence and the separation of powers. In December, Justice John Roberts strenuously defended \u201cthe independence of judges on which the rule of law depends.\u201d In March, Justice Sonia Sotomayor equated the rule of law with \u201cfearlessly independent\u201d courts. Responding to Trump administration calls to impeach federal judges who have ruled against it, the American Bar Association proclaimed, \u201cThe ABA will defend our courts because we support the rule of law.\u201d<\/p>\n This all sounds very high-minded. Certainly everyone wants a court system with a basic degree of autonomy to render decisions on specific cases free from executive, legislative, or societal pressure. But who ultimately decides the definitions of \u201carbitrary,\u201d \u201ccapricious,\u201d and \u201creason\u201d? Who decides how much judicial independence is sufficient? Judges do. The most elevated meaning of the rule of law comes when it is juxtaposed to its opposite, the rule of men. Yet excepting only when we enforce the law upon ourselves, the law always requires particular men (and women) to interpret it and to enforce it. Even under the rule of law, we are necessarily subject to the rule of men. The difference is that these men\u2014judges\u2014rule us in the name of the law.<\/p>\n This can quickly morph into judicial supremacy, a condition in which the highest judges are themselves the law. In a common-law system such as the United States, courts make law all the time through the normal process of judicial review. Political actors know as much and craft their lawsuits precisely to evade congress and legislate through the judiciary. Can\u2019t overturn state bans on contraception and abortion? Invent a new right to privacy through Griswold and Roe. Can\u2019t convince the state to allow you to own a handgun? Lock in an individual constitutional right to bear arms through Heller. Can\u2019t get national legislation incorporating gender identity in US civil-rights law? Have the Supreme Court do it through Bostock.<\/p>\n In debating the requirements for the rule of law, advocates always mention the role of courts in balancing the power of both executives and legislators. But who balances the power of judges? What is the check on their power?<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":" There are serious criticisms to make about this new Trump administration, but repeating incantations about democracy and free trade and the rule of law are not serious critiques. Notes Wikipedia: “An incantation, spell, charm, enchantment, or bewitchery is a magical … Continue reading