The debate about Trump and his understanding of the Constitution will probably rage throughout his presidency. Here’s one take on it.
News such as the recent federal court decision against President Donald Trump’s proposed travel ban and James Comey’s public Senate testimony serve as occasions for outrage among critics about the president’s disrespect for “the rule of law.”
But what is the rule of law?
As a lawyer and political scientist who studies this question in diverse Arab countries and elsewhere, I can affirm that the answer is not obvious. The rule of law means a variety of things within and across countries. And they are not always consistent.
This helps make sense of the fact that Trump and some of his supporters may actually endorse one version of the rule of law. It just happens to be a version more dominant in nondemocratic political systems.
Meanings of the rule of law
Like “democracy” or “equality,” the rule of law is a popular ideal, but not always a clear one. For this reason, United Nations officials have tried to define it. Prominent organizations like the World Bank have measured it through basic indices, or multifaceted criteria, such as civil rights, order and security, constraints on government power and absence of corruption.
Yet using an appealing phrase to describe different social phenomena can have real political consequences.
The “rule of law” has at least two broad definitions that exist in obvious tension.
One is a dominant dogma of American political history, as conveyed by Founding Father John Adams’ succinct phrase: “a government of laws, not men.” The idea here is basic. Government leaders, like all citizens, should not be above the law, but bound by it. This means, for example, that a U.S. senator who extorts money is no more immune to being charged with this crime than an ordinary American.
A second possible meaning, in tension with the first one but present in democracies nonetheless, is that law ensures that people obey government.
Law over leaders
Let’s first consider the rule of law as John Adams and the U.S. Constitution’s framers defined it.
The U.S. Constitution and courts’ mandate to review specific laws define the rule of law as a value and a set of procedures that provide legal protection to all Americans. The framers of the Constitution stressed in Federalist 78 the need for judges with autonomy from politics who could defend fundamental citizen rights. Equality under the law was popularized as a foundation of the rule of law in the wider English-speaking world by the 19th century.
This has not meant that all Americans, in fact, enjoy equal legal resources. Nor has it prevented powerful individuals or groups from using laws to their advantage. Nonetheless, institutions that enforce the idea that legal rules and procedures bind everyone, including leaders, are central to the U.S. and other countries. The expectation that rules will be applied to everyone also underpins the contemporary global legal system.
The rule of law, understood as laws over leaders, takes on added significance in the U.S. Here, a comparatively large proportion of people become lawyers. In turn, many lawyers become bureaucrats and politicians. American leaders with legal training are educated to focus on specific rules, procedures and close reading of legal texts.
Because of this, many government officials and members of the private and public-interest law firms who rotate in and out of government care about details of legal rules, procedures and transparency. A leader like Trump, whose tweets denigrate the neutrality of American judges, who refuses to submit to the same expectations of his peers or other citizens and who appears to interfere with an important legal inquiry, raises the hackles of other lawyers and politicians.
Many Americans who are trained in the importance of the autonomy of laws will mistrust a leader who seems not to respect such autonomy. Thus, it was not surprising that as soon as Trump became president, lawyers mobilized against an executive attitude that demeans their sense of the rule of law.
Law and order
Yet, Trump and some supporters appear to embrace a different understanding of the rule of law. The president has in fact stated his dedication to the rule of law. Some argue that his leadership on certain issues, such as enforcing immigration law, has confirmed this commitment. This is not merely a case of alternative media. It underscores the importance of multiple meanings for the rule of law.
Trump seems to view the rule of law as deference to political authority and efficient law enforcement. This includes institutions that execute laws, which might be summarized as “cops, courts, and clinks” (jails).
Part of candidate Trump’s appeal was his repeated charge that people in the U.S. who broke the law, particularly undocumented immigrants, were policed inadequately. Since taking office, he has stressed enhancing police power and loyalty to authority, especially his own.
This is hardly a fringe meaning of the rule of law. Efficient enforcement and state order are critical components of a legal system that also embraces citizens’ rights and protections. Yet these two key facets of the rule of law don’t always sit together well. Strong policing can accompany denial of equal protection to suspected criminals, patterns of brutality and racism. Leaders’ natural interest in strong and efficient law enforcement and citizen loyalty can override their legal accountability.
Different political systems strike different balances with this tension. This helps explain Trump’s fondness for presidential immunity from most criminal prosecution and some conflict-of-interest standards. This and his impatience with protest and criticism against him appear to show that the new president cares about law as a tool to bolster his authority rather than to enhance ordinary Americans’ rights. The world is certainly seeing a trend toward leaders like Egypt’s President Sisi and Turkey’s President Erdogan who wish to control law, rather than subordinate themselves to it.
Trump, and Americans who consider him a strong leader, likely believe in the rule of law, as they understand it. The controversy among many lawyers is that the level to which the new administration elevates efficiency, enforcement and executive privilege tramples their dominant sense of the rule of law as government by laws, not people.
Growing conflicts between the Trump administration and a range of lawyers, judges and activists stem, in part, from each side invoking real, contestable concepts of the rule of law.
Naturally, even if Trump and some supporters share a genuine belief in the rule of law as enforcement and order, this does not justify acts he may have taken that violate American laws. It should nevertheless serve as a reminder that using complex concepts like the rule of law without context or nuance may make it much harder to understand important and genuine underlying political disagreements.
Indeed, the world may be witnessing less a clear rejection of democracy as a more subtle move by many elected leaders to concentrate power in authoritarian ways. With Trump’s occasional appreciation of leaders with strong power, it becomes particularly important to clarify what he means by the rule of law. That way, each of us can judge whether his legal values are the same as our own.
Featured image: DonkeyHotey (CC)