Author’s note: I wrote this post before the Office of the U.S. Attorney for the Southern District of New York moved to dismiss its case against Mayor Eric Adams. Although I know nothing of the particulars of that preceding the move to drop it, I agree wholeheartedly with, and cannot improve on, the principle that Assistant U.S. Attorney Hagan Scotten expressed in his resignation letter: “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.” This principle is a fragment of the broader ethic of responsible and accountable power that the rule of law represents, and I agree with E.P. Thompson’s famous conclusion that this ethic is “an unqualified human good.” It is with that in mind that I want to consider its complexity, and in particular its complex interactions with constitutionalism and democracy.
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The rule of law, as the political theorist Judith Shklar memorably remarked, has long been suspected of being just “a bit of ruling class chatter.” That dismissive suspicion was for many decades a left-wing instinct: talk of the rule of law, Morton Horwitz wrote in 1977, papers over the domination, exploitation, and violence that flow through law, ideologically dissolving class and other hierarchies into the magnificent generalities of due process and formal equality.
Today, however, such skepticism has found a home in the new political right. From this perspective, liberals and progressives calling on the separation of powers, civil service protections, the Administrative Procedure Act, and the post-Watergate impartiality standards of the Department of Justice look like a tired class of elites waving their shibboleths at a rising popular tide. “Excuse me, but before you dismantle my institution and remake the country, you really need to fill out this form. Black ballpoint pen or typewriter, please.”
To grasp what is at issue in the Trump administration’s assertions of executive power, and to judge whether the rule of law helps to assess those assertions, we need to clarify our understanding of its value—and more specifically, how this value relates to democracy and constitutionalism.
In some ways, the current use of the rule of law by the anti-Trump opposition makes perfect sense. In other ways, this use papers over the depth of the problems in all three principles as Americans have practiced them, the gaps through which Trump’s program is now pouring. The rule of law implies a standard higher than politics, an independent measure of legitimacy that, opponents say, Trump’s administration is now breaching. The difficulty is that the rule of law, perhaps paradoxically, depends on politics for its constraining and stabilizing role. This point has lessons for how any opposition committed to the rule of law—and to democracy—should conduct itself.
While Anglophone legal theorists have sometimes treated the rule of law as a relatively thin ideal—the articulation of general, publicly promulgated, reasonably internally consistent rules—most ordinary invocations treat it as much more robust. It is a term used in passionate defense of what people believe to be the essential legitimating features of their legal system. It always implies certain paradigm institutions: high courts, constitutional clauses, legislatures, administrators, the police, and so forth—cast as heroes or villains, depending on context. And it generally comprises two principles. One is the anti-Kafka principle that law should respect people as responsible and autonomous actors—not surprise and harass and torment them. The second is that public officials are just as subject to law as ordinary people. This second idea is captured in the old slogan, “a government of laws, not of men.”
Both are at stake in objections to, say, the summary rearrangement and near-elimination of statutory programs such as USAID, or the threat to fire career FBI agents. On the one hand, at the individual level, the rules of public employment are supposed to hold unless changed: no one is entitled to be an FBI agent, but there is an entitlement not to be dismissed apart from the properly enacted laws. On the other hand, public officials, even—especially?—presidents have to act within the law, or the entire system is veering toward rule by personality and whim rather than rule and procedure.
In an excellent forthcoming article, Jonathan Gould argues that the second idea, which he calls “the rule of public law,” can be broken down into four principles. First, public officials should not act beyond their powers. Second, they should not act with indifference to whether an action is legal—do whatever they can get away with, that is. Third, they should not use public power for the wrong reasons—to benefit a family member, or to punish an enemy. The fourth principle doesn’t concern officials but rather the constitutional structure in which they operate. That system should provide enough checks on official power so to prevent rule by prerogative from emerging. A system lacking such checks may be said to be lack the rule of public law.
I think this tracks a lot of what people mean when they worry about the rule of law. The difficulty (which Gould sees) is that these standards attract sharply competing interpretations. Take the first principle. Everyone would agree, almost tautologically, that officials should not act beyond the limits of their powers. But where are those? The tension brewing as I type is between more established views that the President’s power is hemmed in by statute and a more insurgent vision of extensive executive prerogative. This kind of difference connects with the fourth principle: what structure of power should a system like ours have? In pressing this question, public officials often violate the second principle—that is, they act in ways they know will be denounced as unconstitutional, as bids at mere prerogative, because they are trying to establish those kinds of actions as legitimate.
This is the perennial shape of American constitutional conflict. The present moment has eerie echoes of the New Deal because the broad stakes have the same form (even though the content is very different). New assertions of power, at best arguably lawless, come along with new assertions about what the country needs to be able to do, and which institutions are best able to do it legitimately. The fight is over what the rule of law means.
In this country, a fight over the rule of law ineluctably becomes a fight over constitutional meaning—hence a constitutional crisis. That means it becomes a fight among institutions whose respective roles are endogenous to interpretations of constitutional structure—and whose actions shape that structure: the President versus the courts today (or so it inchoately seems); the President and Congress versus the courts in the New Deal; the President and the courts versus segregationist state governments during the civil rights era; and so forth. It may also involve people in the streets on behalf of one vision or the other.
What about democracy? Elected officials, as well as the people in the street, are making bids to speak as or on behalf of “the People” who, in the Constitution’s own phrasing, authorize it as fundamental law. Without their ratification, its own theory goes, it would be just another political pamphlet from the tumultuous decades after independence. But it has been generations since fundamental constitutional change went through democratic processes, as the Reconstruction Amendments and the seventeenth and nineteenth amendments did. What does democracy have to do with the rule of law today?
Everything, for better and worse. Democracy is itself a rule of law. That is, the conceit that popular decisions govern a country makes the sense it does only because of legally constituted institutions and processes that set out what counts as a collective decision. There is no action called “voting in an election” without a set of artificial institutions, processes, and qualifications. There is no result of an election without an aggregation process—such as the electoral college, which in this century has twice thrown the presidency to the loser of the popular vote. When we speak of democracy, we are talking about actions that are as artificial and as real as a temporary restraining order, a writ of mandamus, or a ruling about the separation of powers. As long as all those involved accept these as solid facts, they are solid. When their authority is pervasively denied, they tend to melt into air. (I didn’t believe this in 2020, when one of my last acts on Twitter, before I deleted my account, was to assert that elections produce very strong political facts, whose reality would effectively force President Trump to leave office when he lost. That seems naïve to me now.)
Democratic publics are the appropriate final arbiters of disputes about constitutional meaning. That is the lesson students of constitutional change have taken from the New Deal and other past crises. An old and vague constitution incorrigibly produces competing answers to the most essential questions, and the answers count, in important ways, as our rule of law. At any time, a settled body of answers to these questions will stabilize them, and they can be parceled out to institutions (judicial decisions, the judgments of the Office of Legal Counsel in the Department of Justice) and norms (presidential self-restraint, non-partisan exercise of prosecutorial discretion). That fabric of principle and practice is what we call a constitutional regime. It always entails a version of the rule of law.
To continue functioning it needs both a degree of elite concurrence, a tacit agreement not to push its boundaries too hard or far, and also a measure of popular support, or at least tolerance. It is always vulnerable to an elite dissident making an open bid for a different way of doing things, and taking that bid to the public. Students of constitutional change have always understood that this is a key part of how fundamental disputes come to crisis, and that public support or disapproval—channeled through the always artificial procedures of democracy itself—is key to how they are resolved.
We seem very close now to a crisis of that sort. But it will go to a public in which the same divisions about constitutional meaning and the content of the rule of law have penetrated into the self-understanding of citizens. Election denialism is both egregious and exemplary. A maximalist friend-enemy understanding of the political landscape, a conviction that the other side cannot rule legitimately given its substantive and constitutional commitments, is the premise of much of the administration’s bid to dismantle what it sees as hostile federal and university programs, bring prosecutors in line with its priorities, and consolidate authority in a president duly elected by a majority of a deeply divided country. And it is, to a considerable degree, a bipartisan sentiment. You do not have to accept a moral equivalence between the administration and its opponents—almost no one does, whatever else they disagree about—to appreciate that this is true. In this kind of situation, it may be that no common standard is possible. Every principle bears a partisan brand.
Talk of a “common standard” may seem idealistic or sentimental. Certainly there is no unanimity in law or politics; if there were, neither law nor politics would be necessary. A lot of legal scholarship in the LPE vein, including mine, has worked to show the conflicts and partisanship behind so-called neutral principles. But that critical disposition has to coexist with—and, I think, should support—an interest in legitimacy. The point of critical work is to clear space for better legitimating principles. And legitimacy cannot be reduced to substantive commitments, “what my side believes is right”: legitimacy addresses the question of why I should accept a legal or political decision I believe is wrong. Legitimacy is the common standard for navigating circumstances in which much is not common, where there are sharp disagreements over values, goals, and means. That is why it is an inescapable concern of both law and politics, which arise precisely because of such clashes.
Both democracy and the rule of law propose standards of legitimacy amid deep and persistent disagreement and conflict. They do so in different ways: the rule of law by addressing people as the subject of rules, democracy by inviting people to be, or imagine themselves as, the authors of the laws that govern them. Each principle is a bid to make the pervasive and often opaque power of the state and the economy less alienating and dangerous.
Democracy and the rule of law need each other. Without the integrity of law, collective decisions are impossible to make and ascertain, and “democracy” becomes just a slogan—so that Elon Musk, speaking on February 12th, can describe his secretive, semi-private incursions into the federal bureaucracy as a mission to save democracy. At the same time, the meaning of “rule of law” in this polity or any other is always a partial distillation of a larger political order, created through democratic contests and sustained or eroded by democratic energy. But fear and enmity can make co-citizens feel intolerable as co-rulers. When this happens, all rule feels like the rule of persons, not of laws. Then democracy and the rule of law can fail together.
I hope in future posts to say something about the political economy that gives rise to this sort of situation and to make some suggestions about how to confront it.
