FacebookTwitterRedditEmail

Restoring the Rule of Law

Tomorrow, September 17, is the 221st anniversary of the day in 1787 when 39 members of the Constitutional Convention signed the Constitution in Philadelphia. It is a sad fact as we approach that anniversary that for the past seven and a half years, and especially since 9/11, the Bush Administration has treated the Constitution and the rule of law with a disrespect never before seen in the history of this country.

By now, the public can be excused for being almost numb to new revelations of government wrongdoing and overreaching. The catalogue is breathtaking, even when immensely complicated and far reaching programs and events are reduced to simple catch phrases: torture, Guantanamo, ignoring the Geneva Conventions, warrantless wiretapping, data mining, destruction of emails, U.S. Attorney firings, stonewalling of congressional oversight, abuse of the state secrets doctrine and executive privilege, secret abrogation of executive orders, signing statements. This is a shameful legacy that will haunt our country for years to come.

There can be no dispute that the rule of law is central to our democracy and our system of government. But what does ‘the rule of law’ really mean? Well, as Thomas Paine said in 1776: ‘In America, the law is king.’ That, of course, was a truly revolutionary concept at a time when the King, quite literally, was the law.

Over 200 years later, we still must struggle to fulfill Paine’s simply stated vision. It is not always easy, nor is it something that once done need not be carefully maintained. Justice Frankfurter wrote that law:

is an enveloping and permeating habituation of behavior, reflecting the counsels of reason on the part of those entrusted with power in reconciling the pressures of conflicting interests. Once we conceive ‘the rule of law’ as embracing the whole range of presuppositions on which government is conducted . . ., the relevant question is not, has it been achieved, but, is it conscientiously and systematically pursued.

The post-September 11th period is not, of course, the first time that events have caused great stress for the checks and balances of our system of government. As Berkeley law professors Daniel Farber and Anne Joseph O’Connell write: ‘The greatest constitutional crisis in our history came with the Civil War, which tested the nature of the Union, the scope of presidential power, and the extent of liberty that can survive in war time.’

But as legal scholar Louis Fisher of the Library of Congress notes, President Lincoln pursued a much different approach than our current President when he believed he needed to act in an extra-constitutional manner to save the Union. He acted openly, and sought Congress’s participation and ultimately approval of his actions. According to Dr. Fisher:

[Lincoln] took actions we are all familiar with, including withdrawing funds from the Treasury without an appropriation, calling up the troops, placing a blockade on the South, and suspending the writ of habeas corpus. In ordering those actions, Lincoln never claimed to be acting legally or constitutionally and never argued that Article II somehow allowed him to do what he did. Instead, Lincoln admitted to exceeding the constitutional boundaries of his office and therefore needed the sanction of Congress…. He recognized that the superior lawmaking body was Congress, not the President.

Each era brings its own challenges to the conscientious and systematic pursuit of the rule of law. How the leaders of our government respond to those challenges at the time they occur is, of course, critical. But recognizing that leaders do not always perform perfectly, that not every President is an Abraham Lincoln, the years that follow a crisis are perhaps even more important. And soon, this Administration will be over. So the obvious question is: ‘Where do we go from here?’

I believe that one of the most important things that the next President must do, whoever he may be, is take immediate and concrete steps to restore the rule of law in this country. He must make sure that the excesses of this Administration don’t become so ingrained in our system that they change the very notion of what the law is.

That, of course, is much easier said than done. It’s not simply a matter of a new President saying, ‘Ok, I won’t do that anymore.’ This President’s transgressions are so deep and the damage to our system of government so extensive that a concerted effort from the executive and legislative branches will be needed. And that means the new President will, in some respects, have to go against his institutional interests.

Russell Feingold represents Wisconsin in the US Senate.

Your Ad Here
 

 

 

 

More articles by:
bernie-the-sandernistas-cover-344x550
Weekend Edition
January 24, 2020
Friday - Sunday
Paul Street
A Letter From Iowa
Jim Kavanagh
Aftermath: The Iran War After the Soleimani Assassination
Jeffrey St. Clair
The Camp by the Lake
Chuck Churchill
The Long History of Elite Rule: What Will It Take To End It?
Robert Hunziker
A Climate Time Bomb With Trump’s Name Inscribed
Andrew Levine
Trump: The King
Jess Franklin
Globalizing the War on Indigenous People: Bolsonaro and Modi
James Graham
From Paris, With Tear Gas…
Rob Urie
Why the Primaries Matter
Dan Bacher
Will the Extinction of Delta Smelt Be Governor Gavin Newsom’s Environmental Legacy?
Ramzy Baroud
In the Name of “Israel’s Security”: Retreating US Gives Israel Billions More in Military Funding
Vijay Prashad
What the Right Wing in Latin America Means by Democracy Is Violence
Jeremy Kuzmarov
Biden’s Shameful Foreign Policy Record Extends Well Beyond Iraq
Louis Proyect
Isabel dos Santos and Africa’s Lumpen-Bourgeoisie
Nick Pemberton
AK-46: The Case Against Amy Klobuchar
Evaggelos Vallianatos
Promtheus’ Fire: Climate Change in the Time of Willful Ignorance
Linn Washington Jr.
Waiting for Justice in New Jersey
Ralph Nader
Pelosi’s Choice: Enough for Trump’s Impeachment but not going All Out for Removal
Mike Garrity – Jason Christensen
Don’t Kill 72 Grizzly Bears So Cattle Can Graze on Public Lands
Joseph Natoli
Who’s Speaking?
Kavaljit Singh
The US-China Trade Deal is Mostly Symbolic
Cesar Chelala
The Coronavirus Serious Public Health Threat in China
Nino Pagliccia
Venezuela Must Remain Vigilant and on Guard Against US Hybrid Warfare
Robert Fantina
Impeachment as a Distraction
Courtney Bourgoin
What We Lose When We Lose Wildlife
Mark Ashwill
Why Constructive Criticism of the US is Not Anti-American
Daniel Warner
Charlie Chaplin and Truly Modern Times
Manuel Perez-Rocha
How NAFTA 2.0 Boosts Fossil Fuel Polluters, Particularly in Mexico
Dean Baker
What Minimum Wage Would Be If It Kept Pace With Productivity
Mel Gurtov
India’s Failed Democracy
Thomas Knapp
US v. Sineneng-Smith: Does Immigration Law Trump Free Speech?
Winslow Myers
Turning Point: The new documentary “Coup 53”
Jeff Mackler
U.S. vs. Iran: Which Side are You On?
Sam Pizzigati
Braggadocio in the White House, Carcinogens in Our Neighborhoods
Christopher Brauchli
The Company Trump Keeps
Julian Vigo
Why Student Debt is a Human Rights Issue
Ramzy Baroud
These Chains Will Be Broken
Chris Wright
A Modest Proposal for Socialist Revolution
Thomas Barker
The Slow Death of European Social Democracy: How Corbynism Bucked the Trend
Nicky Reid
It’s Time to Bring the War Home Again
Michelle Valadez
Amy Klobuchar isn’t Green
David Swanson
CNN Poll: Sanders Is The Most Electable
Kollibri terre Sonnenblume
Our Dire Need for “Creative Extremists”—MLK’s “Letter from Birmingham Jail”
Jill Richardson
‘Little Women’ and the American Attitude Toward Poverty
David Yearsley
Watching Star Wars in Berlin
FacebookTwitterRedditEmail