The rule of law obtains in fewer and fewer arenas of American life and for thinner and thinner strata of the population. It’s receding. Rule of law doesn’t leave behind a vacuum as it recedes, though. We have various replacement schemes already taking hold: rule of corporate interest, rule of the bureaucrat, rule of mob outrage, rule of judicial fiat, executive order, selective enforcement, and so on. The sites at which these schemes contend are chaotic. Sometimes these upheavals produce dramatic blooms of jurdicial topsy-turviness. Our Internal Revenue Service, for instance, decides to adhere to even the most microscopic detail of non-profit regulations when dealing with political undesirables. It then turns around, destroys evidence, and flaunts Congressional subpoenas in the ensuing investigation of that malfeasance. The elasticity of the law itself is striking there. Sometimes the evidence of juridical disequilibrium is less sensational—just the slow accretion city ordinances that determine how large your detached shed can be on the one hand and the quiet understanding that your local police department will never be able to rein in gang warfare on the other.
The term for this sort of situation, where laws apply to certain segments of the society but not to others, is “anarcho-tyranny.” It’s been floating around certain conservative circles for quite a while now, and I have no beef with the term, nor the critique of governmental mismanagement it comes attached to. It’s smart analysis.
What I would add is that, in the context of disintegrating rule of law, pounding your fists on the table and shouting about the Constitution doesn’t represent a viable way forward. You don’t check this particular species of lawlessness by reciting the laws at higher and higher volumes. The various entities involved understand the law just fine. They’re at least familiar with it. Maybe they even taught a course in constitutional law at the University of Chicago Law School. Who knows? At any rate, they’re not acting out of ignorance, which your patient explanation of the finer points of our founding documents is going to dispel. Agenda moves the chains, not error.
See, this is one of those psychological vulnerabilities that US conservatives, yours truly included, exhibit from time to time. We’re blind to terms of our predicament. I don’t know why exactly. Perhaps conservatives value conformity and team-play more highly than our counterparts on the left, who seem by and large interested in various flavors of hyper-individualism. Or perhaps it’s that evil old “authoritarian personality” rearing its head again, a diagnosis suggesting that people raised in traditional families tend to have a more obedient relationship to authority (the horror!) than those otherwise brought up. Or maybe that Haidt guy I hear so much about is correct. Maybe those of us on the right treat betrayal and subversion as foundational moral trangressions, whereas our progressive friends don’t.
Whatever the reason, middle American conservatives often imagine shared goals and community where there are none. We often behave as if we’re in a gentleman’s disagreement about the rules of the game, like we’re simply remonstrating with the referee about whether a ball landed fair or foul. It’s much closer to the truth, though, that the other side has already emptied the dugouts on us and kneecapped our pitcher with a bat. We’re engaged in tribal conflict and some of our opponents in this conflict well and truly hate us. This is a point that I return to often because, even as I assent to it intellectually, some reflex in me rebels. It’s hard to accept that your own politicians will throw you to the wolves in order to ensure re-election, or even just to protect their ideological bona fides. But they most assuredly will. They will. Just ask your cousins across the pond in Rotherham if they will.
None of this is to say that the Constitution is entirely irrelevant to contemporary politics. I don’t think that American legal traditions are fundamentally wrong-headed. I don’t think that the Constitution was drafted by petty or short-sighted men. I just think that the relatively homogenous nation, the “moral and religious people” that John Adams claimed the Constitution was fit to govern, has gone the way of all flesh and that we need to adjust accordingly. We won’t achieve much traction by simply insisting that everyone shape up and start listening to our forefathers once again. There are millions upon millions of people in America who don’t even share that lineage.
No, in fact, accepting that the Constitution is, in practice, a dead letter frees us up to draw on it in more beneficial ways. There is insight to be gleaned from it, even if we can no longer refer to it as a rulebook that guides the play on the field. Take that much belabored Second Amendment, for instance. The debates on it are contentious; the sides entrenched. The interpretations of it are legion, often contradictory. But to the serious conservative in these dread latter days of an increasingly unstable and overreaching government, the wisdom that it imparts is valuable independent of all that noise. It’s a truth handed down to us. The surest check against tyranny (or anarcho-tyranny as the case may be) is the technology—the armaments themselves, of course, but more importantly the social organization necessary to put them to effective use—to conduct war against it.
It’s relevant. It’s plain speech. It’s true. No one’s looking out for our interests anymore. We’re going to have to look after them ourselves.