The Constitution and the Rule of Law
The late Justice Scalia was well-known for a number of important judicial commitments—to Constitutional originalism, to a permissive account of the Establishment Clause, to a skeptical approach to executive criminal justice power. But his most important commitment was to the rule of law, a central constitutional ideal to which he routinely appealed (and about which he published a famous academic article, “The Rule of Law as a Law of Rules“).
The rule of law is traditionally contrasted to “the rule of men.” The contrast captures the difference between societies in which the awesome power of governments to send men and women with weapons to order their people about is governed by general rules, laid down in advance, and enforceable against government officials who would abuse their power, and societies in which government violence is deployed at the whim of powerful officials without such constraints.
At a minimum, the rule of law requires that public officials obey the substance of the law as well as respect the procedures embedded in the law, such as the judgment of courts. They must also respect the right of the people to turn to such procedures in order to defend themselves from the might of the government. And the rule of law requires that public officials not be endowed with the open-ended authorization to exercise force and violence against ordinary people in accordance with their mere wills.
Understood that way, the rule of law is critical to the maintenance of core American institutions and values: only official obedience to the law protects things like free speech from officials who want to censor their opponents, the Fourth Amendment from those who would want to snoop on their enemies, and both private property and the public purse against rapacious officials who wish to enrich themselves and their friends.
Democracy itself is closely intertwined with the rule of law: the people rule only through the laws of their democratically accountable representatives, and can only select their leaders when the laws governing the political system are respected. To defend the rule of law is to defend our Constitutional democracy.
The election of Donald Trump raises serious worries about the future of the rule of law in the United States. Many an authoritarian has taken power from a democratic state under the banner of populist nationalism, and Trump’s association with illiberal and antidemocratic individuals and groups (from Vladimir Putin to Steve Bannon and the “alt-right”) has raised the worry that Trump does not respect the basic norms of our Constitutional order.
How Legal Orders Collapse
Some reflections on the rise of authoritarians of the recent—as well as distant—past can give us a clue about how worried we should be. The destruction of legal checks on political power tends to follow a well-established playbook dictated by the strategic constraints on powerful executives.
Of course, we’re familiar with the truly dramatic techniques of authoritarians that we saw so often in the twentieth century—scapegoating of racial and religious minorities, exploitation of real or fake attacks to acquire emergency powers, and crackdowns on dissent. I’ll leave those aside, and also leave aside the short-term economic measures used by populist authoritarians like Hugo Chavez to buy popularity at the cost of long-term economic disaster. Instead, I’ll describe some more subtle tactics rooted in the idea that the legal constraints on the power of political leaders are enforced by people. A leader who would destroy the law must therefore undermine the capacity or incentives of his opponents to act in a coordinated fashion to oppose him.
Specifically, a political leader has to undermine two key sites of opposition.
First, a leader has to undermine the capacity of the population at large to collectively resist his illegal acts, by reducing the capacity of the public to engage in mass coordinated action (which can range from voting, to economic resistance and protest, to outright rebellion) against him.
Second, a leader has to undermine the capacity or incentive of mid-level officials and elites, the sorts of people who control things like tax revenue and the transmission of orders to military units, to oppose him, primarily by declining to carry out his wishes. (The reader is advised here to consult the brilliant work of economist Avner Greif on administrative power.)
In order for the general public to act collectively in an effort to hold a political leader to the law, they require a number of things.
First, they need widespread public trust in one another—particularly, in their shared commitment to a commonly accepted set of constitutional principles. Resisting a powerful political leader, especially one who might toss aside the law to retaliate against his critics, is a dangerous act that people of ordinary courage will only engage in when they think that they have a critical mass of people who agree with them. (The economist Timur Kuran has published groundbreaking scholarship on “preference falsification,” which uses this insight to explain surprise rebellions like the Arab Spring and the 1989 fall of Eastern European Communist governments.)
Second, they require coordinating institutions like a free press and an independent judiciary to give them reliable information about what their leaders are doing, as well as to send public signals about what the lines are by settling disputed questions of law. The U.S. Supreme Court, for example, is a strong defender of the rule of law in the United States largely because of its prestige and power to, in Justice Marshall’s words, “say what the law is,” thereby allowing the people to effectively coordinate to punish their political leaders for ignoring the law.
Third, the people, of course, require free and credible elections to peacefully remove leaders they reject and coordinate resistance to leaders who stay in office illegally.
Would-be authoritarians throughout history have established some well-trodden paths to undermine the capacity of the masses against them. First, they’ve used mob violence and intimidation to undermine ordinary people’s trust in one another. We have records of this strategy and its effects from as early as Thucydides’s report of a coup d’etat by an Athenian oligarchy in the fifth century B.C. In the last century, prominent examples range from Hitler’s brownshirts to Robert Mugabe’s use of gangs of war veterans as enforcers. In all cases, these techniques serve the dual purpose of intimidating opponents of the regime with the threat of immediate violence, and vividly demonstrating to those opponents that their fellow citizens are not themselves willing to help them resist.
Would-be authoritarians have also assiduously undermined the courts and other coordinating institutions. Again, this is a tactic as old as Classical Athens, where both fifth-century oligarchic coups started right off by abolishing the graphe paranomon, the legal procedure designed to subject illegal political acts to legal scrutiny. In 2004, Hugo Chavez packed Venezuela’s Supreme Court with twelve extra justices. Slobodan Milošević carefully controlled the Serbian mass media and, like Vladimir Putin, allegedly arranged the assassination or attempted assassination of opposition journalists. Today, the Polish ruling party is gutting the Constitutional Court by manipulating its membership, rules of procedure, and ability to enforce its orders, leading the court’s outgoing president to say that Poland is on the “road to autocracy.”
How about mid-level officials and elites? There, the authoritarian often turns to similar strategies. One element is a repeat strategy for the masses: bribery, especially with stolen money. Mobutu Sese Seko perfected the technique with his “Big Vegetables,” elites who helped Seko run Zaire in exchange for massive cuts of the nation’s wealth. Elite economic privileges, such as the infamous special shops, for the nomenklatura in the Soviet Union were another key example of this strategy. In order to consolidate control over the economy and keep the bribes coming, such rulers often seize control of key elements of the economy, as did Seko (as well as, of course, the Communist dictators). In addition to purchasing loyalty, these bribes also reinforce that loyalty by implicating the bribed in public corruption, and subjecting them to the threat of later exposure or politically motivated prosecution.
Another common move is to replace officials who are loyal to the state or to the constitutional order with officials that are loyal to the authoritarian personally. Sometimes this strategy goes far beyond just replacing the heads of the security services and the bureaucracy, and involves the creation of entire parallel institutions, or the blurring of the boundaries between private security forces, mobs in support of the leader and official institutions. For this technique, the standard has been set by Hitler’s SA and SS, and by Mao’s Red Guards, but it is very widely used. The oldest example of which I’m aware again comes from Classical Athens, with the Thirty Tyrants, who started off their regime by surrounding themselves with whip-bearing personal guards. One of the more prominent recent examples was Papa Doc Duvalier’s Tonton Macoutes.
Donald Trump’s Red Flags
Donald Trump’s tactics have displayed a disturbing similarity to some of these historical precedents.
Most alarming is the recent revelation that at least some Customs and Border Protection (CBP) officials declined to obey the recent court orders forbidding the deportation of visa-holders detained at the border pursuant to Trump’s January 27 executive order barring all entry from citizens of seven Muslim-majority nations. In particular, there have been reports that CBP officials at Dulles Airport are refusing to allow legal permanent resident detainees access to legal counsel, in direct violation of an order from Judge Leonie M. Brinkema of the United States District Court for the Eastern District of Virginia.
If credible evidence is discovered to suggest that this disobedience was ordered by the White House, then the crisis is already upon us, and mass resistance by the bureaucracy as well as by the public, combined with immediate impeachment by Congress, is our only hope. However, there is some reason to believe that this disobedience was the work of rogue ideological CBP agents (the CBP union strongly supported Trump in the election and have generally supported his positions on immigration)—the Department of Homeland Security has issued a (somewhat ambiguous) statement claiming that it intends to obey court orders. In that case, the Republic is in less immediate danger, but it is vital that the disobedient officials be held in contempt and duly punished, lest those who are aligned with Trump’s goals come to believe that they enjoy impunity from the legal system. The CBP union and the White House, however, may well have been acting in concert. It may not be a coincidence that right before issuing the order Trump got rid of the former Border Patrol chief, who had been hotly opposed by the union, and shortly thereafter replaced him with a much more union-friendly leader.)
In general, people stopped at the border are unusually vulnerable to targeted executive action. The courts have held that the federal government has extremely broad powers at points of entry to the United States. Beyond Trump’s selective seven-country “Muslim ban,” we also have reports that some people have already been denied entry for their political opposition to Trump: British and Canadian protesters en route to the January 21 Women’s March have reported being asked “Are you anti- or pro-Trump?” and being turned away on reporting the former. In view of the fact that immigration detentions are notoriously secretive, there is real reason to worry that, should the Trump regime turn repressive, even dissident U.S. citizens could be targeted at the border and detained indefinitely on the pretext of CBP “attempts to verify” their citizenship status.
Also highly troubling is the fact that Trump has maintained and apparently plans to continue to maintain a private personal security force independent of the Secret Service—the same security force that policed his rallies, and has been accused of excessive force as well as racial profiling. (It is striking that the SA, Hitler’s brownshirts, began in part as a security force for Nazi party meetings.) It is already being sued for allegedly violently interfering with political protest. Yet Trump’s chief private bodyguard has been named Director of Oval Office Operations, and there are no indications that the private security force will be disbanded.
This force is unaccountable to the usual political and legal checks and balances—Congress cannot cut its budget or audit its records, it may not count as a government actor for purposes of Constitutional challenges to his operations, like racial discrimination or retaliation for political speech. I would argue that the security force actually has become a government agency for Constitutional purposes, but there’s no good way to predict how a court would respond to this argument. This organization will become more dangerous if Trump expands it (ostensibly to support the burdensome travel schedule of a President, for example), or, truly terrifyingly, if he gives it access to intelligence information from the United States’ extensive surveillance apparatus.
Reinforcing worries about the undermining of the professionalism of the security services are Trump’s most recent moves to reshuffle the National Security Council. On January 28, Trump removed the Director of National Intelligence and the Chairman of the Joint Chiefs of staff from the NSC “principals committee” and replaced them with Stephen Bannon. This raises the worrying risk that intelligence information will be channeled to political operatives, and that political operatives with greater loyalty to Trump than to the Constitution will be exercising unchecked authority over the use of America’s military and intelligence apparatus.
Equally alarming are Trump’s efforts to undermine the free press. It doesn’t seem like an exaggeration to say that millions of his supporters completely distrust the media, and are unlikely to believe reporting on any of his misconduct. And this appears to be a conscious strategy of Trump’s, who has been attacking the media in speeches and on Twitter, who put the press in a pen at his rallies to be abused by the attending mobs, and who has installed the CEO of the leading far-right “news” site in the West Wing, ready to feed the house interpretation of his actions directly to his supporters, no independent input required. This, of course, is Bannon again, who has also described the media as the “opposition party.”
No catalog of Trump’s danger to the free press can omit his evident disregard for the First Amendment. Trump has threatened to “loosen up the libel laws,” to allow suits against the press, and his campaign manager made thinly veiled libel threats against no less than the outgoing Senate Minority Leader. He has suggested not only punishment but the loss of citizenship for (constitutionally protected) flag-burners. And he has encouraged and praised violent responses by his supporters to dissent. These facts are alarming on their own account, they are even more terrifying in the context of the hostility he has displayed and encouraged toward the press. In particular, the use of “loosened” libel laws is a common recent tactic of semi-authoritarian leaders to intimidate press critics of their regimes, used, for example, in South Korea and Singapore.
As yet, Trump’s efforts to undermine the other main pillar of coordinated mass resistance to lawless officialdom, the courts, have been limited to his absurd allegation that Judge Curiel was biased against him because of the judge’s ethnicity. Should Trump turn his attentions to the courts in earnest, we will have still more reason to be scared. As noted above, the most dangerous prospect is that Trump might just ignore judicial rulings against his regime. However, what Trump has spared the judicial process he has inflicted in full force on the democratic process, first insisting that the election would be “rigged” by mysterious forces, then refusing during the campaign to commit to accepting any result in which he lost, then claiming after the election that millions of fraudulent votes had been cast against him, and finally claiming to be planning an “investigation” into these alleged fraudulent votes.
The electoral process is another important coordinating institution for mass resistance to would-be autocrats. Canceling or ignoring the results of a free election is a key signal to a populace that its rulers are throwing aside the Constitutional order and need to be aggressively resisted. (The work of political scientist James Fearon contains a classic explanation of this dynamic.) In conjunction with Trump’s attacks on the press, it is difficult to avoid the conclusion that he aims to make it as difficult as possible to believe the outcome of any election that goes against him—which, intentionally or unintentionally, will also make it as difficult as possible for the public to use ignoring the results of such an election as a signal to coordinate resistance.
Finally, the imminent integration between Trump’s business enterprises (notwithstanding the ludicrous suggestion that letting his children run them will prevent that integration) and his official position is a serious danger. Let us be clear: the danger does not come from the likelihood that Trump will personally enrich himself and his family. The public treasury and economy can handle a little petty theft in the form of, e.g., directing federal business to Trump’s enterprises or using government information and foreign influence to favor those enterprises. More worrying is that a president who controls a multibillion dollar empire, which might be allowed to control a substantial portion of public money in any number of ways (e.g., as contractors), can use that empire to channel financial resources directly to those whose support he needs without being subject to the kind of oversight that applies to the direct use of the public treasury. Imagine, for example, public contracts awarded to the Trump empire, and then quietly subcontracted to companies controlled by those whose influence Trump wishes to purchase.
How the Constitution Might Fall
The beginning of the creation of mechanisms to deliver violence outside the usual bureaucratic and legal constraints should raise the most immediate and dire alarm. Consider the private security forces noted above, Trump’s encouragement of violence by his supporters at his rallies, his suggestion that “second amendment people” might stop his opponent, and the variety of independent acts of violence or threatened violence conducted by his supporters (including racial hate crimes, the armed patrolling of at least two polling places, and things like the “pizzagate” armed restaurant invasion). When we combine this with Trump’s scapegoating of Muslims and Mexicans, horrifying scenarios begin to look very realistic.
Here’s one all-too-plausible scenario. A terrorist attack of some kind occurs. Trump, as president, blames it on jihadist infiltrators, and suggests, over Twitter, that armed citizens need to organize for “community defense.” At the same time, the borders are sealed, and many, including U.S. citizens, find themselves indefinitely detained at points of entry with no access to counsel.
Following his suggestion, armed bands of Trump supporters begin patrolling America’s streets, carrying out acts of violence against Muslims, Mexicans, and outspoken critics of the regime. (Lest this sound unprecedented in American history, let us recall the reign of terror perpetrated by the Ku Klux Klan in the Jim Crow South ran along similar lines.) Initially, not many people participate in these gangs, but enough participate to carry out a substantial number of salient attacks and create a nationwide atmosphere of fear.
Nobody can prove that their acts are coordinated from above but those in the know believe that Trump’s personal security force has been suggesting targets to local leaders and passing information from the federal intelligence apparatus to them. Independent media reports on suspicion and evidence of such coordination are ignored or dismissed as liberal propaganda, while citizens increasingly turn to Trump’s house media (Brietbart et. al.) as the only outlets with any real access to information about his activities.
As the armed bands become more organized and their activities become more frequent, their targets become more prominent. The home of a federal judge who ruled against racial profiling by the regime is firebombed, and the FBI, under the control of Trump cronies, conducts a superficial investigation and declares the crime unsolvable. Come the next election, similar violence is carried out against the opposition party—campaign workers are attacked, voters are intimidated, and this, plus the discursive dominance of his house media channels, is enough to swing Trump’s reelection and the election of officials who are loyal to him throughout the political system.
All the while, the loyalty of officials in key positions in the legal and military apparatus is maintained by channeling public resources to them through the Trump financial empire, which by this point controls key federal contracts and is immune from public accountability. The independent press tries to report on this too, but is stymied by lack of information, ignored by the public, and eventually met with violence.
Exit constitutional democracy, stage right.
How to Prevent It
I am not saying that the administration is plotting anything like this. However, given Trump’s pattern of behavior, and its striking resemblance to authoritarian precedent, it would be imprudent and irresponsible not to consider the possibility that something like this could come to pass. So let us assume, in line with the precautionary principle, that Donald Trump either intends to ignore the Constitution and the rule of law, or will be impulsively motivated (or manipulated by the likes of Bannon) to do so. In order to stop it, the discussion above suggests two general principles.
- First, we must strengthen the tools that the public at large can use to coordinate resistance to illegal government activity as well as private antisocial behavior motivated by Trump’s interests.
- Second, we must deprive Trump, as far as possible, of ways to deliver money to his friends or violence to his enemies independent of ordinary government institutions and public oversight.
The first and most important tool to resist creeping authoritarianism is to refuse to succumb to preference falsification—to the impulse to conceal opposition to the administration out of fear of retribution. Opponents of the regime must have the courage to ignore the threats from pro-Trump thugs and motivated law-enforcement abuses now, when they’re relatively mild. A visible and loud opposition is self-reinforcing. By communicating anti-regime preferences, opponents signal that other people who might oppose the regime will have allies, and also signal that those who would engage in antisocial behavior in support of the regime cannot rely on the silent support or acquiescence of their communities. In this vein, the sudden mass protests at airports as well as aggressive widespread action by volunteer lawyers in defense of executive order detainees is very heartening.
Similarly, we must aggressively use the institutions of liberal democracy that we do control to sanction antisocial behavior. Jurisdictions controlled by opponents of Trump must make the investigation and punishment of hate-crimes, alt-right harassment, and similar behaviors a top priority—those who would engage in violence, or criminal activity that is a precursor to violence (stalking, hacking, doxxing, etc.) against opponents of the regime must instantly learn that they cannot act with impunity, and those who might otherwise be intimidated by the prospect of these acts need to learn that they will be protected.
The thing about the dispersed and coordinated resistance to political violence, hate crimes, and government overreaching is that it gets stronger with practice. Resistance communicates to defenders of democracy that they too can safely resist, and communicates to enemies of democracy that they cannot safely attack.
Relatedly, we must work harder to rebuild our strong cross-ideological civil society. On an individual basis, leftists and libertarians should show up at things like events sponsored by conservative churches, and conservatives should be more eagerly welcomed in (again) the universities, in the mainstream media, and other cultural and social organizations dominated by non-conservatives. Social bonds facilitated by civil society are a key ingredient in building interpersonal trust, and coordinated opposition to anti-Constitutional acts by the Trump administration or to private terror by his allies in the “alt-right” will require cross-ideological trust between conservatives of good faith and leftists and libertarians.
We must also build independent media organizations that can be credible to people who may not be Trump supporters, but who share the suspicion of his supporters toward existing institutions. Tragically, venerable sources of journalism like the New York Times and the Washington Post may already be a lost cause. It is hard to see a path forward in which Trump’s core constituencies will believe any negative information about his administration communicated through those channels. However, there may be more hope for traditionally editorially conservative outlets (like the Wall Street Journal), or for new independent and electronic media outlets. We should direct funding and other support to those.
Similarly, we should make vigorous use of existing transparency and anti-corruption institutions while they exist. It will take time for institutions like the GAO, the Freedom of Information Act, and the Congressional subpoena process to be rendered ineffective. In the meantime, we should be using these tools to demand and publish information, particularly about financial transactions involving Trump, his organizations, and his allies. We should also be downloading all available open government data online and storing it in offshore servers, ideally with “a clear chain of custody.” We should file many FOIA requests and lawsuits, pour money into investigations, use modern forensic, communication, and visualization techniques to trace the flow of public money to Trump, his companies, and his political allies. Expose and hound out of office the first and biggest corrupted officials we can find.
The longer we can threaten exposure for those who would take public money in exchange for personal loyalty to Donald Trump, the greater our chances of holding onto the rule of law.
Defenders of democracy should focus political advocacy on a few key nonpartisan areas. Trump’s business enterprises and private security forces are two nonpartisan issues of extreme importance to the rule of law. Congressional advocacy efforts should be focused in the first instance on the passage of laws automatically divesting the President and his immediate family of outside business interests, and forbidding the President from having any armed employees who are not an official organization of the Federal government. Such laws are a very good idea at any rate, aside from the immediate threat. It is obviously mad to allow an incredibly powerful chief executive to be in a position to draw on private dollars and guns in addition to public ones.
Secondary issues of high importance with potential broad appeal include anti-corruption measures that also serve as anti-tyranny measures. Two immediate examples: legislation subjecting the records of private government contractors to greater scrutiny, and more aggressive merit-based “civil service”-style job protections for high-level bureaucrats and military officials.
All of this may prove unnecessary. Perhaps those of us who are alarmed by what we see as signs of authoritarianism are reading too much danger into the combination of radical policy change and Trump’s inexperience with the norms and techniques of ordinary governance. For the sake of the Republic, I hope that optimistic view is correct.
However, the rule of law is too important to satisfy ourselves with optimism. States in which powerful officials can ignore the law tend to be poorer, less free, and less equal. Democracy itself depends on our ability to trust that our officials will keep to the laws laid down by the representatives of the people and the Constitution that protects their participatory rights. Because of the paramount importance of the rule of law, the smallest sign that the most powerful official in the land poses a threat to it should lead to a sustained and vigorous resistance.
Unfortunately, we have much more than a small sign. We have a president who maintains a private armed force, who has sidelined the politically accountable security services, who has perpetuated frivolous allegations of multimillion-perpetrator voter fraud in an election he won, who has engaged in extended ethno-national and religious scapegoating, who has encouraged violence from his supporters against his opponents, who has threatened to imprison his electoral opponent, and who happens to be a billionaire with countless undisclosed financial entanglements and obscure resources. He may have already ordered executive branch officials to disobey court orders. At the very least, subordinate officials have disobeyed the courts in the name of his prior orders. The time to act is now, while we still can.
Paul Gowder is Associate Professor of Law at the University of Iowa, where he also holds courtesy appointments in the Departments of Political Science and Philosophy. He is author of The Rule Law in the Real World.