Rule of Law and Equality
TMcD argues in comments that equality is a fundamental aspect of rule of law. If that's true, though, does that mean that there was no rule of law in the United States until 1954? 1964? The 1970's? (Take your pick.)
Now, of course, there may be degrees of rule of law. But that's not how it's usually used, at least not in politics. It seems to either exist, or not. (I am comfortable with degrees.)
Btw, the whole discussion of stare decisis going on in the Alito hearing is so wrong-headed that it'll make you dumber if you listen to it for too long. And this is not just the Republicans, or just the Democrats, or even Alito's fault. It's all of them. I thought that Schumer almost got there, awhile ago, when he said that judges can disagree about what stare decisis means in a particular case. But if that's so, then why are the Democrats seemingly so obsessed with stare decisis? (Oh, yeah. Roe. The single most important super-duper precedent of all time.)
posted by Number Three @ 6:39 PM
2 Comments:
Em, you're correct. The obvious implication of my argument that rule of law should include a substantive element, over and above the procedural one, is that the "rule of law" is a matter of degrees. For example, I would say that many (maybe even all) Southern states did not have a rule of law in place with regard to blacks prior to the civil rights era. The Mississippi Sovereignty Commission is one especialy good example of how violence, intimidation, and improper surveillance took place, and were indeed empowered, under the cover of law itself. Nonetheless, MS had something resembling a rule of law as it applied to whites with respect to each other. So I'll take MLK over Frances on this point. Interestingly, his argment for civil disobedience recognizes very clearly that rule of law is not simply either/or. If you must disobey law openly, with a willingness to accept the consequences of your disobedience, you honor the law itself as your ideal even when you protest its practical (procedural) reality. This is, in a nutshell, the core advantage that a natural law theory has over a positivist one such as Frances defends.
BTW, I also agree that the debate over stare decisis is just plain stupid, although for a slightly different reason. It should be plain to everyone involved (even the typically gullible Dems) that Alito is a sure vote to overturn Roe. I mean, come on, look at the paper trail. He might as well have a neon hat saying, "Will outlaw abortion for food." We all know why Alito is pretending not to have an opinion--he wants to avoid a filibuster. What I don't know is why anyone else, especially the Dems (though maybe not Specter), pretends this is still an open issue.
As a follow up to my Alito comments, I'd argue that Dems should generally confine themselves to "when did you stop beating your wife" type questions. On the abortion issue, they should simply say, "Based on your extensive record of antiabortion activism, we will assume that you will vote to overturn Roe unless you clearly and unambiguously tell us otherwise." The default position should be the one he's already put on paper. Just stop the charade.
Still, I don't think abortion should be the main line of attack. (Roe was a pretty bad decision, after all, and opposing it on substantive grounds is far from radical, even if it creates some public presumption against you). The main line of attack has to be the fact that Alito believes the Prez is above the law, despite his lying statements to the contrary in the hearings. He's George III and Jefferson Davis rolled into one. Pick the most loathsome authority figure in any given case, and offer them godlike power.
One of the things I've been most struck by in the hearings is how unlikable Alito comes across. He's not just bland, he's repellant: Bill O'Reilly's self-righteous smarm tucked into the personality of a turnip.
Post a Comment
<< Home