With respect to a wide variety of controversies and issues, there is no shortage of rhetoric about the law in the news and social media. Various words and phrases (e.g., constitutional, unconstitutional, illegal, lawless, rule of law, due process) are often invoked in the abstract as supposedly obvious concepts with little or no identifiable reference to where they appear and how they are applied in the United States legal system.
Consider some important legal principles: Due Process. Fairness. Justice. Rule of law. Most people would agree that these principles are good, noble, and worthy. But, agreement that these principles are good, noble, and worthy can be problematic if there is no meaningful agreement or consensus about how such principles are defined, implemented, applied, and maintained.
The meaning, implementation, application, and maintenance of the principles of due process, fairness, justice, and the rule of law should not be considered in the abstract, or only with reference to political rhetoric, a political party’s platform, or perfunctory labels. Rather, consideration of such principles needs to take into account (1) relevant provisions of the United States Constitution, State constitutions, and federal and state laws — including the constitutional and statutory provisions concerning the actions required to enact, amend, supplement, or repeal provisions of constitutional and statutory law, and (2) how those principles are interpreted, implemented, applied, and maintained.
People should beware of assuming there is meaningful agreement or consensus about due process, fairness, justice, or the rule of law merely because other people state they accept and believe in those principles. Instead, people should ask for details — (1) ask for definitions and illustrative examples of what each particular principle means; (2) ask for specifics on how such principles are to be implemented, applied, and maintained; (3) ask how any disagreements about the implementation, application, and maintenance of particular principles are to be addressed and resolved; and (4) ask how the implementation, application, and maintenance of particular principles will be done in a manner that is consistent with relevant provisions of the United States Constitution, State constitutions, and federal and state laws.
I am not saying or suggesting that there can be a final, definitive answer or resolution to the problem of reaching agreement or consensus on the meaning, implementation, application, and maintenance of due process, fairness, justice, and the rule of law. A review of American history shows that opinions about the meaning, implementation, application, and maintenance of those important principles can differ, change and evolve over time. But, the absence of a final, definitive answer about the meaning, implementation and maintenance of those principles does not mean that each person and each generation of people should simply give up in fatalism or despair. Rather, the importance of those important principles to Americans, their communities, their States, and the United States as a whole means that Americans need to understand and appreciate that the need to discuss and debate about the meaning, implementation, and application of those principles is similar to the ongoing need to deal with the challenges and vicissitudes of marriage, parenting, social relationships, jobs and careers, and life in general. Such discussion and debate require civility, moderation, thoughtfulness, and occasional compromise and accommodation. Partisan passions — however sincere and deeply held — are a poor, inadequate substitute.
It would not be practical or reasonable to expect that every American can reach complete unanimity about such important principles as due process, fairness, justice, and the rule of law. But, The alternative is Americans condemning themselves, our society, and our country to a brutal Hobbesian state of political and legal warfare.
1 comment
My article criticizes the use of unmoored legal rhetoric. The criticism of uncivil language could be the topic of another article. Sadly, unmoored legal rhetoric has been used by a wide range of people spanning the spectrum of American politics. My criticism applies to anyone — regardless of party affiliation or political persuasion — who uses unmoored legal rhetoric.
As to your reference to vile, uncivil language: Abusive, uncivil language in American politics is not a product of recent times. It has been used at various times from Colonial America to modern America. Indeed, the practice of invective and vituperation is not uniquely American — the practice in Western civilization has roots going back to Ancient Greece and Ancient Rome (and possibly earlier). Its ancient roots and long history do not make the practice proper or justified.