When Trump is gone—and one day he will be—another would-be Trump will arise to take his place. We will have a DeSantis or Hawley or Stefanik.
If a major political party and half of the American voters want leaders who will defy the laws, you can’t solve the problem by putting all of their leaders in prison.
I hope that’s obvious.
In other words, the threat to American democracy isn’t because not enough GOP leaders are in prison (or because Trump hasn’t been indicted). The problem is that, even with everything we know, American voters might give control of the House back to the Republicans in the 2022 election.
If people think that it’s up to Merrick Garland to put an end to the threat of fascism, they’re likely to sit back and demand that Garland DO SOMETHING instead of understanding that saving democracy is up to all of us. (How? See this post.)
When I posted that sentiment on Twitter, someone told me I’m “dead wrong.”
Confusing “Rule of Law” with “fairness” or “justice”
That person, like so many others, is conflating “rule of law” with “justice” or “fairness.” People who conflate these things say things like, “If all the guilty people are not punished, rule of law will be dead.”
They think rule of law means “everyone guilty gets punished.” Or they say: “If guilty person X is prosecuted and guilty person Y walks free, it means rule of law fails because the laws are not applied equally.”
If that’s what Rule of Law means, why do we have the exclusionary rule, which literally allows guilty people go unpunished? Under the exclusionary rule, evidence obtained illegally cannot be used in court. If the only evidence against you was obtained illegally, you walk free.
If Rule of Law means everyone guilty gets punished, I spent my career as a defense lawyer undermining rule of law.😉
In fact, our legal system is premised on the idea that it’s better to let ten guilty people walk free than to punish one innocent person.
Letting guilty people walk free may offend our sense of justice and fairness, but it does not mean rule of law is dead. To be clear: I am not saying guilty people shouldn’t be punished. I’m saying that’s not what “rule of law” means.
Okay, Teri, so what DOES rule of law mean?
Here is the dictionary definition of rule of law: “The restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws.”
Sociologist Max Weber, in his classic essay “Politics as a Vocation,” gives a more complete definition. Weber outlined three sources of authority that underlie governments.
First is what he calls “traditional” authority, which underlies monarchies.
The second is what Weber calls a “charismatic leader.” Today, we might say “strongman,” “demagogue,” or “dictator.” Weber devotes much of the essay to describing the qualities that leads someone to become a dictator.
Third is what Weber calls “legal authority” which says that the government derives its authority from laws. Our constitution (written laws) sets up the government and allocates power. Legal, or rule of law, is the authority underlying democracies.
Will Rule of Law in America survive?
I don’t know. Do enough voters like it?
Here’s the thing about democracy. At any given time, the voters can vote to overturn it. All they have to do is elect leaders who promise to dismantle rule of law and create an autocracy.
But Teri. Why would anyone dislike rule of law?
1. Some people reject rule of law when they don’t like the laws
If you don’t like the laws in a rule-of-law government, you have two options: Change the laws or dismantle the government.
When a government is as large and complicated as ours, changing the laws is a slow and cumbersome process. It can take more than a generation, so you may not live to see the fruit of your labor. Susan B. Anthony spent her life trying to change the laws so that women would have rights equal to men. She died before the 19th Amendment was passed and the modern women’s movement was far in the future. On the other hand, Thurgood Marshall, who set out in the 1930s to end racial segregation, argued the Supreme Court case, Brown v. Board of Education, that ended racial segregation.
Republicans break laws because they don’t like the laws
Once upon a time, the laws in America were primarily designed to benefit and protect White men. The nineteenth-century American society was a patriarchy, a social hierarchy with White men at the top and Black women at the bottom. Example: In the first part of the 19th century, slavery was legal in many places. In the second part of the 19th century, racial segregation was legal.
Another example: A court in North Carolina in 1868 refused to convict a man for beating his wife because the wounds he inflicted were not serious. (61 N.C. 453.) The court said that unless severe injury resulted, it wasn’t the business of courts or government to interfere in family life. The idea was that a man was entitled to rule his family as he saw fit.
Before the Civil Rights and women’s rights movements, all of our institutions were largely (and with few exceptions) run by white men: Universities, Congress, industries, state legislatures, etc.
The way we’ve been getting out of the patriarchy is by changing the laws governing things like racial discrimination and the legal status of women.
The Civil Rights and women’s rights movements further eroded white male power. A lot of white men resent the laws put in place since the civil rights and women’s rights movement. They think the laws are allowing them to be replaced by others. They think the laws put in place since the New Deal and Civil Rights movement are destroying everything good about the country.
If offered a choice between a Trump-style autocracy and a liberal democracy in which they have to give up dominance, many of them will choose the Trump-style autocracy.
2. Some People Reject Rule of Law Because It Is Imperfect and they Can’t Tolerate Imperfection
Rule of law will never operate perfectly. A guilty person may walk free because the jury isn’t persuaded or the prosecution bungled the investigation or the prosecutor decided not to bring charges.
Judges can be (and often are) biased. Sometimes even good judges get it wrong.
People see these imperfections and have meltdowns and say, “The entire system is corrupt! It doesn’t work! It’s a failure!”
Examples:
See why I feel disheartened?
Where are the defenders of rule of law? Where are the defenders of democratic institutions? If everyone hates our institutions and nobody defends them, how will they survive?
If people who want fairness reject the system we have, what on earth do they think will replace it?
3. Some People Reject Rule of Law Because It Moves Slowly and they want Action Now
The Queen of Hearts could say, “Off with his head!” Building a case with solid evidence that can stand up in court, following the federal rules of evidence, is much harder and takes much longer. Complex cases take longer than simple cases.
Autocracy is SWIFT and exciting and thrilling. The leader lands blows on the enemy and people cheer. The autocratic leader puts on a thrilling show.
Democracy and rule of law are boring.
Democracy is slow grinding work. Dividing power among lots of different parts of the government makes it harder for an autocrat to consolidate power (and in fact, that’s exactly what stopped Trump from keeping himself in office after he lost the election). It also makes it harder to get anything done. Gridlock become common.
I get the feeling that some pundits are impatient because they want something to talk about when they go on TV., so they bash the DOJ because the DOJ is not letting them put on a thrilling show (under DOJ regulations, the DOJ does not conduct its investigations in public.)
This well-known lawyer who frequently appears on television as a legal expert frequently Tweets things like, “Come on, DOJ,” and “DOJ. Let’s go.”
The implication, of course, is that the DOJ isn’t moving and needs to be prodded. Tweets like these attract a large following. He riles people and gets them cheering. It’s fun! It’s thrilling!
Perhaps an inadvertent consequence is that it turns people against rule of law.
4. Some People Reject Rule of Law Because It’s Complicated
We have a complex, sprawling government with 51 jurisdictions (state laws and federal laws). Something can be punished one way in Texas and another way in California. I’ve seen people get unglued over this and demand, “Where is the fairness?”
There are advantages to 51 jurisdictions. One state can try something, and if it works, others can imitate it. For example, a few states implemented 100% vote by mail and proved it works. Others can then follow. Changing the entire country to vote by mail at the same time would be almost impossible given the size of the country.
There are also disadvantages: The system gets complicated and people, even educated people, don’t understand how it all works.
Autocracy is simple. People are told what to think. They fall in line. They are fed lies and myths, but the lies and myths are satisfying.
Political psychologists tell us that one characteristic of the authoritarian personality is that they reject complexity (diversity is a form of complexity). Even people who are comfortable with nuance and complexity can get frustrated with something they don’t understand.
A person left this comment on my FAQ page:
At what point do we concede that this is all too complex?
Apparently our institutions are unable to educate a large segment of the electorate regarding the necessity of legal complexity. So, how might we simplify at least some of this complexity? Is it an issue of Justice or Politics?
This problem will only get worse. As the population grows and globalism causes us to become more entwined with other nations, systems will become more complex, not less. Will people be able to tolerate it?
5. Some people just like to bash
When Trump was president they bashed Trump. Now they are bashing Garland. They are attackers. It’s what they do. If you’re on Twitter you probably know of a few large accounts that grew large bashing Trump and then after Biden took power, they pivoted to bashing Garland.
I am not blaming the consumers of news who are frustrated
I’m blaming the pundits and rage-merchants who are stirring anger instead of educating people. The Facebook whistleblower testified that anger is the emotion that gets the most engagement. Anger gets engagement and stirring strong emotions gets engagement.
We’ll never silence the rage merchants. We need to educate consumers of news to recognize when their emotions are being manipulated.
Rejecting Rule of Law enables autocracy to take hold
Consider these tweets, in which the person essentially argues that the DOJ’s slow pace justifies a violent reaction.
The above tweets could be from a Russian troll farm trying to cause Americans to turn against their own government.
Here is another person suggesting that Merrick Garland is as bad as a criminal:
Or they could be from someone who listened to the pundits on the evening news slamming Garland for his slow pace.
It’s hard to tell the difference, and that’s a problem.
Q: Will rule of law survive?
A: It will survive if enough people want it to survive and do the work of defending it.
When I say that, people think I’m optimistic, but that’s because they miss the significance of the word “if” in that sentence.
And now, some dog content
“This is mine now. I’ve had enough of that doggie bed. I’m warning you. Don’t even TRY to get me out of here. YOU can sleep in the doggie bed.”
And no, it doesn’t work to try to share a bed with him. Apparently, he doesn’t think there’s enough room. It’s him or the people.
To be fair, J.J. does spend all day guarding the house while people sit there looking at screens, hardly even noticing when dangers like mail carriers or skateboarders get near the house. Why, then, do the people get the good bed? It makes no sense.
Sad to see AW amplifying Mags, when her source is most likely trump himself, or his lawyers
Your posts help bring me back to reason when the twit world begins driving me mad. Thank you for calm and measured communication.
What is your explanation of why Trump was never charged with obstruction in the Mueller investigation?
It seemed plain that he had committed that crime more than once. An astonishing number of former federal prosecutors signed a letter saying that Trump had committed obstruction and that it was “not a close call.” Moreover, the statute of limitations had not yet expired in 2018.
See my FAQs. It’s a sticky, so if you go to “blog” you should find it.
Hey! I’m signed up, for the first time ever, to be a poll worker and possibly a poll watcher, too!
Teri Kanefield’s Persistent Messages, in support of patience for our carefully crafted and often frustratingly slow system, do a great deal to keep us all engaged in the current, dark system, in which One Political Party seems inclined to let our democracy slip away.
There comes a time when you must stick your neck out. When you must stand up and be counted. Working elections in this troubled time, seems like one solid way to do this.
May we (and all other election-related workers) stay safe, going forward, into, and through the coming elections.
(($; -)}™
Gozo
Good for you. I spent 6 hours today doing volunteer voter protection through the DNC monitoring early voting in Georgia.
Thank you for this & thanks for giving warnings before taking any horrible actions. 🙂
“One problem is that people expect the criminal justice system to solve a political problem”
It may sometimes seem like I’m expecting that, but I do think that criminal justice action has a strong impact on the politics. Well, okay, it used to and I sure hope it still has some. 🙁
RE: JJ & bedfellows…thinking it may not be so much abt room/space, but more abt potential Rollover Impact of bedfellows who are so much longer, wider, heavier than he is…even the pillows almost have more mass!! (thx/enjoy the JJ photos/notes you include )
Totally agree. He really gets annoyed when he’s trying to sleep and someone moves (or! Horrors! makes physical contact while he’s trying to get his beauty rest.)
Before I started reading your blog 4 yrs ago, at 63yo, my ‘inner-teenager’s’ hackles used to get raised when I heard the words, ‘Rule of Law,’ b/c I thought they meant Queen of Hearts/Authoritarian rule. I am an educated woman (MA-level), who did not recall that part of her HS American History, and who gratefully re-learned the accurate definition via your posts. I think I am not in the minority; there are LOTS of adults who grossly mis-define it…Reading abt it again today➡️ how to get the DNP to fill loads of prominent billboards all over US & do TV ‘ads’ stating the actual definition of Rule of Law & its use/importance in our Constitution.
“Law and Order” used to be code for “put Black men in jail.”
Nice piece Teri!
Always curious if education level plays into this (if at all) regarding average Joe citizens/voters not congress (who should all know better with a few known exceptions)
Your excellent point..
“One problem is that people expect the criminal justice system to solve a political problem
It’s clear from the nature of the attacks on Garland that one problem is that people expect the criminal justice system to put an end to the threat to democracy posed by the Republican Party.
When Trump is gone—and one day he will be—another would-be Trump will arise to take his place. We will have a DeSantis or Hawley or Stefanik.
If a major political party and half of the American voters want leaders who will defy the laws, you can’t solve the problem by putting all of their leaders in prison.
I hope that’s obvious.”
YES-education is a MAJOR issue. Defunding & demonizing public education is a Republican goal. The ignorant are far easier to manipulate via fear & lies.
I removed the content so I could reply to the person posting.
Tony, I approved this one so that you can see my response.
I don’t want you posting more on my blog. This is not social media where I have to put up with people looking for an argument.
If you disagree with everything I say, you won’t get much from my blog and you’re wasting your time.
We need to take a deep breath and pause to think about the founders of our democracy. They took years thinking, studying, debating, and revising when they wrote the constitution. They looked at every clause from every angle asking how things would work in different situations and with different factions in power. Today we want instant gratification which leads to too many laws with “unintended consequences”. We need more slow movement not less!
Thank you so much for taking the time to educate us in the workings of government & law! I told my husband your posts are my lessons for being a proper democrat (small d).
“I am not blaming the consumers of news who are frustrated
I’m blaming the pundits and rage-merchants who are stirring anger instead of educating people. The Facebook whistleblower testified that anger is the emotion that gets the most engagement. Anger gets engagement and stirring strong emotions gets engagement.
We’ll never silence the rage merchants. We need to educate consumers of news to recognize when their emotions are being manipulated.”
Spot on Teri. I’m one of the humans on this earth who tends to react, internally and sometimes externally, to the rage-merchants. I have been known to rant and rave about Garland’s DOJ and the speed I perceive them to be moving at. I got tired of going on through my day, including when I turned in at night, feeling angry, hopeless, etc.. I finally forced myself to start working (and it’s not easy) at looking beyond the rage-merchants and getting a broader look, preferably from fellow humans, like yourself, who is knowledgeable, authentic, and just reports accurate information in a neutral way. Thank you for what you do! I appreciate your approach.
Reading your comment just lowered some of my anxiety & my eyes filled with tenderness & relief when I finished reading your comment. So glad you posted it. Thank you❤️
Thank you soooo much! You’re one of the few bright spots of clarity and sanity in an otherwise discouraging landscape. Rock on!
An excellent overview on a contentious subject. My Unified Theory of American Politics is that a majority of citizens feel completely disconnected from politics and governance, and as a result expect Somebody Else to Do Something. This applies across the political spectrum. America surfed a wave of unprecedented power and affluence from WWII until arguably today, and as a result believe our political order is natural, eternal, and just works all by itself. The only interaction with government a typical citizen has is jury duty or applying for a building permit. Maybe an IRS audit or DUI. A third of eligible voters don’t bother, and the coveted “swing” voters seem more interested in who the most entertaining candidate is.
I spend too much time on liberal blogs, and a lot of posters and commenters I respect complain about the feckless coward Mertick Garland who won’t Do Something, people with absolutely no clue what charges should be brought (at least they have learned to stop yelling about treason and moved on to sedition) let alone what it would take to get a conviction, let alone avoid getting it overturned on appeal. Let alone an unprecedented prosecution of a powerful white man by a system heavily weighted in favor of powerful white men. Let alone a powerful white man with an army of followers eager to do violence at his request. Again. I worry that embracing this Law & Order: Special Coup Unit view of how justice is supposed to work leads to where Republicans are now, obsessed with persecution fantasies and paranoid conspiracy.
Throw Trump and his minions in prison and none of this goes away. The Supreme Court remains stacked for a generation, the Republican Party is on track to enshrine the ability of state legislators to throw out any vote result they don’t like without explanation or justification, and those 40 million Trump voters are still out there, waiting. Far too many people think that the thrill of a Trump trial and conviction means the fight would be over, just like a movie.
We can’t expect all the MAGA crowd to instantly recover from the brainwashing overnight. I keep searching for material on how we survived the Civil War, or the de-Nazification process in Europe. Because let’s face it, we are the United States of America and we will not let any states secede. We have to find a way forward for all our civilians. We have to come up with educational videos – a whole bunch of them – that are simple enough on a 5th grade level, that will not preach to anyone who once followed or follows the GOP. And we need instructional videos on how to keep our patience when talking to friends & family without losing it. Americans need to realize that democracy and the Rule of Law is worth keeping, because the alternative is a very, very dark place.
Teri, thank you for providing this place of calmness (your blog & your tweets).
Thank you so much, Teri. I’m so jaded about our media that I suspect people are paid to publicly undermine trust in the Justice Department and the administration in general.
I am strictly a print media person, and I tend not to read opinion pieces. I stick with good reporters.
Cable news these days is more like slick entertainment, particularly the pundits. Some are good. Many are not.
Staunch Democrat I know shocked me when I asked if she’d read your blog, and she adamantly replied, ‘I don’t read, I only get my info from TV shows like MSNBC. I know reading is hard work for some brains, but she is a retired editor. My heart sank–there is no curiosity to learn details, or to question anything, there is also no tolerance for questioning one’s own party members…
Would love to see a post on recommended reporters/sources you follow.
As you noted most of these systems(political and media alike) promote rage and instant gratification. So, much like democracy, it’s up to all of us to put the work in(as you clearly do! Thank you so much!!!) to educate and spread information that is constructive even if it is a little boring lol. Because as we know the algorithms aren’t going to do it for us.
This is a great idea.
I find it discouraging to think of the gap between justice and the rule of law. Why is the Department of Justice called the Department of Justice instead of the Department of Law, or the Rule of Law?
To move the rule of law closer to justice it seems crucial to have an educated and involved electorate. The means of education must be there. The media should be part of education, not a major problem.
The goal of any rule of law agency is justice.
That justice cannot always be achieved doesn’t lessen that that is the goal.
By that logic the Defense Department might called the Peace Department.
I think words need to be accurate or we get into all kinds of wrong thinking.
Thank you for your excellent summary of the realities of the rule of law.
If you want to be really accurate, you’d call the “war preparation department” 🙂
When my grandparents were born, women were not able to vote. When my parents were born, Black people were effectively not able to vote in many areas. I appreciate your steady reminders that a truly inclusive democracy is a relatively new and disputed concept in our country.
I will also note that I don’t find your writings “calming,” as others seem to do. They are educational and provide valuable perspective, but the message is never “relax, it’ll all be fine.”
Thank you so much for what you do. Your explanations are insightful and ‘up lifting’. I am inspired to get more involved.
A conviction of Trump may not solve the political problems, but it does seem like it would bolster the faith in the rule of law which would be useful.
“Bolster the faith” in a portion of the population. Don’t mistake your views for everyone’s.
See what I mean? The FOX viewing crowd will not have their faith restored.
Just saying.
I believe it will happen, but let’s be realistic about the possible
Thank you for your calm, insightful posts. A balm to the soul compared to the craziness of 24/7 talking heads and twitter shouting.
Regarding the need for an educated electorate, how can we address media that intentionally riles up and manipulates people to undermine rule of law?
Thank you.
To expand a bit: I take both comfort and courage, Terri, from your posts and those of historians Heather Cox Richardson and Timothy Snyder, all of which cast light on current events while insisting over and over that democracy only exists as a set of ongoing collective actions making it so in the context of ideas that it is worth the effort. To quote songwriter Judy Small: “one brick in the wall, you may be, one voice in the crowd – but without you we are weaker and our song may not be heard.”
To everyone reading this: contact voters by whatever means work for you; do what you can to make the world a better place. Make a plan to vote.
Thank you for the time and effort that you put into helping us, in as many different ways as your words can help us. I learn much, and I am inspired. I signed up as an election judge for the primary and worked it and I am scheduled to work the general election on November 8th. Your blog is the reason I signed up.
Hey! I’m signed up, for the first time ever, to be a poll worker and possibly a poll watcher, too!
Teri Kanefield’s Persistent Messages, in support of patience for our carefully crafted and often frustratingly slow system, do a great deal to keep us all engaged in the current, dark system, in which One Political Party seems inclined to let our democracy slip away.
There comes a time when you must stick your neck out. When you must stand up and be counted. Working elections in this troubled time, seems like one solid way to do this.
May we (and all other election-related workers) stay safe, going forward, into, and through the coming elections.
(($; -)}™
Gozo
In this sound byte, give me my fries & burger quickly, instant news culture of ours, I am not surprised people are impatient. Your analyses of complicated (at least to me) legal issues has helped me to understand why it takes time to bring together all of the evidence required to get convictions. As I talk to people during canvassing, even in KY, many people are frightened of the path the Republican Party is going down. While they might not agree on all of the political hot button issues (abortion), they are deciding to not vote for election deniers. I am hopeful
Thank you so much for this. It gave me a much clearer understanding of how this all works & why fpotus or his enablers hadn’t been thrown in jail (as of yet) I look forward to reading more of your blogs & fb posts✌️
Reason is good.
Thinking is good.
Understanding is great.
~ wish the corporate media was on board but ratings and profits reign , sigh
Thank you Teri for the news!
JJ can have the bed during the day. Isn’t that fair 🙂
You are a reason for me to feel grateful. Thank you.
Thank you Teri.
Thanks for your thoughtful analysis, as always—& for your appreciation of J.J.’s hard work! Those skateboarders. . . !
Thanks, Teri. I really hope rule of law and democracy will survive, but time will tell. If every eligible voter votes, we should get there because those who support the GOP are well under half the electorate. The thing is that as you noted, democracy requires an educated population. It also requires that the electorate be engaged and actually care enough to vote. The GOP supporters vote. Others vote when they care enough about specific issues. Perfect is the enemy of progress though – we have to work to convince people to vote even if they don’t get everything they want because progress takes time. Just look how long it took for us to get suffrage for everyone after the country was founded.
Now, I have to quibble with you still insisting that rule of law and democracy are boring, especially after the week we’ve just had. Also, all of the various filings you’ve been explaining over the last several months are fascinating. Not boring at all. Insane and entertaining at times, educational to be sure, but not boring.
Teri, i often go to your blog even before i receive your email alert. I guess, after listening to the pundits each day, I’m eager for your dose of informed sanity to talk me off the ledge. Because of my cancellation of cable, I no longer can listen to some of these pundits. Maybe I’ll go to the gym instead. But I will always read your stuff. Thanks.
Sometimes I publish early so I can get a few friends to proofread 🙂 In fact, right now, I’m tinkering before the email goes out.
Thank you, Teri.
This is the first time I’ve come here instead of reading you on FB. I’m glad I did.
Be well —
Leigh
Thank you!