Bundy and the Rule of Law

by Andrew C. McCarthy

I agree with David and Rich that John Hinderaker’s Bundy post is very strong. As a matter of law, Cliven Bundy is in the wrong. He is nevertheless a sympathetic figure, and the concerns raised by the standoff in Nevada transcend the illegality of his conduct.

Rich’s recollection of Lincoln’s exhortation that reverence for the law become “the political religion of the nation” triggered my recollection of a seemingly inconsistent speech Lincoln delivered as president nearly a quarter-century later. As the Civil War raged, the president very controversially suspended the writ of habeas corpus and imposed martial law in states where Confederate operatives and sympathizers were taking seditious action. Addressing Congress on July 4, 1861, Lincoln defended his suspension of the writ:

Of course some consideration was given to the questions of power and propriety before this matter was acted upon. The whole of the laws which were required to be faithfully executed were being resisted and failing of execution in nearly one-third of the States. Must they be allowed to finally fail of execution, even had it been perfectly clear that by the use of the means necessary to their execution some single law, made in such extreme tenderness of the citizen’s liberty that practically it relieves more of the guilty than of the innocent, should to a very limited extent be violated? To state the question more directly, are all the laws but one to go unexecuted and the Government itself go to pieces lest that one be violated?

Now, it was only advisedly that I described this speech as “seemingly” inconsistent with the one Rich excerpted. For one thing, Lincoln did not believe his suspension of the writ violated the law, and he had a very colorable argument. The Constitution provides for the writ’s suspension in cases of rebellion or invasion; it does not say who may suspend it. The Supreme Court’s eventual conclusion (in the 1866 case of Ex Parte Milligan) that Congress must enact a suspension because the relevant clause is in Article I was sensible, but it was not indisputable. Lincoln was not without reason to believe that he had the necessary authority as long as a rebellion or invasion had occurred. Moreover, Lincoln’s passion for the rule of law was evident even in the act of arguably breaking it: He not only vigorously contended that his suspension was lawful; he also urged Congress to affirm the suspension by passing legislation (which Congress did in 1863).

But all that said, Lincoln’s speech does justify law-breaking in extraordinary circumstances. I’d construe his argument as follows: Even if what I have done is unlawful, it was necessary because it was done for the higher purpose of preserving the system that protects our liberties—under dire circumstances where violating the law was more faithful to the Constitution than obeying it would have been.

Many of us think Lincoln was right—I certainly do, and I even suspect the Supreme Court did (note that the suspension was invalidated only after the war was over). This informs our assessment of the situation in Nevada, and explains why Bundy gets our sympathetic consideration even if we cannot absolve his illegal conduct.

The underlying assumption of our belief in the rule of law is that we are talking about law in the American tradition: provisions that obligate everyone equally and that are enforced dispassionately by a chief executive who takes seriously the constitutional duty to execute the laws faithfully. The rule of law is not the whim of a man who himself serially violates the laws he finds inconvenient and who, under a distortion of the “prosecutorial discretion” doctrine, gives a pass to his favored constituencies while punishing his opposition. The rule of law is the orderly foundation of our free society; when it devolves into a vexatious process by which ideologues wielding power undertake to tame those whose activities they disfavor, it is not the rule of law anymore.

The legitimacy of law and our commitment to uphold it hinge on our sense that the law and its execution are just. As John Hinderaker points out, concerns about the desert tortoise—the predicate for taking lawful action against Nevada ranchers under the Endangered Species Act (ESA)—turn out to be pretextual. The ideologues who run the government only want to enforce the ESA against a disfavored class, the ranchers. If you’re a well-connected Democrat who needs similar land for a solar project, the Obama administration will not only refrain from enforcing the ESA against you; it will transport the tortoises to the ranchers’ location in order to manufacture a better pretext for using the law to harass the ranchers.

When law becomes a politicized weapon rather than a reflection of society’s shared principles, one can no longer expect it to be revered in a manner befitting “political religion.” And when the officials trusted to execute law faithfully violate laws regularly, they lose their presumption of legitimacy. Much of the public is not going to see the Feds versus Bundy as the Law versus the Outlaw; we are more apt to see it as the Bully versus the Small Fry.