Why do we write laws down?
It sounds like a question that ought to have an obvious answer, but it isn’t. The fight over the nomination of Neil Gorsuch to the Supreme Court is one reminder of that.
So is the recently concluded season of The Walking Dead. More about that in a bit.
Much of the fight over Gorsuch is tit-for-tat: Republicans stopped Merrick Garland from ascending to the Supreme Court, and now Democrats feel the need to take a scalp of their own. Fair enough, but consider that Mitch McConnell torpedoed Garland in no small part as a response to Barack Obama’s maximalist interpretation of presidential powers, which he sought to use to diminish the role of Congress and to aggrandize the power of the executive. The Garland nomination presented McConnell et al. with an opportunity to push back against the imperial presidency in a way that proved delightfully painful and humiliating to the incumbent. The president is not the only man in Washington who can push things to the limit.
But there is a broader debate — occasionally, even an honest one — about what we sometimes call “judicial philosophy.” Gorsuch, we are told, is a “conservative,” and he may even be an “archconservative” in the mold of the late Antonin Scalia. Heavens.
Scalia’s “judicial philosophy,” however, was more of an anti-philosophy: His position was that the duty of judges is to determine what it is that the law actually says — irrespective of the judge’s feeling about it, irrespective of his own sense of justice, and, indeed, irrespective of whether the law is good or just or intelligent. Scalia’s anti-philosophy sometimes confused his critics on the left, because it led to decisions that were pleasing to flag-burners and displeasing to police and prosecutors. Scalia wanted flag-burning to be outlawed: “I would send that guy to jail so fast if I were king,” he said of the defendant in Texas v. Johnson, the famous 1989 case arising from protests at the Republican National Convention. But flag-burning wasn’t outlawed: It was — and is — in fact protected by the First Amendment. Robert J. Smith remarked in Slate that progressives were pleased by “his surprising support of criminal defendants,” but Scalia did not support criminal defendants and his positions were not surprising: The law supported criminal defendants in those cases, and Scalia spent his entire career arguing that the role of judges is to hew to the law.
It is surprising only if you believe that judges should be guided by something other than the law, as so many of our so-called liberals do. Barack Obama argued that judges should be guided by “empathy” — which does not actually exist — and that they should take into account whether someone pleading a case is “a teenage mom” or “poor, or African-American, or gay, or disabled, or old.” The classical proverb describing equality under the law is that “the law is no respecter of persons.” President Obama explicitly rejected this, as does Sonia Sotomayor, who believes that the law might mean one thing if a white man is the judge and something else if “a wise Latina” is the judge. That is not the rule of law at all, but the rule of tribe.
Gorsuch was asked a great many stupid questions during the course of his confirmation hearings, often questions intended to suggest that he favors the wealthy and the powerful over — inevitable and beef-witted expression — “the little guy.” Sometimes the little guy has the better case, and sometimes the little guy is a jerk who deserves to get the pants sued off him. Sometimes the law is very helpful to powerful individuals and organizations (see General Electric’s tax history) and sometimes the law is harder on the high and mighty (e.g., libel cases). But the law says what it says.
Some people find this irritating, because adherence to the letter of the law often gets in the way of the pursuit of justice, and changing the law can be difficult, especially if the law you are talking about is the Constitution. Again, our lack of real political education — of education in citizenship — here imposes real costs. There are questions of specific justice and there are questions of general justice. “Hard cases make bad law,” the judicial scholars say, and we have invented a phrase and a concept — “legal technicality” — to help us finesse that away. (You know what the technical legal term for “legal technicality” is? The law.) Sometimes we are obliged to throw out a case against an obviously guilty man because police or prosecutors broke the law in the course of trying to bring him to justice. Sometimes a sympathetic victim fails to win a lawsuit against a rich and powerful opponent who did something that was obviously wrong but not illegal. The entire rhetoric of the “living Constitution” is simply a way to intellectually whitewash the fact that there are those among us who desire to simply throw the law out when the law does not produce the results they desire.
But the rule of law is not about individual outcomes. It is about process. We have process because we do not agree about outcomes — which is to say, we have the law because we do not agree about justice.
And that is why we write the damned things down.
We have been recording and making public our laws since at least the time of Hammurabi because questions of justice are not always self-evident and because the parties involved in any dispute are unlikely to be objective adjudicators. We agree to live by a set of imperfect rules and processes, even when those produce undesirable and even unjust outcomes, because experience has taught us what the alternative is. This is not quite the Hobbesian case for an absolute state: Unlike Leviathan, the law is in the end answerable to those it serves. We can change it through the legislative process, which we can shape through the democratic process. To say the monarch’s word is law is to create a particular form of government with a particular character; to insist that the law’s word is law is only a redundancy.
What our ancestors found is that pursuing justice without the rule of law is futile. Tribe, self-interest, scarcity, circumstance, passion, greed, lust — something always gets in the way. Philosopher-kings are scarce on the ground.
If you’d like to see what pursuing justice without law looks like, consider the case of Rick Grimes.
The Walking Dead is about a great many things — not the least of them a zombie apocalypse in which no one ever says the word “zombie” — but it is mainly about the search for security, which is another way of saying the search for order. Our plucky band of mostly decent and largely like-minded survivors is led by a police officer, Sheriff Grimes, who is gradually transformed by circumstances from a lawman to a warlord. There is a short-lived experiment with democracy and a temporary retreat into a kind of agrarian commune, but in a world in which none of the institutions of liberty survive — no courts, no police, no lawyers (who ever thought we’d miss them so much?), no state, no process — strong-man rule is all but inevitable.
One of the amusing aspects of the series is Grimes’s group’s rationalizing their adoption of practically every horror they encounter: They all agree that using zombies as anti-personnel weapons is the lowest thing imaginable when one of their early antagonists does so, but about five minutes later they have decided to do it themselves. Faced with new and worse enemies, the Saviors, who rely on their superior numbers and advantage in matériel to simply take what they want from less powerful groups, Rick’s group . . . relies on its superior numbers and advantage in matériel to simply take what it wants from another, less-powerful group — a group of already victimized women and children who will consequently be left defenseless. Their reasoning is that doing so is necessary to fight the Saviors, who make much the same argument for their own brutality: The order it imposes is necessary to fight the zombies and the anarchy they brought with them.
The Saviors are the opposite of the post-apocalyptic anarchists of The Road Warrior or similar dystopian fictions. They are very rule-oriented — brutally so, in fact: Their leader, Negan, summarily executes a man for the crime of intending to rape a female prisoner. The Saviors have a complex system of economic exchange characterized by a points scheme that rewards labor and enterprise while rationing scarce resources — the basics of a free-market economy. But rules are not the law. The Saviors have no process, no legal institutions, no Bill of Rights, and no written law. Negan understands his mission in life to be restoring order to the world (a different kind of order than the one that prevailed before the plague), but without the rule of law he brings only what another character accurately describes as “capricious malevolence.”
Rick Grimes began his own odyssey wearing his sheriff’s uniform — he even found uniforms for deputies at one point. With his badge and his gun and his sheriff’s hat, he was the only reminder of the rule of law. But the thing about the rule of law is: It cannot be sustained by one man. It requires institutions and civil society, secure property rights, and much else, none of which exists in the world of The Walking Dead. And so the badge and the uniform eventually went away as Rick and his group learned to countenance, and even to embrace, everything they once believed to be inhuman — up to and including the preemptive murder of a child and executing sick people as a necessary public-hygiene measure. The survivors — the good guys — go from trying to cling to some form of democracy while defending themselves from sundry assailants to organizing unprovoked raids on peaceable neighboring communities. Rick’s sheriff’s hat becomes a ceremonial crown, passed along in the ancient fashion to his son and presumptive heir.
In the real world, we do not have zombies threatening our institutions and the cherished liberties they protect. We have the students of Middlebury College.
— Kevin D. Williamson is National Review’s roving correspondent.