The Only Problem With The Rule Of Law Is That It Can’t Enforce Itself

A great idea is only that – a great idea – until somebody drags it kicking and screaming into reality. Inventions don’t invent themselves. An engaged, sentient mind must do the inventing. Humans aren’t the only intelligent creatures capable of “inventing” things. Prior to the first beaver building its first dam, no such thing existed. The unavoidable “step one” is identifying a problem that needs solving. Obviously some beaver or proto-beaver recognized a need inside its own head that only building a dam would satisfy. And voila: beaver builds dam. In order to problem solve, first one must recognize that one has a problem. The beaver solution to their problem: dam it! Our solution to our problem? What problem? And that is where our problem begins.

The genius of self government is that we govern ourselves. We don’t need a king. Don’t need a church. Don’t need an autocrat or any kind of authoritarian imposing government upon us, assaulting us with it as needed. We govern ourselves via laws the majority of us deem necessary and beneficial to the commonweal. We govern ourselves so as to get the best out of everyone, so that everyone can contribute to “this thing of ours”. We govern ourselves because the more level the playing field is for more people, the more people will get to not only taste the benefits of freedom, but enrich our freedom by becoming part of it. By the way: freedom is never free. Only ten year old boys and libertarians think otherwise.

Freedom has amazing benefits. But those bennies come with giant responsibilities. Don’t want to shoulder the responsibilities? Put down the benefits. You’re not ready for them. You’re too green, too greedy. You really need to spend a few years living in fear that your rights are provisional (if you have any). No one has been a truer or better keeper of the flame that is the American ideal than Black women – having been denied it up until now. They know specifically what this right is and how important it is precisely because they have never had it or had it in any way that they could count on. They’ve learned the hardest way possible that “All men are created equal” is meaningless as written because the white, Christian, land-owning men who penned it only meant “men” and only “Christian, land-owning men” who looked like them”

That is evil. When you cut deals with evil – slavery is stolen labor above all – a basic evil – you end up compromised while evil walks away exactly the same. Evil never compromises with anyone. Anyone who compromises with it needs to be called out for doing exactly that.

It’s an unfortunate fact about America that despite the greatness of our ideals, we have never, EVER lived up to them as a country. Historically, that’s been because, in America, white, Christian men have held the reins of power almost exclusively. Remember: they penned “All men are created equal” but didn’t really mean “ALL men” – they meant men exactly like them: white, Christian and land-owning. The only word they truly meant was “men”. Our founders had a brilliant idea that they failed to execute the way they should have. Good thing they built a “fix it” app into the architecture: our Constitution is adaptable to changing needs and times. To corrections as needed and necessary.

That’s the DIY aspect of democracy. It requires those being governed by it to be hands on. The deal we make with those we elect to govern us is that they will take care of business we don’t have time for. Our national security, for instance. Highways. Drinking water. How food ends up on our kitchen tables (without us having to hunt and gather any further than the local Whole Foods or the Instacart app). As tempting as it can be to treat democracy – when it seems to be functioning – like it was on cruise control – that is a terrible mistake. Cruise control in a democracy is an illusion. Worse, it undermines democracy even as it claims to service it.

Democracy is always going to be a contact sport – if it’s to be done correctly. If we want the meek to inherit the earth – or any part of it – someone needs to advocate on their behalf. If we want any kind of fairness to have a shot at working, we need to make it work. That’s the ideal behind the rule of law. Ideally, it would really and truly level America’s playing field so that we all truly stood equal before it – and stood to benefit equally from it. Those that have aren’t necessarily inclined to “give up” what they have – especially if they perceive that loss as permanent. Democracy is not a zero sum game however. It succeeds best when all of those participating in it flourish. That should be/must be our democracy’s goal: to fulfill the promise of E Pluribus Unum – the “out of many, one” nation unlike any that ever preceded it.

Few great ideas are easy to pull off. Look how many Christians struggle to “Do unto others” instead of behaving like Romans or money changers in the Temple forecourt. Our founders made a hash of “All men are created equal”. The rule of law has suffered similarly not because it’s not a great idea but because it’s truly hard to pull off, exponentially harder still to pull off correctly. We’ve applied the rule of law unevenly up until now. That’s why so many people are cynical about it. They misperceive the problem as being the rule of law itself when it’s us – humans – and human incompetence at manifesting moral behavior.

Our moral arbiters – the church – has bamboozled us into thinking morality is what’s inside our undies rather than what’s inside our hearts.

Those same people want us to believe that democracy doesn’t matter. That white hegemony should be what’s for breakfast, lunch and dinner in America. Having always viewed the rule of law as a cudgel with which to hold onto power, Republicans intend to dismantle the rule of law brick by brick until all that’s left is the cudgel.

Here’s where Merrick Garland needs to not only step in but jump in head first. In his defense, if he’s contemplating what he needs to contemplate, he absolutely must line up every single duckie he’s got before jumping in. Yesterday, clearly anticipating his future, Trump told his followers to react violently should he be arrested for anything. That, by the rule of law, is entirely unlawful.

In a perfect world, “magical forces” would suddenly emerge from the ether and snuff out this violence before it gets het up and heated. In our world, the rule of law needs to step up – and do the things we invented it to do.

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