By Everyman Jones

Americans are a lawless people. Not in the sense of wanton banditry—although the current administration seems quite proficient at it. No. More so in our shared ability to navigate our day-to-day lives without much reference to the “rule of law.” Our laws supposedly reflect our values; living those values is sufficient to live a lawful life. We are good people because we are “law-abiding citizens,” and we are “law-abiding citizens” because we are good people.

But what do we do when our law and our values do not so cleanly intersect? When our laws are used to accomplish ends antithetical to our stated values?

Those questions came to mind when I saw a video clip of Chuck Schumer, the Senate minority leader. Schumer was on national TV, debasing himself while being interviewed by Chris Hayes, and doing everything in his power to avoid having to say that what President Trump was doing was wrong. Schumer asserted that we would not be in a constitutional crisis—that our democracy would not be “at stake”—until the moment the president disobeyed an order of the United States Supreme Court. “That is a different thing than anything else.” “It’s a quantum leap different,” he added. “Then—248 years of American democracy, the Magna Carta—is out the window.”

Although I’m a lawyer, this paean to the rule of law confused me.

Right now, there is a counter-majoritarian, right-wing supermajority on the Court, of which the current President appointed three members, the culmination of a forty-year “originalist” political project. On what issue would there be an expectation of disagreement, let alone disobedience? Moreover, human issues become abstractions at the Court. What TV-made legal issue was Schumer assuming would be disobeyed? If the president “disobeyed” an order requiring the EPA administrator to conduct statutory inspections for bentonite particulate matter at coal refineries, how many Americans, in Schumer’s words, would be expected to “rise up” and “take extraordinary action” then?

A month later: another interviewee; more clarity. “Law is too important to leave only to the lawyers,” wrote professor Kim Lane Scheppele. In “Autocratic Legalism,” Scheppele argued that, like our shared cultural reference points for imagined twentieth-century authoritarianism (Stalin, Pol Pot, Pinochet, for example) today’s “legalistic autocrats” also pursue authoritarian goals. However, these authoritarians do not engender the same immediate outrage because, to varying degrees, each achieves their autocratic goals through facially legal means. They “operate in the world of legalism,” she writes. “The autocratic legalists often make a giant public show of being governed by and governing within the law, changing the law and even the Constitution itself with impeccably legal (if illiberal) methods.” She added, “Because the legalistic autocrats deploy the rhetoric of democracy and the methods of the law, observers find it hard to see the danger until it is too late.”

“Autocratic Legalism” was first published in 2018, more than a year into Trump’s first presidential term. Interestingly, the United States is only mentioned in passing, merely as a representative example of “liberal, constitutional democracies.” And Trump is discussed even less, in the sense of not being named at all. However, you get the clear sense that Scheppele was writing about Trump still, using Viktor Orbán of Hungary and Vladimir Putin of Russia as allegories for Trump. “One should first suspect a democratically elected leader of autocratic legalism when he launches a concerted and sustained attack on institutions whose job it is to check his actions or on rules that hold him to account, even when he does so in the name of his democratic mandate,” she says. 

I learned about Scheppele’s research a few months ago when she was interviewed on Amicus, a legal podcast. The episode title piqued my interest: “Trump’s American Takeover.” Scheppele, whose faculty page describes her research as at the “intersection of constitutional and international law, particularly in constitutional systems under stress,” had lived in Hungary and Russia in the late 1980s as those countries transitioned from communist states to budding liberal democracies. Their respective experiments with democracy are far younger than that of the United States. Yet, Scheppele explained that, despite the age of our constitutional democracy, it remained susceptible to legalistic autocrats because of weaknesses in our own legal system. “We have not only a captured Supreme Court, but we have a captured Constitution.”

So, to return to Schumer, in an even narrower parabolic trajectory, if the Trump administration has not violated any orders of the United States Supreme Court, why do I feel scared now? Why do I think that Trump has already crossed the Rubicon? 

For Scheppele, that would be because Trump’s and his administration’s legal maneuverings around the Constitution are not simply clever manipulations of the rules of a game. No. Instead, these actions are a direct attack on the game itself, with the “game” being the values that undergird a pluralistic, democratic society: “the protection of rights,” “checked power,” “the defense of the rule of law, and liberal values of toleration, pluralism, and equality.”

We cannot defend our values and protect ourselves from legalistic autocracy through formal legalism and abstraction. In a participatory democracy, it is insufficient, for example, to wait for the Supreme Court to decide whether 8 U.S.C. § 1227(a)(4)(C)(i) grants the Secretary of State discretion to revoke student visas and imprison graduate students for exercising First Amendment free speech rights. We should be capable of saying that such actions are wrong today because such actions are antithetical to our values today. If we follow Schumer’s road, America will end, not with a bang, but with a strained citation to legal precedent.

Everyman Jones is just a regular guy in Newark, just like you and me.

Featured image: Lawrence Krayn, Instagram: Xquisite_Grit