Essay #1 — Law, Power, Language, and Meaning

The following constitutes a series of essays — to be published weekly — on The Rule of Law in the United States. In these essays, I write, not from a legal perspective, but from the perspective of philosophy, politics, and history.

Reconstitution

The theme of this collection of essays is Reconstitution. Our national political institutions — particularly Congress, of course, but also including the law itself — have experienced an ongoing and debasing crisis of political legitimacy, perhaps the most serious since the New Deal. In response to this crisis, these political institutions have essentially ceased to function. And so this is the question I pose. Under the shadow of this threat, how can we refresh our relationship to the United States Constitution so that it continues to support the rule of law in the United States in the 21st century?

In the United States, of course, we cherish the rule of law because — when properly conceived, interpreted, and applied — the ideals that shape our identity as a nation flower. We don’t, and have never, imagined the rule of law to be an end in itself. However, Americans assume perhaps too lightly that the rule of law is inherently a good thing. We associate rule of law with equality under the law, which supports the principles of fairness and justice.

In reality, law and power seed each other, and the relationship between law and power determines whether political institutions actually do embody equality, fairness, and justice. Clearly, many governments with a firm grip on the law use it only as a lever to separate themselves from their citizens. In both autocratic states and failed states, the law communicates its degradation by serving only the ends of power and the powerful, who apply it like a boot to the neck of the people.

This is how Orwell characterized the purest form of this kind of law — law entirely subsumed by power — in 1984.

We know that no one ever seizes power with the intention of relinquishing it. Power is not a means; it is an end. One does not establish a dictatorship in order to safeguard a revolution; one makes the revolution in order to establish the dictatorship. The object of persecution is persecution. The object of torture is torture. The object of power is power. Now you begin to understand me.

I don’t believe this degradation or malformation of the rule of law is inevitable. Nonetheless, in this series of essays, Orwell serves as my muse because he arrives at the heart of the matter with immediacy and clarity.

Orwell also elevated our awareness of how we can measure the degradation of the rule of law by the uses to which we put language. In its ideal form, the rule of law requires transparency. Transparency is largely a matter of language. The government should not lie to or conceal information from its people. Citizens should enjoy unfettered, uncensored, unmonitored speech with each other.

The premise behind this commitment to linguistic transparency is that words are not abstractions. Within a political community, language is like food. Open discourse feeds and nourishes the civic body of the nation. We associate the most significant moments in our history as a nation with vigorously contested debates — between Federalists and Antifederalists, between Lincoln and Douglass, between Clarence Darrow and William Jennings Bryan. Open discourse maintains the delicate balance and relationship between law and power. When language distends and bloats discourse, when words lose meaning, our civic institutions wither and decay.

My next essay examines the United States Constitution as the instrument for preserving and organizing our relationship to the core values of our identity as a nation and as citizens. I specifically focus my attention on those legal conservatives (with a particular focus on Supreme Court Justice Antonin Scalia) who narrowly frame judicial review, and hence the rule of law itself, within the literal meaning of the words in the Constitution. I argue that this narrow perspective debases our understanding of the Constitution by separating, in the manner of Biblical fundamentalists, the Word from the Flesh of the Constitution.

Words must not be their own referent. Reconstitution requires us to engage the Constitution, not as a linguistic fetish, but as the soul of an embodied nation. Our history is the Constitution. Our institutions and practices are the Constitution. Our civic discourse is the Constitution. Through our history, institutions, practices, and discourse, we continually clarify and define who we are as a single people and to what values we commit ourselves as a nation. The rule of law in the United States will thrive when we continually connect the Constitution as our foundation legal document to the Constitution as the soul of our embodied nation.

Evidence-Based Government

These essays on the rule of law in the United States traverse the history and development of our political and social institutions, encompassing both formal government bodies and social institutions such as slavery, corporations, labor unions, schools, and churches. I examine the ideas of our most important leaders, including the Founders, but also those such as Abraham Lincoln and Franklin Roosevelt who rose to power when destiny required a grasp of the world-historical significance of our nation’s trials at specifically pivotal moments in time.

Via demographic analysis, I interpret the meaning of our relationships to other nations and peoples and to our own heralded diversity for our understanding of the rule of law. Finally, I tackle the effects of industry, science, and technology on our perceptions of ourselves, our understanding of our core values, and subsequent consequences for our legal institutions and our commitment to the rule of law in its purest, most uniquely American form.

In this penultimate section of the collection I introduce the concept of “evidence-based government,” which greatly intrigues me as the appropriate framework for the rule of law in the 21st century. We live in an age of data. An abundance of data, as with an abundance of law, is not an end in itself. If too much law can lead to bureaucratic befuddlement and empty discourse, too much data can result in technocratic arrogance — and empty discourse.

Nonetheless, the concept of “data-driven” legal interpretation, when anchored to clearly defined “constitutional” values, provides a basis for achieving the civic and institutional goals of those values. Using the concept of evidence-based medicine as my inspiration, I am curious to discover whether evidence-based government can help to balance the relationship between law and power, heal the body politic, and clarify the meaning of our words so that our national values can flourish in an age far removed from the world of our Constitutional fathers.