Members Only | December 20, 2022 | Reading Time: 3 minutes

The only way to preserve the rule of law is by preserving democracy

Most people have it backward.

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On Monday, the J6 committee referred the criminal former president to the Justice Department for criminal prosecution. That’s a BFD. 

The Congress has never done that, as it had never twice impeached a president. Perhaps Donald Trump will be the first former president indicted for “the crime against democracy.”

Don’t count on it.

I don’t mean to be cynical or fatalist. That’s not my intention. I hope Trump is indicted. I hope Trump is convicted. He deserves it all.

Nothing in human affairs happens independent of human agency. If Trump walks, that won’t be a failure of justice or the rule of law. It will be a failure of democracy.

But I don’t believe indicting Trump is what’s supposed to happen. I don’t believe justice will prevail simply because we believe it will.

Nothing in human affairs happens independent of human agency. If Trump walks, that won’t be a failure of justice or the rule of law. 

It will be a failure of democracy.

If Trump walks
What are you talking about, John? This shouldn’t have anything to do with politics. The evidence is damning. If Attorney General Merrick Garland had the guts, Trump’s indictment wouldn’t be in question.

Maybe, but I think the AG is doing what we would otherwise expect him to do, which is to pay careful attention to democratic politics. 

Garland knows that lots of Americans don’t see any problem with Trump’s attempted paramilitary takeover of the US Congress. They’re fine with political violence as long as it’s the right kind. Democracy contains multitudes. Fact is, we the people includes terrible people.

We tend to see democracy through rose-tinted glass, but fact is, democracy’s greatest enemies come from the inside. I don’t mean in the form of armed insurgents. I mean in the form of normal voters.

 


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In 2020, more than half the electorate voted for Joe Biden. They voted for democracy. That’s good. But nearly half voted for Trump. They voted for the restoration of the white-power order. That’s bad.

So before we start telling ourselves what’s supposed to happen given the overwhelming evidence against Trump, let’s remember there’s nothing outside democratic politics. The only thing we’re supposed to do in a democracy is fully engage in it. There is no umpire in the sky.

If Trump walks, it will be because our democracy wanted him to.

Un hun
I have noticed that the debate over Trump’s crimes has an annoying habit of separating democratic politics from the rule of law, as if the rule of law exists apart and above democratic politics. It doesn’t. 

“If Trump indeed fades and does not become president again, the Jan. 6 committee’s referral will have had some role in the process,” wrote Bloomberg’s Noah Feldman. “That should be the highest priority for anyone who cares about democratic elections. The only way to preserve democracy is by preserving the rule of law.”

Un hun. 


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It’s like Feldman knows there’s nothing outside democratic politics but avoids saying so, because saying so would mean the rule of law is a product of democratic politics. Moreover, saying the rule of law is a product of democratic politics would be a kind of confession: That the preserving the rule of law is secondary to preserving democracy.

That’s impossible for those of us who distrust democratic politics. They want absolutes, fixtures, eternals – things that will never change over time. They cannot tolerate the world as it presents itself to us, so they turn to the rule of law as if it were an anchor in stormy seas. 

Sorry, there is no anchor deeper than consensus.

In his avoidance, Feldman suggests something else – which I think is a serious problem. Upholding dogma – eg, “no one is above the law!” – is so much easier than the dirty business of democratic politics. If we want a better democracy, we need more people in it who want it. 

Democracy doesn’t depend on the rule of law.

It depends on democratic politics.

Means, not end
It should now be clear that “the only way to preserve democracy is by preserving the rule of law” is wrong. Indeed, it’s the opposite. The only way to preserve the rule of law is by preserving democracy.

The highest priority for anyone who cares about democratic elections should not be, as Feldman argued, preserving the rule of law. It should be full engagement in democratic politics. It should be raising awareness of the fact that we the people are the problem and the solution. There is no ultimate sovereign above and beyond us.

Feldman made the point himself.

He said the J6 committee can’t indict Trump. Only the Department of Justice can. But the committee can drain whatever legitimacy that he has left. It can provide cover for the special counsel investigating the Mar-a-Lago affair. Its report can serve as a warning for future presidents who dare disrespect the will of the American people.

The J6 committee has shown us how to do democratic politics. 

Defending the rule of law was a means, but not the end.


John Stoehr is the editor of the Editorial Board. He writes the daily edition. Find him @johnastoehr.

3 Comments

  1. Bern on December 21, 2022 at 6:05 am

    “The highest priority for anyone who cares about democratic electrons ”
    is probly a typo, but I’m charmed by the idea of electron bias, so maybe…

  2. Bern on December 21, 2022 at 6:30 am

    Also, I think I’m with you on the basics of the premise, but can you flesh it out a bit more? Because the very sort of structural wrenches in the works (freakish gerrymandering, leading to vote deflation), voter scrutinies (leading to vote prohibition and/or negation) and refusal to adopt/accept 20th century voting technology (ensuring weaponizable legal challenges (and worse) during delayed vote counting) spring directly from the primary ‘democracy laws’ (the Constitution) that strung the country together in the early days. The founding docs were emphatically NOT democratically determined, but what do we say then to the folks so affeared of a constitutional convention that we effectively have forsaken the possibility of democratically updating them?

  3. Dan Rahm on December 26, 2022 at 11:49 am

    Well said — thanks

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