W. Bush and the Rule of Law
August 21, 2002
By Steven C. Day
importance of the rule of law under the United States Constitution
has been on my mind a lot lately. That wasn't always true.
It would be nice, for example, if I could say that dedication
to the rule of law is what led me to the legal profession.
But it didn't. Desperation is more like it. The year was 1974
and the date of my graduation from college was bearing down
like a tornado racing across the Great Plains. Suddenly, I
was stricken with the realization that society now expected
me to become something new, something other than a university
undergraduate. Screw society – that's what my parents (a/k/a
my meal-ticket) expected.
This presented something of a practical problem: You see,
the world wasn't exactly beating a path to my door to take
advantage of my upcoming shiny new political science degree.
In fact, I could think of only three post-college options:
(1) I could drive a cab; (2) I could get a doctorate in political
science and then drive a cab; or (3) I could go to law school.
I took the third.
After graduation, I threw myself into the practice of law
with all the vigor of Rush Limbaugh ripping into a plate of
spareribs. This left little time for philosophical meanderings.
Thus, even as I worked as a small cog in the machinery of
the rule of law, I gave the concept itself little thought.
I guess I took it for granted.
Well, I'm not taking it for granted anymore. How can I, when
every day it's becoming more apparent that the man holding
the highest office in the land has little respect for the
concept? The pattern is painfully consistent: Is there a statute,
duly enacted by the Congress, that's crimping George W. Bush's
style? Perhaps some pesky little requirement having to do
with open records requests? No problem – just pretend it isn't
Or maybe the law mandates the release of the papers of a
previous presidential administration that may prove embarrassing
to certain members of the current administration (not to mention
to dear old dad)? Just say abracadabra – and poof – the problem's
It isn't as though ignoring the law is likely to cause Bush
any serious problems. It never has. This is, don't forget,
the same fellow who after joining the Air National Guard to
avoid going to Vietnam, simply "dropped out" for more than
a year without completing the required drills. Does anyone
doubt what would have happened if an average kid, without
Bush’s connections, had tried something similar? But concepts
like AWOL and desertion (not to mention a fast boat to Southeast
Asia) apparently didn't apply to the son of George Herbert
Next, of course, we have George W.’s not quite confessed
and not quite denied history of illegal drug use during his
"irresponsible youth." And let's not even get into the unethical
business practices (and likely outright criminality) of his
Harken Energy activities and the sweetheart Texas Rangers
deal. Then there's that little matter of subverting a presidential
election. In each case, Bush got away with breaking, or at
least badly bending, the law and came away smelling like an
oil covered and greenback sprouting rose. So why shouldn't
he keep right on doing it?
And boy, is he. In fact, judging from his actions, Bush appears
to believe that the events of Sept. 11 have transformed him
into a defacto dictator, with complete freedom to ignore not
just enactments of Congress, but the United States Constitution
itself. The list of examples keeps growing: Military tribunals
created by executive fiat, foreign nationals seized and held
in secret, American citizens imprisoned in military brigs
as "enemy combatants" with no right to due process, attorney-client
confidentiality breached without court order, and so much
And in almost every instance, these momentous actions were
taken without even a hint of congressional authority. Meanwhile,
the administration works to thwart virtually all congressional
oversight by invoking an extraordinarily expansive view of
executive privilege (a view diametrically opposed to the Republican
position during the Clinton administration).
Welcome to George W. Bush’s America, where we no longer have
a "government of laws and not men," but increasingly a government
of just one man (with a little help from dad's friends).
We have to ask ourselves what this means for our democracy,
already hobbled by the last election. The rule of law is,
after all, the life blood of any democratic system - what
separates true democracies, like the United States, from fraudulent
ones, like the old Soviet Union. The right to vote by itself
isn't ultimately the point: it's the right to have that vote
translated into controlling law that gives the process meaning.
When a president claims the privilege to simply make up the
rules as he goes along, this meaning evaporates.
It's the same sad story on individual liberties. James Madison
always worried that the Bill of Rights would become a mere
"parchment barrier," with little practical power to protect
individual freedoms. It now seems that Bush agrees with him,
although unlike Madison, he views this as an opportunity,
instead of a threat.
So, yes, the importance of the rule of law has been haunting
my thoughts lately. Maybe it's been haunting yours, too. The
question, of course, is whether it will ever haunt enough
of us badly enough that we will finally do something about
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