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George W. Bush and the Rule of Law
August 21, 2002
By Steven C. Day

The 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 there.

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 solved.

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 Bush.

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 more.

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 it.

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