Reasserting Self-Government and Sovereignty Won’t Be Easy

We are all aware that our politics is broken. There is more hate dividing Americans than in recent memory, and especially is there corrosive ire directed at our president and those he has appointed, particularly to judicial office. If our politics is riven, however, the cause may be deeper, and it may lie in a division over the nature of our law.

For almost two generations our law schools have been dominated by the theory, usually labelled “legal realism,” that law is inherently uncertain, and that it is, essentially, nothing more than the will of those in power, whether they are legislators or judges.

One emerges from law school with a skepticism about whether there really is any such thing as the rule of law, or whether, instead, law is constantly recreated and modified by judges doing what they can to ameliorate the still-existing injustices in American society.

The paradigm cases for many lawyers and law students are Brown v. Board of Education (1954), in which the Supreme Court unanimously ordered an end to state-mandated racial segregation in the public schools, and Roe v. Wade (1973) in which a 7-2 majority declared that there was a Constitutional right to terminate pregnancies before fetal viability.

Both of these decisions flew in the face of existing precedents, and both, whatever their merits as advances in the cause of social justice, tended to reinforce the view that it was inevitable and right that justices made law rather than simply interpret it. A few sober voices in the academy and on the bench recognized that our historic claim to be a nation governed by laws and not men was at risk, but in the excitement of possible reform and eradication of discrimination these protests were generally ignored.

The heroes of the law and the legal profession became men like Earl Warren and Anthony Kennedy—those who refashioned constitutional rules to accord with their personal ideas of fairness and equality. What happened in the courts, really, was part of a broader phenomenon dating to the Progressive period and brought to fruition in the New Deal with the triumph of the belief that experts, particularly those in the federal government, could refashion American society in a more equitable and just manner. This led to the rise of what is now generally called the “administrative state,” where Americans are governed not by their elected representatives, but by an elite bureaucracy operating with considerable discretion and very little legal control.

The Elites and the Bootlicker Hacks Strike Back
The election of Donald Trump, we are coming to understand, represented a reaction on the part of ordinary Americans, those whom Kurt Schlichter calls “militant normals,” and Hillary Clinton called “deplorables,” to the loss of what they believed to be their constitutionally guaranteed right of self-government. When Donald Trump urged that he be given a chance to “Make America Great Again,” his supporters understood he was promising to restore the rule of law and put an end to the usurpations of the federal leviathan.

It is no wonder, then, that the administrative state (or the “deep state,” as many of Trump’s supporters call it) struck back, and thus the appointment of a special counsel, Robert Mueller, with a mandate, really, to undermine and ultimately to destroy the Trumpian threat to government by elite technocrats.

The attack on the president is not conducted simply by elites who still control the levers of the bureaucracy. Prominent Democrats, sensing an opportunity to regain power they have lost in recent elections, have determined that the disgraceful political tactic of branding the Republican president as a corrupt and oligarchic racist (with the new spin of being a Russian puppet) might profitably be employed in the effort to enlist the mainstream media in this coordinated enterprise of destroying the threat to their hegemony.

Mueller, the Steele dossier, the corrupt activities of James Comey, Andrew McCabe, Peter Strzok, Lisa Page, Sally Yates, the Clintons, Susan Rice, and others are all signs of this struggle, but it is important to see all of this for what it is—a flaw in the theory of progressive politics.

Progressives believe that if only a little more expert tinkering can be done, an earthly paradise is within reach. This explains the constant effort to pass campaign finance reform legislation, for example, which has actually created a web of incumbency protection regulations carefully calculated to hurt outsiders such as the president, who now finds himself enmeshed in a dubious assertion of violating those regulations by payments to purported paramours.

A Hell of Our Own Making
Setting aside the Orwellian implications of our campaign finance regulations (and many of the other suspect laws to which the special prosecutor has had to resort) which have resulted in a situation where virtually anyone can be the subject of a federal prosecution, we ought to recognize that it is time to reject the belief that all we need is more law and regulation to produce the just society.

The late acerbic Grant Gilmore—a Yale law professor, no less!—was quite correct when he remarked, “In heaven there will be no law, and the lion shall lie down with the lamb . . . In hell there will be nothing but law, and due process will be meticulously observed.” We are now in Gilmore’s hell, one of our own making.

We cannot legislate or regulate our way to nirvana, Valhalla, or Utopia, and what the federal leviathan tends to create is a corrupt class of political parasites, demagogues, and miscreants. Exhibit A is the team of Mr. and Mrs. Clinton, as Peter Schweitzer demonstrated in his book, Clinton Cash. This is why the framers disdained the idea of professional politicians, and the election of a non-politician, Donald Trump, as President is a sign that many Americans still understand the wisdom of the framers’ insight.

With the Democrats about to be in charge of the House of Representatives, with its attendant subpoena and investigative powers, we can expect that party—the party of the bureaucracy, the deep state, and regulation—to do all in its power to prevent the Trumpian Counter-Reformation from succeeding. With the mainstream media behind them, and with the still-powerful prerogatives of the deep state at their command, they will be positioned to threaten impeachment of the president, and, in any event, will be able to harass and hound him in innumerable ways.

We are, then, in the midst of a constitutional and legal crisis, and in a battle for popular sovereignty itself. In a world in which government by impersonal, entrenched, and isolated bureaucracies is increasingly common, this country once again has an opportunity to preserve our position as a bastion of liberty and freedom. This will only happen, however, if the American people themselves resist those who would wrongly use tainted legal institutions to preserve their power and influence.

The framers understood that ultimately the constitutional scheme they bequeathed us would only survive if the American people possessed and employed the virtue necessary for self-government. That virtue must now be used properly to restore the rule of law, to eradicate the corruptions of the deep state, and to return control over their lives to the American people themselves.

Photo credit: iStock/Getty Images

About Stephen B. Presser

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern University’s Pritzker School of Law, and the author of “Law Professors: Three Centuries of Shaping American Law” (West Academic Publishers, 2017). In the academic year 2018-2019, Professor Presser is a Visiting Scholar in Conservative Thought and Policy at the University of Colorado, Boulder.

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