Protecting The Rule of Law Against Donald Trump

The rule of law is traditionally contrasted to “the rule of men.” The contrast captures the difference between societies in which the awesome power of governments to send men and women with weapons to order their people about is governed by general rules, laid down in advance, and enforceable against government officials who would abuse their power, and societies in which government violence is deployed at the whim of powerful officials without such constraints.

That’s from “The Trump Threat to the Rule of Law and the Constitution,” an essay by Paul Gowder, a political theorist and law professor at the University of Iowa. The essay sets out the idea of rule of law, the threats to it, and the “red flags” raised by the Trump administration (such as his private security force). Towards the end of the essay, Gowder talks about how to prevent the dissolution of the rule of law under Trump, just in case “Donald Trump either intends to ignore the Constitution and the rule of law, or will be impulsively motivated (or manipulated by the likes of Bannon) to do so.”

He first lays out two basic principles:

  • First, we must strengthen the tools that the public at large can use to coordinate resistance to illegal government activity as well as private antisocial behavior motivated by Trump’s interests.
  • Second, we must deprive Trump, as far as possible, of ways to deliver money to his friends or violence to his enemies independent of ordinary government institutions and public oversight.

Here are some excerpts from Gowder’s elaboration on how to follow through on these principles:

  • refuse to succumb to preference falsification—to the impulse to conceal opposition to the administration out of fear of retribution. Opponents of the regime must have the courage to ignore the threats from pro-Trump thugs and motivated law-enforcement abuses now, when they’re relatively mild. A visible and loud opposition is self-reinforcing…. The thing about the dispersed and coordinated resistance to political violence, hate crimes, and government overreaching is that it gets stronger with practice.
  • aggressively use the institutions of liberal democracy that we do control to sanction antisocial behavior. Jurisdictions controlled by opponents of Trump must make the investigation and punishment of hate-crimes, alt-right harassment, and similar behaviors a top priority—those who would engage in violence, or criminal activity that is a precursor to violence (stalking, hacking, doxxing, etc.) against opponents of the regime must instantly learn that they cannot act with impunity, and those who might otherwise be intimidated by the prospect of these acts need to learn that they will be protected… Resistance communicates to defenders of democracy that they too can safely resist, and communicates to enemies of democracy that they cannot safely attack.
  • work harder to rebuild our strong cross-ideological civil society. On an individual basis, leftists and libertarians should show up at things like events sponsored by conservative churches, and conservatives should be more eagerly welcomed in (again) the universities, in the mainstream media, and other cultural and social organizations dominated by non-conservatives. Social bonds facilitated by civil society are a key ingredient in building interpersonal trust, and coordinated opposition to anti-Constitutional acts by the Trump administration or to private terror by his allies in the “alt-right” will require cross-ideological trust between conservatives of good faith and leftists and libertarians.
  • build independent media organizations that can be credible to people who may not be Trump supporters, but who share the suspicion of his supporters toward existing institutions.
  • make vigorous use of existing transparency and anti-corruption institutions while they exist. It will take time for institutions like the GAO, the Freedom of Information Act, and the Congressional subpoena process to be rendered ineffective. In the meantime, we should be using these tools to demand and publish information, particularly about financial transactions involving Trump, his organizations, and his allies. We should also be downloading all available open government data online and storing it in offshore servers, ideally with “a clear chain of custody.”
  • focus political advocacy on a few key nonpartisan areas. Trump’s business enterprises and private security forces are two nonpartisan issues of extreme importance to the rule of law. Congressional advocacy efforts should be focused in the first instance on the passage of laws automatically divesting the President and his immediate family of outside business interests, and forbidding the President from having any armed employees who are not an official organization of the Federal government.

Read the whole thing.


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7 years ago
7 years ago

I’m glad to see Paul’s good work get some attention here. Though it was written pre-Trump, and so not addressed to the current situation, let me also put in a recommendation of his recent book, _The Rule of Law in the Real World_, from Cambridge University Press. The book will be the subject of an author-meets-critics session at the up-coming Central APA meeting in Kansas City, with comments by Chad Flanders, Robin West, and Colleen Murphy, as well as replies by Paul. (The session is sponsored by the APA Committee on Law and Philosophy.) It should be of interest to anyone concerned with the rule of law.

7 years ago

I am appalled by Trump’s actions, scattered philosophy, petulance, vindictiveness and old boy attitudes. But still have to ask, suppose a similar attack were perpetrated on Obama? Would we all not jump on board to say this was beyond the pale? I am so sick of the “when we do it, it’s great, when they do it is fascism or communistic.” Egad, let’s get past this and find a way of working together with out name calling.

I’m a geezer so this won’t be my America years in the future, but you younger philosophers and people, do you really want the head-on never-give-an-inch style we have now to continue? I hope sometime a return to civilized compromise for the best interest of the country will replace, “How can I vote to get elected and how can I stir up the worst instincts of the people to win.”