Strengthening Constitutional Self-Government

No Left Turns

Rule of law vs. rule by law

Here’s a too-clever-by-half lawyerly attempt to criticize the Bush Administration’s DoJ. The author leaves out both politics (elections) and constitutionalism (with the tensions noted so well here). Stated another way, he assumes (either simplistically or politically) that the rule of law is merely mechanical, not also human and prudential (as both Hobbes and Aquinas, cited by the author, recognized). The example I give my students, and one that they immediately understand, is that even police officers make judgments about how to enforce the posted speed limit, subject as well to directives from their higher-ups, who occasionally call for stricter or looser enforcement.

Hat tip: MOJ’s Rob Vischer.

Discussions - 5 Comments

Joe: Perhaps your students can understand your point because they're not law professors!

Joseph: I think you're unfair to Tamanaha. His emphasis on "good faith" seems pretty "human and prudential" to me. It can't be the case, in the real world, that the main reason we don't have fully partisan law enforcement is the threat of electoral defeat of political appointees. The point, I think, is that there are norms of professional allegiance to law that actually do permeate institutions like the DOJ and can be encouraged or discouraged.

Or, to put it a slightly different way, even if there is a need for a Machiavelllian executive within constitutionalism as Mansfield argues, that person operates within a dense field of regular practices within the executive branch itself. The executive can certainly mow them down. The difference between a good executive and a bad one might be judgment about when that move is necessary. Bush's record is spotty.

Brett,

You're right that law enforcement can't be thoroughly partisan, but neither is it without some political flavor. Consider the ambitious D.A.'s who use their "law enforcement" efforts as springboards to higher office.

I would also note that it's probably a good guess that people who choose to make a career of "public service" are probably going to regard government as a good, an attitude more at home among Democrats than among Republicans. This is not to say that they're "partisan," simply that they may not be simply and straightforwardly non-political. In making this argument--that the permanent bureaucacy in almost any federal agency is going to be oriented to a status quo, typically established in the first place by Democrats--I'm saying nothing new. Alan Ehrenhalt made a version of this argument in The United States of Ambition, and others have made it, in scholarly and partisan ways, elsewhere.

Well, this public servant vote Republican more then Democrat and solely votes Republican when it comes to national races.

Hey, Joseph:

You and Tamanaha are on the same page in one respect, then. A thoroughly partisan law enforcement apparatus would be a bad thing. Some partisanship will happen. The question is how to avoid too much of it. Respect for the professional integrity of career DOJ folks is part of that.

I'll defer to the data, if there is any, on partisanship, but I'm not convinced that it is more Democratic than Republican to believe that it is worthwhile to dedicate your professional life to making sure that the law is enforced (as opposed to, say, that housing programs are administered well).

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