From a State of Nature

Does anyone still believe in the rule of law?

“I am not sure I believe in the rule of law …”

Some weeks ago I was sitting, again, at a handmade wood-slab and bent-metal high top, this time at Helena’s newest tap house. Montana’s former governor, Steve Bullock, opened it with his brother at the start of his current off-season from politics. It is a stage for local political chatter. I was sipping a reasonable IPA as part of a post-work “beers” session with the staff and interns from the public interest law firm where I now work (I briefly practiced law before going into technical training and curriculum development during the first dot-com boom). One of the interns, a tall and earnest young man from somewhere back east, was seated next to me nursing a dark and frothy ale of his own.

He (I presumed) and I had never spoken all that much up to this point so I turned and asked the most obvious open-ended question: “so, where are you going to law school, and why did you choose law?” He paused, seeming to consider not how, but whether to respond to me. I apparently passed some muster, though, and he began filling me in on his story. He claimed “labor and politics” as the background for his rural, rust belt family, and said he is attending New York University Law School. Then he added “But, I am not sure I believe in the rule of law.” This comment seemed … odd, and willfully provocative.

First, it seemed odd because he was a law student working at a law firm on a legal internship doing legal research and drafting legal memos about Montana law for a few weeks before heading back east to finish his final year of law school. It seemed to be a bit, um … privileged? … for someone to make it to the summer before their third year at the third most expensive law school in America yet still be nurturing thoughts like “should my career choice even exist?” Having stared down my own law school debt, I could not help wondering who would be footing the $400,000 or so bill, plus financing, for this young man’s tuition, room, board, books, travel expenses, and so on.

Second, it seemed odd that someone whom I understood from past office comments to be a Homo like myself (though he would likely self-identify as Queer) would seem so ready to discard the social and political structure that protected him from living in a society that could normalize harming people like us. As in, the far more dangerous America I came out into 40 some years before this conversation, a few decades before he was born. Back when gay sex was a felony. Back when two men holding hands in public risked assault. Back when “gay marriage” was a laugh line about who would be wearing the dress. Back when being gay was a legally valid and enforceable cause, in and of itself, to be fired or evicted. Back in a Montana which has rapidly evolved into someplace very different over the span of my 58 years, specifically because laws now exist to include, protect, and empower people like he and I to live a life straight people take for granted. Laws many of us fought long and hard to win. Laws which now allow me to call my husband “husband,” and allow us to share the several hundred legal rights and responsibilities that accompany this term. Laws which support and enforce all of this social progress with the power and authority of our state and federal governments, even though many still do not like us. Even though Christian Nationalists would gleefully haul America back to the quite recent days when Homos could be prosecuted simply because we dare exist.

Leftists complain of the way many Americans believe and vote against their own self interest. Leftists often fail to apply their own critiques to themselves.

Walking under the rule of force

I like long walks. I walk a few miles nearly every day for all the usual reasons: clearing the mind, seeing the sights, counting the steps. One of the benefits of traveling for work as much as I once did is that I have enjoyed hours-long strolls around Hong Kong, Delhi, Istanbul, Bangalore, Tokyo, Buenos Aires, Mexico City, Rotterdam, Wellington, and more. When you are a business traveler you do not typically have much time to visit big tourist spots. What you have is enough time each evening to find dinner and walk around for a while. So I did. I would wander old neighborhoods and business districts until my feet hurt, then go back to my hotel to prep and rest for the next morning’s class.

Istanbul felt like Europe, but with hookah bars and seemingly competitive muezzins broadcasting sonorous Arabic prayers across the metropolis five times a day, starting at sunrise. Hong Kong was so hot and damp that street-side shops could physically coerce you to turn and step inside just by blowing aggressively cold air onto the street. Old Delhi was a charmingly decrepit madhouse redolent of freshly ground spices, diesel, and poo.

In the years when I was in these three cities, an accusation of homosexuality could have had me arrested. So, I behaved accordingly. I did all I could to meet and talk with local Homos. Their stories ranged from stunning to grim. In Hong Kong I was not allowed to enter the gay bar I had walked three miles to find, because I am white (the doorman made this clear). In Istanbul, I found my way to a secretive gay bar near Taksim Gezi Park. They played old disco tunes intermixed with what I would have called belly-dancing music, at an oddly low volume for a gay bar. After ordering and nursing a beer for hour, the bartender — who knew far more English than I knew Turkish — introduced me to a tall, bearded man who was on leave from his army post in Kazakhstan. We all talked as best we could using sign language, my stumbling German, and an early version of Google Translate on my phone which understood some of his Russian after he tweaked my keyboard settings. This Kazakh soldier had no safe access to email or the web. He wanted to live in Germany. He was afraid to go home at the end of his leave. I wonder if he did. I wonder if he is still alive.

Damned Liberals.

It has become academically fashionable in recent decades to reduce virtually all public thought and expression (“discourse,” in academic jargon) to linguistic power games. Contemporary soft-science academics view the world through a so-called “post-modern, deconstructionist” lens in which nothing is universally true, only relatively true, and only for so long as the strongest relevant power agrees to enforce a given “truth.” Said differently, many current academics currently believe nothing is true but power. That power itself is truth.

In the wake of a few centuries of religious war, European academics took a different view during the Enlightenment era leading up to the American Revolution. Old-world scholars (Locke, Rousseau, etc.) saw truths like human dignity to be self-evident from our individual and collective capacity for awareness beyond mere stimulation. They looked over the wreckage left behind by warring religious mobs and the autocrats who drove them, and deemed populist political power to be too dangerously crude an instrument to be left unchecked. They argued that while power indeed comes from the people, it must be carefully yoked to the equal protection of all so that each person could freely pursue their own truth (or “happiness,” as Jefferson ultimately put it), without harming others. The resulting framework of freedoms protected by an interlocking system of checked and balanced powers is the functional heart of liberalism.

The constitutional laws at the root of the American legal system were heavily influenced by these liberal philosophies. The constitutional framers saw representative democracy as the practical embodiment of a social contract by which individual human dignity — as articulated by a set of “natural” yet vulnerable rights (e.g., free speech, free assembly, habeas corpus, etc.) — would be legally protected in exchange for citizens undertaking corresponding responsibilities (e.g., voting, paying taxes, obeying the law).

No one had formed such a government before. Up to that point in history, no one had yet dared try to make laws greater than the strong men whose hierarchies had controlled public access to food and force since hunter-gatherers first settled down to farming. No one had ever yet tried to elevate the participatory and equally-applied rule of law over the far more ancient but inherently unequal rule of force.

To replace kings with constitutional law was a far more radical act than any political riot or big art-party off in some desert. For such a revolutionary system to work in a generally stable way everyone had to have the same rights and the same responsibilities, while also having a say in how the government supporting and enforcing it all would go about its business. Otherwise, jealous and judgmental popular factions would rise up yet again, and the ancient religious wars would return.

Because humans are wired to want a better world for our children, this radical notion of separating political power to protect basic rights spread like butter, for a while. Just a few short centuries later, many more nations than just the U.S.A. operate as representative democracies — of various forms and various degrees of effectiveness — governed by laws guaranteeing basic rights and freedoms.

Still, more nations do not. While different organizations measure “freedom” differently, a very large majority of the 8.2 billion people on our planet live under governments in which wealth and status still trump the law. There have been five military coups in Africa during the last three years alone. India has fallen to a populist theocracy. Russia is ruled by oligarchs who invade their neighbors. China holds hundreds of thousands of its Turkic Uighur minority in vast prison camps and has crushed the ancient Buddhist culture of Tibet inside its borders (it still thrives in its wide diaspora). Most of humanity lives in places where might makes right. Where truth is nothing more than the power required to force your opinion on your neighbors, by any means necessary.

Yes, the ever-evolving frameworks of personal freedom maintained by Western civilization can be endlessly criticized, and should be. That is how they evolve. But, speaking as a Homo who vividly recalls a very different world just a few short decades ago, I do not want to live in a society where I have nothing to protect me but whatever guns and bullies I can buy. And yes, one can (snidely and reductively) argue that cops are nothing but paid-off bullies. Except, cops work for all of us. All public officials in a constitutional democracy work to a common set of rules to which any one of us can appeal.

If we do not like the laws or the ways they are working, then we can do the political work needed to make our world better. Many of us have done this work, and still do. Which is why, like many other hard-won changes taken for granted by a culture scrolling for its next dopamine hit, gay and lesbian couples can now be legally married. Because equality. Something I could never have imagined 40 years ago when I came out as gay during the springtime of my senior year of Catholic high school.

As for queer law students racking up huge law school loans while questioning whether they really believe in the rule of law at all, well … we all have the right to ignore our own history and re-learn old lessons the hard way. Damn me as a liberal, but I would far rather live under the rule of law inside a flawed but evolving constitutional democracy than return to the days of mobs and kings, no matter how rich or fashionable they may be.