What Comes After Rule Of Law?

This morning at American Thinker James DeLong, a retired lawyer, reflects on his former profession in a thoughtful article:

The Honor of the Legal Profession

I feel somehow obliged to say that DeLong's title isn't intended to be facetious, and I really do highly recommend the whole article.

I've been saying since the SCOTUS' self-disgracing on Friday that the Court has delegitimized itself--indeed, that rule of law and even the republic are pretty well finished. DeLong's reflections on the legal profession run along those lines: How did things come to this pass?

DeLong begins by (mis)quoting "a familiar Latin aphorism": Inter arma enim silent leges. More or less: 'In times of war the laws fall silent.' He then suggests that the reverse is also true: "If law falls silent, arms will decide." In a sense it amounts to a chicken/egg type thing. Of course, when men resort to arms the law falls silent, but is it not at times the case that the laws first fall silent and only then do men resort to arms?

We need an aphorism expressing the complementary truth: "If law falls silent, arms will decide," because if process values are systematically ignored, then all hell can break loose. In a recent article, the Serbian-American author said "as someone who (barely) lived through a civil war, [I know that they] begin when a faction decides it can no longer pursue its goals through the political, legal or economic means, as they have all been foreclosed to them."

My professors, who had seen the rise of the great totalitarian states, the consequent World War II, and the tensions of the Cold War, were very aware of the dangers. They regarded reverence for process values as fundamental to the honor of the legal professional.

Judging by the current election controversy, the legal curriculum has been reinvented according to woke principles, because the current legal establishment is not just indifferent to process values, but screechingly opposed.

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The Supreme Court dismissal of the Texas complaint was in the same vein [as that of the 'woke' legal activists]. The ruling said Texas lacked standing to defend its citizens' interest in an honest election in other states. But every ragtag, foundation-funded group had been given standing to persuade judges to disrupt the election laws of many states. No coherent law of standing exists, and the doctrine can, without undue cynicism, be seen as a tool by which politicized judges play favorites. (See, e.g., Virginia House of Delegates v Bethune-Hill.)

A sign of the legal times is the concerted effort to shut down news that has not been approved by establishment connected outlets--how can law rule when truth is banned? Thus: ‘The Republic is dead’: Scott Adams censored by YouTube for violating ‘election fraud policy’. The tie-in to the collapse of rule of law in America was quickly grasped by Matt Taibbi:

"If you want a population of people to stop thinking an election was stolen from them, it’s hard to think of a worse method than ordering a news blackout after it’s just been demonstrated that the last major blackout was a fraud." https://t.co/nvH0isY6zn

— Matt Taibbi (@mtaibbi) December 11, 2020

Idea driven events have a way of snowballing and getting to the bottom of the hill from which they started their downhill path. With that in mind it's worth reflecting on the observations of the Serbian-American writer (quoted by DeLong) on where all this could lead. It's also worth reflecting on the fact that a retired lawyer should have turned to RT for honest opinion writing rather than to a mainstream media outlet in America. That has its own significance:

The Supreme Court had one last chance to keep the American Republic together. It failed.

The very same media that brayed for the past four years about how the 2016 election was somehow tampered with by Russia – never offering any evidence for that – have declared the 2020 one pure as driven snow, the most secure in history, perfect in every way. ...

The Silicon Valley tech giants, who in the run-up to the election censored and suppressed the story about Joe Biden’s family business deals overseas – that later turned out to be accurate – and slapped “disputed” warnings on Trump’s claims of electoral fraud the way they never did on ‘Russiagate,’ are now openly censoring any notion that 2020 wasn’t perfectly legal.

You’re now forbidden to say that. Soon you won’t be allowed to think it. In America, the country that invented the constitutional amendment guaranteeing the freedom of speech and thought!

Democrats and their allies in the media and Silicon Valley were eager to declare the Texas motion “seditious.” One influential House Democrat said any Republican backing the lawsuit was “engaging in rebellion against the United States” and should be stripped of their office under the 14th Amendment ...

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Odds that the Nine would actually side with Texas and block the electors were always slim. The justices are notoriously allergic to rocking the boat – unless the case involves discovering ever-expanding constitutional protections discovered in “emanations and penumbras,” from abortion to Obamacare, that is. The court could have resorted to any of these mental gymnastics they have previously employed to legislate from the bench in an effort to reach some kind of Solomonic solution.

Instead, they literally abdicated their constitutional responsibility – and sent a message to 75 million Americans who voted for Trump that their votes don’t matter. Worse, that the System of government that supposedly made the US special, takes a back seat to the media, Big Tech and the consensus manufactured by people who tend to riot when they don’t get their way.

One can only guess as to how they reasoned. Perhaps that Republicans are law-abiding and won’t revolt – especially since much of the GOP has been more than willing to toss Trump overboard and return to its traditional role of the Democrats’ loyal opposition. 

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As someone who (barely) lived through a civil war, I know a thing or two about not just how they’re fought, but also how they break out and why. The past month has made me realize that the US has actually been fighting one already, probably since just before Trump was elected. In keeping with the times, it has been fought in the legacy and social media, in the courts, in the ballot-counting back rooms, and even on the streets, but hasn’t quite gone “kinetic,” to borrow the Pentagon parlance.

Civil wars begin when a faction decides it can no longer pursue its goals through the political, legal or economic means, as they have all been foreclosed to them. Can anyone argue, with a straight face, that no Trump supporters feel like this?

Whether rightly or wrongly, they believe the election was stolen and that the people who did so got away with it. How likely are they to trust any election going forward? About as much as they trust the media, the corporations, or the courts right now. 

The Supreme Court had a chance to defuse this ticking time bomb. Instead, they channeled Pontius Pilate and said “not our problem.” That’s how Bosnia happened. I hope and pray that doesn’t happen here, but fear that it shall.