Thursday, September 13, 2018

Local Legal and Political Ties in the Context of Economic Globalization

theatlantic |  Judges, who are mostly technical people, help weave a fabric of practices, rules, regulations, customs, agreements, and working arrangements—some local and some regional, some formal and some informal. The fabric, like that of Penelope, sometimes comes undone during the night; but we must simply continue to work on the problems before us. I have always liked FDR’s advice: “It is common sense to take a method and try it: If it fails, admit it frankly and try another. But above all, try something.”

Third, and finally, my legal examples suggest the importance of looking to approaches and solutions that themselves embody a rule of law. To achieve and maintain a rule of law is more difficult than many people believe. The effort is ancient, stretching back to King John and the Magna Carta, and still earlier. And the effort does not always succeed. I often describe to judges from other countries how, in the 1830s, a president of the United States, Andrew Jackson, when faced with a Supreme Court decision holding that northern Georgia (where gold had been found) belonged to the Cherokee Nation, is said to have remarked, “John Marshall [the chief justice] has made his decision, now let him enforce it.” Jackson sent troops to Georgia, but not to enforce the law. Instead they evicted the tribe members, sending them along the Trail of Tears to Oklahoma, where their descendants live to this day.

Not for more than a century, a period that included the Civil War and decades of racial segregation, would the Supreme Court hold, in Brown v. Board of Education, in 1954, that racial segregation violated the Constitution. Yet the country did not abolish segregation the next year or the year after that. When, in 1957, a judge in Little Rock, Arkansas, ordered Central High School desegregated, the local White Citizens’ Council, supported by the governor, rallied in front of the school, letting no black child enter. It took more than judicial decisions to end segregation. It took a president’s decision to send 1,000 paratroopers to Arkansas. It took Martin Luther King Jr., and the Freedom Riders, and the words and deeds of countless Americans who were not lawyers or judges. Today the public has come to accept the rule of law. When the Court decided Bush v. Gore, a case that was unpopular among many, and was (as I wrote in dissent) wrongly decided, the nation accepted the decision without rioting in the streets. That is a major asset for a nation with a highly diverse population of 320 million citizens.

We do not have to convince judges or lawyers that maintaining the rule of law is necessary—they are already convinced. Instead we must convince ordinary citizens, those who are not lawyers or judges, that they sometimes must accept decisions that affect them adversely, and that may well be wrong. If they are willing to do so, the rule of law has a chance. And as soon as one considers the alternatives, the need to work within the rule of law is obvious. The rule of law is the opposite of the arbitrary, which, as the dictionary specifies, includes the unreasonable, the capricious, the authoritarian, the despotic, and the tyrannical. Turn on the television and look at what happens in nations that use other means to resolve their citizens’ differences.

For my generation, the need for law in its many forms was perhaps best described by Albert Camus in The Plague. He writes of a disease that strikes Oran, Algeria, which is his parable for the Nazis who occupied France and for the evil that inhabits some part of every man and woman. He writes of the behavior of those who lived there, some good, some bad. He writes of the doctors who help others without relying upon a moral theory—who simply act. At the end of the book, Camus writes that
the germ of the plague never dies nor does it ever disappear. It waits patiently in our bedrooms, our cellars, our suitcases, our handkerchiefs, our file cabinets. And one day, perhaps, to the misfortune or for the education of men, the plague germ will reemerge, reawaken the rats, and send them forth to die in a once-happy city.
The struggle against that germ continues. And the rule of law is one weapon that civilization has used to fight it. The rule of law is the keystone of the effort to build a civilized, humane, and just society. At a time when facing facts, understanding the local and global challenges that they offer, and working to meet those challenges cooperatively is particularly urgent, we must continue to construct such a society—a society of laws—together.