Law and Politics

We’ve received a number of intelligent and interesting criticisms that merit a response, so we like to use a post from time to time to respond to our critics. One of the more consistent criticisms we’ve been receiving is about our attitude toward the rule of law (for example). Aren’t we rejecting legal and judicial means of reigning in the abuse of executive power? Why are we so hostile to law?

In fact, law has never been our target here. To be clear, the rule of law is an important thing. Societies that are not governed by the rule of law tend to be very unpleasant places to live. However, legality, in and of itself, is no basis for political criticism. What we are against is making the law the exclusive perspective from which to criticize politics. This seems like a bad idea to us for at least two reasons.

First of all, constitutionality is an ineffective foundation for a critical political stance, because many things we oppose may be perfectly constitutional. The NSA wiretapping issue is a perfect example of this. It may have been illegal for Bush to carry out those secret wiretaps. But Congress certainly has constitutional authority to impose them if it wants to. The left has based its entire argument on the fact that Bush doesn’t have the legal authority to act alone. But what would happen if Congress simply decided to authorize some version of what Bush is doing? (And they might) Then, this legal argument would have no ground to stand on. The constitution would permit any number of atrocious and objectionable policies. Why should we adopt it as the basis for what is acceptable and what isn’t?

Secondly, the exclusive concern with the law detracts from the need to make substantive arguments about the things we really care about. It may be easier to argue against a certain policy because it’s illegal. But that should not replace attempting to persuade others on the basis of ideology and political principles. Adherence to legal procedures is important too, but the left’s overwhelming reliance on them signals a reluctance to engage with their fellow citizens on matters of political analysis and ideological principles. Indeed, the only way to decide between good and bad laws is to debate the political principles that underlie them.

On this blog, we’ve suggested at least two major points for debate: as an empirical matter, the terrorist threat is preposterously inflated, and as a political principle, we reject the elevation of security over liberty (more on these to come). Together, these are substantive reasons for criticizing the war on terror as a whole, both the illegal and legal aspects of it. We agree with liberals that the state cannot violate the law. But this concern with legality is not the same as a principled political stance, and juridical strategies cannot replace the need for debate and persuasion in the public sphere.