Marshall’s Faith in the Rule of Law, and Snyder’s Guide to Resisting the Erosion of Democracy

Since my ramble last week about the different ways in which Donald Trump could break America, I have been drawn to articles which seem to be saying the same thing, only better.

Ian Millhiser’s piece ‘Democrats will botch The resistance against Trump‘ is an good example. He catalogues the ways in which democracy itself might be undermined by a president and a ruling party intent on consolidating their power. Millhiser also notes the terrible conundrum liberals face, which is that ahrence to the Rule of Law can often award power to those who are eager to undermine the Rule of Law!

We have brought a sheet of parchment and a set of abstract principles to a knife fight. We’re going to get cut.

The pedant in me wants to point out that it’s also possible to get cut by paper… but the point is important.  The article also cites the example of Thurgood Marshall, the first black justice appointed to the Supreme Court of the United States, who made the point that adherence to rules is crucial.

Justice Marshall taught Kagan that “it was the very existence of rules — along with the judiciary’s felt obligation to adhere to them — that best protected unpopular parties.” A liberal who casts aside the rule of law today because the cause seems just will have no ground to stand on tomorrow when the strong arm of the state is brought to bear against them.

Millhiser also links to an important post by historian Timothy Snyder, setting out a 20-point guide to defending democracy against a Trump presidency.  The list sets out the ways in which democracy can be eroded and how dictators gather power to themselves. More importantly, it also offers ways to resist.  We need to be mindful of the way politicians try to bend language and redefine what words mean (see, for example, how Republicans will try to claim a ‘mandate’ when they have none). And we should be particularly savvy and calm when some kind of terrorist atrocity occurs, as one inevitably will. 

Those in the legal profession and in law enforcement have a particular rôle to play.  Judges, lawyers and gun-carrying police officers need a strong sense of professional ethics and have faith in those principles.  

One practical thing the rest of we can and should do now is to draw attention to the different kinds of Every Day Resistance that Snyder suggests. A large part of the task is a mental one: refusing to buy in to the framing that powerful people seek to impose on any given situation.  It is a also a challenge of communication: using the platforms at our disposal to push back against shoddy thinking in the media and against the lazy non sequuntur of those in power, even if the stakes seem relatively small (that’s something I try to do with this blog).  Happily, modern technology has made us well equipped to do this.  There has been much chat recently about how social media puts us inside an opinion ‘bubble’, but remain optimistic that it can also fortify us against the mental trickery that demagogues and propagandists would play upon us, and embolden everyone to resist at moments when they must. 

A partial defence of Kiefer Sutherland's '24'

The conventional wisdom is that Kiefer Sutherland’s 24 is an apologia for torture, a cultural product of America’s post 9/11 crisis of confidence. It is produced by Fox, a media outlet not known for its liberal bias1.

Every week the show presents a new ‘ticking bomb’ dilemma for Sutherland’s character Jack Bauer. These scenarios properly belong in a university Ethics 101 seminar, not real life. Would you kill one person to save a hundred? Is torture justified if it yields information that saves lives? In Bauer’s world, the answer would always appear to be ‘yes’. He consistently chooses the path that saves more Americans in the aggregate, regardless of the law. And when he does so, he prevails. The people he tortures are always guilty and the confessions he extracts always yield useful information.

This is a 180° reversal of real life, of course. But by promoting the idea that the abolition of due process can be effective, 24 is propaganda for the abandonment of law and decency that characterised the Bush/Cheney administration. 24 skews public debate on such issues.

However, I have just watched Season 7. This block of episodes has a very different feel to the previous seasons. Terrorists still attack passenger aeroplanes, launch WMD, and attempt to assassinate the President. And Jack Bauer foils their plans on an hourly basis. However, this time the action has moved from decadent, decaying Los Angeles to Washington DC. This proximity to the institutions of State clearly inspire the supporting characters. As the action unfolds, Bauer is consistently harangued and brow-beaten over his actions by the people around him. FBI Special Agent Reneé Walker tries to play along with Bauer’s unconventional approach, and finds she does not have the stomach for it. Special Agent Larry Moss says “the rules are what make us better.” Back at the FBI HQ, the analysts complain about racially profiling suspects. In a key scene with a liberal Senator, Bauer is forced to entertain the notion that it is the rule of law that makes America, and that sometimes upholding The Constitution should take priority over saving lives. By the end of the series, Jack has accepted this argument.

Meanwhile, in the White House, POTUS Allison Taylor puts the responsibilities of her office over the unity of her family in a most dramatic fashion, following her head not her heart. The situations that she and Bauer encounter are no less preposterous than anything in the previous seasons… But at least in Series 7 the characters give proper weight to the importance of the law as they make their decisions.

24 Season 7 was made in 2008. You can tell it is the product of a different political wind. In an overt attempt to redeem itself after many years promoting a Manichean worldview, this series ensures that every Muslim character is wholly noble. As Bauer lies critically ill in a hospital bed, he even summons an Imam for spiritual guidance.

It is a shame that 24 took so long to put forward the view that it is the law that is at the heart of the American Way. It is a shame that it took the producers six seasons before they remembered that United States Presidents take an oath to defend the Constitution, not the people. Jack Bauer’s torturing ways are themselves an attack on American ideals, and it is a shame that this is only called out in Season 7.

But hey – at least the series does, finally, make that conceptual connection. Just as Jack Bauer repents his sins to the Imam, so 24 Season 7 feels like it too is asking for forgiveness.

Does the show deserve absolution? That all depends how Season 8 unfolds, and I haven’t watched that yet.



1. Yes, I do know that Fox also produces The Simpsons but that does not excuse Fox News.

Bankers Bonuses and the Rule of Law

I am sure I have made this point somewhere before on this blog, but a quick search through my archives doesn’t reveal it, so… 

All this business about bankers and CEO bonuses makes me uneasy. The pattern is now very familiar: it transpires that some despised ‘fat cat’ – a banker or the head of a quango, say – is due to be given a huge bonus on top of their already huge monthy remuneration. Outrage ensues. The aforementioned ‘fat cat’ is chased by the press and slandered by politicians and interest groups. The ‘Fat cat’ eventually issues a statement saying he will give back the money.

Continue reading “Bankers Bonuses and the Rule of Law”

Double Standards on Phone Hacking

A few quick comments on the unfolding phone hacking scandal, and what it says about the double-standards of our society and politics.

First, let us note that the images featured on the front pages of many newspapers yesterday were those of the most iconic cases of recent years. Sarah Payne, hollyandjessica, Millie Dowler, Madeline McCann: the news-stands appeared to be some macabre Abduction Hall of Fame. This is actually a dream come true for rivals of News of the World. It is the invasion of privacy of these families that the rival newspapers are keen to report, because they too know that it is images of these children that sell. And by pasting the famous images onto Page 1, I would say that they too are stepping, once more, into the grief of these families.

Meanwhile, black men and boys (the victims of inner-city stabbings that are far more common than the abduction of white school-girls) don’t seem to be mentioned in the reports. Is this because Glen Mulcaire and his News of the World handlers did not think the stories were sufficiently interesting? Or that today’s politicians and editors judge that an invasion of the privacy of (say) Damilola Taylor’s family would not sufficiently motivate the public, in a way that the Soham murders apparently do? Whichever explanation is closer to the truth, it says something unpleasant about our society and our media. It is ironic that, in expressing outrage at the practices of the tabloids, we fall back on the precisely those assumptions and values that we otherwise claim to despise.

A final note, also related to public opinion. In the chamber of the House of Commons yesterday, the Prime Minister made some throwaway comment about how the phone-hacking scandal was no longer “just about celebrities and politicians”. It is sometimes difficult to remember that both those groups are humans beings too! They deserve precisely the same protection from the law as the families of murdered schoolgirls. The Rule of Law is the Rule of Law. When it is broken, the Prime Minister’s outrage should not be contingent on who the victim is.

Update

They’re discussing similar issues in the USA too.

Update II

Now cross-posted with comments at LiberalConspiracy.org