Law & Order or Rule of Law?

I believe in law. I believe in order. Those words have come to the forefront of our consciousness as a nation in the wake of disorders in a number of cities, and it’s very easy to rally to anyone crying “law and order” because we rightly fear for life, property, and liberty if we descend into disarray and chaos. Tweeting those words in all caps with multiple exclamation points is more an exercise in bluster than an answer to the problem.

But there is a danger in that cry as well. My argument is that the concept of the rule of law is more foundational and more adept at securing life, liberty, and the pursuit of happiness.

As a historian (I know, I say that a lot), I have studied disorder in many periods of history. As someone nearing his seventh decade, I can also add my own personal recollection of times when it seemed as if law and order had broken down. My prime example is the late 1960s-early 1970s when Vietnam protests, racial violence, and counter-culture morality—which I consider to be immorality—threatened to overwhelm American society.

The year 1968 can serve as an example. Here’s a slide I use in class to summarize what was occurring:

I use that term “near-disintegration” advisedly. Looking back on 1968, one can reasonably assume that we were close to falling apart. The leading civil rights leader assassinated, the leading contender for the presidency assassinated, riots associated with the MLK assassination, and the ongoing Vietnam controversy with massive protests and violence on university campuses made this fear real.

Richard Nixon ran partially on a law-and-order platform, but the candidate who made it his centerpiece was George Wallace, the former segregationist Alabama governor who started his own American Independent Party. He made an impact by drawing votes from the Democrat candidate, Hubert Humphrey, in the southern states. Democrats normally owned those states during that era (ever since Reconstruction, actually), but Wallace was able to galvanize the anger and fear of many in the South; he ultimately won five southern states in that election. Racism certainly played a key role, but beyond the racial aspect, the main concern was the perceived breakdown in law and order. The year 1968 showed how a demagogue can use the law-and-order appeal to tap into anger and resentment.

The concept of rule of law, while also emphasizing the importance of law and ensuring that it is carried out, has enshrined within it the significant belief that law applies to everyone, even those in positions of authority. No one is above the law. The opposite is the rule of man, which means that the person or persons at the top can do whatever they wish because the law doesn’t apply to them. Totalitarians throughout the world in all ages have operated on that assumption: “the law is for you, not for me, because I am the final authority.”

Constitutional conservatism stands against that idea and instead upholds the rule of law.

Constitutional conservatism warns those in authority at whatever level—federal, state, and local—that they are not mini-dictators.

Constitutional conservatism seeks to ensure that those who have been entrusted with authority are not lawbreakers themselves.

A lawless person—one who flouts the constitutional restrictions placed on the position—cannot be a legitimate champion of law and order. That would be rank hypocrisy. The rule of law must prevail.

The devastation in Kenosha, Wisconsin, is a violation of law. The rule of law says that those committing those acts must face the consequences of their actions. Criticism of certain Wisconsin authorities is valid if they are not taking appropriate measures to stem the violence. Yet the response to their inaction cannot be a further violation of the rule of law. Any federal action must be within the federal government’s authority. Vigilantism on behalf of law and order is unwarranted also. It has the natural tendency to become disorder as well. For instance, no seventeen-year-old boy from a neighboring state had any right to go to Kenosha and start shooting regardless of the circumstances. He killed two people and wounded another. Yet some are calling him a hero. He is not. A legitimate question, since he is a minor, is where were his parents and did they do anything to stop him.

A call for law and order without the proper grounding in the rule of law is just a recipe for further disaster, either in the form of greater dictatorial authority by government officials or increased chaos from those who decide to take the law into their own hands.

The rule of law holds all accountable: those who riot and destroy; those who react improperly by attacking those who are rioting and destroying (this is not the case for those standing their ground and defending their homes and businesses from looting, etc.); and those in public office who exceed their authority.

Only in this way is societal order and stability achieved.

We are a nation of laws. We are not a nation that operates on the whims of any man or woman who just happens to hold a temporary office. Our lives and our liberties depend on ensuring we stay that way.