“The first thing we do, let’s kill all the lawyers.”
Dick the Butcher in Shakespeare’s Henry VI Part II.
Dick the Butcher was a follower of the rebel Jack Cade, who thought that if he disturbed law and order, he could become king. Shakespeare meant the line as a compliment to attorneys and judges who instill justice in society.
Illinois Governor Bruce Rauner said recently that the Illinois Supreme Court cannot be relied upon to arrive at rational decisions regarding issues related to the state’s pension funding crisis. I recently made a similar observation about the United States Supreme Court, saying that it is a political body and cannot be relied upon to be rational or fair in the short term. I am not the executive of a co-equal branch of a constitutional government, however. And I also said that courts appointed by democratically elected executives and approved by democratically elected legislatures will eventually respond to grass roots social change in the long term. The U.S. Supreme Court’s evolution on civil rights matters from pre-Civil War days to the 1960’s shows that dynamic. The U.S. Supreme Court is compromised in its moral legitimacy because of the corruption of our electoral system for the last several years. The influence of big money has raised doubt that our executive and legislative political leaders (and by extension our appointed judges) are democratically chosen and therefore legitimate. Such untoward influence leads to travesties like the Citizens United case which reflects no grass roots democratic sentiment past or present regarding money in politics and by extension is a disgraceful claim of actual superiority of the wealthy in our society over those who are not.
So what is the difference between my and Rauner’s position? He doesn’t care about democracy and the rule of law and I do. He blames the state Supreme Court. I blame the money tainted system that ultimately selects it and all government officials. He wants to eliminate judicial power and legal regulation and direction of our affairs. The kernel of truth in Rauner’s attack on constitutional democracy is that a Supreme Court by its very nature hears the tough cases that could go either way when interpreted through the lens of established law, but he uses that kernel to perpetuate a big lie.
Jack Cade wanted to eliminate the judicial system because he was a criminal and a fraud. Libertarians want truly independent lives unfettered by restraint of law. They argue that those restraints are a tyranny that stifles their creativity and productivity. Like all ideologues, Libertarians live in a world of what-should-be instead of a world of what is. The Founding Fathers instituted a system of checks and balances so that one person or interest group would not attain all power. They did so because they knew that there was a strong impulse in many men to acquire as much power as possible and dominate others. Rauner wants to denigrate the legal system (and eventually the legislature—witness his recent executive orders of questionable constitutionality) so that all the power will reside in him—a rich man with the means to purchase the office and use it for the interests of himself and his economic class. Rauner believes he will use his power to make initiatives for the common good and wants to set himself up as the sole arbiter of the common good. Rauner does not believe in the law or democracy. He embodies the political crisis that we face as a nation. Rauner and his ilk want to radically change our way of life.
Lawyers and judges are the far from perfect officers of the far from perfect legal system which is created, maintained and is an essential component of our far from perfect representative democracy. They are our social line of defense against criminality and unfairness in our civil arrangements. The results of the legal system are often far from just or reasonable. But who should decide these matters? Libertarian so-called “free and creative” people doing as they please even if it occasionally devolves into crime, broken civil agreements and no social responsibility required for non-criminal harms to others with no fair mitigation and redress for those harms?
Two leaders of far more moral and intellectual importance in the sweep of history than Mr. Rauner, John Adams and Winston Churchill, addressed the Governor’s assault on our established values.
Adams responded to the British tyranny against the American colonies prior to our War for Independence when he asserted that Britain had “a government of laws not men.” The American Revolution was a reaction to a despotic government that denied people their established rights by ignoring and superseding its own law.
Rauner’s manipulative and dismissive comments about our state Supreme Court are partly based on legitimate criticisms of the imperfections of our legal system and the human natures of the people that run it. Winston Churchill counters Rauner’s attempt at an illegal power grab under the guise of idealism with his own idealistic and realistic words about our core values: “Democracy is the worst form of government, except for all those other forms that have been tried from time to time.”
In fairness, Churchill also said that “The best argument against democracy is a five-minute conversation with the average voter.” It is the distraction and ignorance of the population that makes the election of a bully like Bruce Rauner possible.
But since King Arthur is a myth, and there are no philosopher kings available who are trained to benevolently decide what our world looks like— who should decide? Us or Bruce Rauner? We have to take control of our own lives and set our own priorities. And we have to protect the law—our only leverage in the material world that we have against our own imperfection.
Copyright 2015 Richard Thomas