I write about law for a living. Over the past five years or so, I’ve committed my time and my pen to saying what the law does and doesn’t allow the president to do, even when that’s made me unpopular with my friends. I’ve pored over statutes, parsed Federal Register notices, dredged the case law, and tried very hard to get it right.
Now, for the first time in my professional life, I’m left wondering: what’s the point?
Law is a set of social practices that tell us what’s permissible and acceptable in a given community. That’s what makes the rule of law so robust: the widespread belief that certain things are Just Not Done means there’s a political price to be paid for transgressing legal limits. But it’s also what makes the rule of law so fragile. If the social practice of condemning violations decays, the rule of law decays with it.
In that sense, law is an act of collective suspension of disbelief, a potent but often-overlooked refusal to countenance the cynical view that our leaders are unconstrained by anything but raw politics. We collectively create and reinforce the rule of law by acting as if it exists. It’s the Tinkerbell effect: if you clap enough because you think she’s real, then she’s real. Stop clapping and she dies. (That’s the thrust of this article by my friend Julian Mortenson.)
We have just elected a man who openly displays contempt for the rule of law—a man who has said he will jail his political opponents and who admires authoritarians because they ignore legal niceties. It’s like he looked at Tinkerbell and said, “Grab her by the pussy.”
I suppose that leaves me—and not just me, but all lawyers—with a choice. There’s the path of resignation, the one that says that fairies aren’t real and we should get over it. Quaint arguments about statutory text and constitutional history are passé, nothing more than grist for Trump’s mill. On the day after a dark election, that view holds a certain appeal.
The alternative is to reaffirm the faith in an age of disbelief—to keep clapping when the room has gone silent. Maybe it’s quixotic to say that the law matters to the American people when we’ve just elected a man who cares so little for it. But, at our best, lawyers can serve as secular mediators between the rule of law and a wayward public. Maybe our efforts can instill a faith that has been shaken to the core.
At any rate, I’m going to keep acting like they can. I won’t be alone. A lot of lawyers on the left and the right will do the same. If we care about the rule of law, we’ve got to insist that the law matters, even when—especially when—it seems like it doesn’t matter at all.