Rule of law

Glenn Greenwald posted a thoughtful, passionate rebuke of national media journalism today that states many of my growing qualms with establishment wisdom and the status quo. This essay was in response to Michael Massing's analysis of the changing face of journalism in the relationship between print or television media and the blogosphere.

While both are worth reading in full, the main gist of Greenwald's essay is that Washington politics and Washington media have a rather insidious belief that all questions in politics constitute policymaking, and should be subject to "practicalities." However, as he puts it there are fundamental differences:

Garden-variety political questions -- what should be the highest tax rate? what kind of health care policy should the government adopt? to what extent should the government regulate private industry? -- are ones intended to be driven by "the practical considerations policymakers must contend with." But questions about our basic liberties and core premises of our government -- presidential adherence to the law, providing due process before sticking people in cages, spying on Americans only with probable cause search warrants, treating all citizens including high political officials equally under the law -- are supposed to be immune from such "practical" and ephemeral influences. Those principles, by definition, prevail in undiluted form regardless of public opinion and regardless of the "practical" needs of political officials. That should not be controversial; that is the central republican premise for how our political system was designed.

I do not believe it is as simple as Greenwald puts it. He contends from a sort of originalist view what the Framers intended, and such arguments have been used to support slavery (3/5ths rule) or any number of past constitutional abuses. He does not constrain his commentary to the Bill of Rights, but extends it to the "rule of law" arguing it is not amorphous or ephemeral. Meanwhile, his supporters in the comments argue about which of the amendments are open to interpretation, differing on the Second Amendment, which left-leaning civil libertarians so often forget.

The rule of law is a principle, as is due process, and what those principles mean are going to be left at times to policymaking, be it from a politician or a judge. That said, he is right that without adherence to the rule of law, and the provision of due process, we are not the country the Framers intended, nor are we the country we believe we are. At the very least, though rule of law in some ways open to interpretation, fundamental questions regarding the rule of law should be given much more depth of analysis than the press often provides. The consequences of its abdication are far more grave to all Americans than differences on diplomacy or healthcare.