Academic journal article William and Mary Law Review

Is Legality Political?

Academic journal article William and Mary Law Review

Is Legality Political?

Article excerpt

INTRODUCTION

Following the law just because it is the law seems surprisingly unpopular in the United States these days. Or maybe it is not just "these days." And perhaps this should not be surprising. For some time now, political figures, public officials, and legions of commentators have treated the law--formal sanctions aside--as something to be followed when it produces results perceived as desirable on first-order policy or political grounds, but as something to be disregarded or slighted when what the law demands differs from the course of action that might otherwise have been pursued for law-independent reasons. Quite often, it appears, officials and citizens alike condemn the unlawful character of policies they oppose on substantive grounds, but ignore any illegalities in the policies they favor.

Examples of this phenomenon are ubiquitous. The Bush administration seemingly treated the law as an annoying yet ultimately surmountable obstacle when the Foreign Intelligence Surveillance Act (1) interfered with what the administration believed was the valuable or even necessary warrantless domestic surveillance of American citizens, (2) but much the same attitude toward the law was embodied in the decisions by the mayors of New Paltz, New York, and San Francisco, California, to marry same-sex couples in violation of the prevailing law in those states. (3) President Bush's decision to invade Iraq was inconsistent with international law, (4) but little more or less so than President Clinton's decision to authorize military action in Kosovo. (5) And numerous other instances of what we might call "selective legality" pervade public and political life. (6) Indeed, the debate over the appropriateness of referring to people who have entered the United States in violation of existing law as "illegal immigrants," rather than as "undocumented workers," provides a nice example of the widespread tendency for people to stress any illegality in the policies they disfavor while striving to downplay it with respect to the policies they support. (7)

As the examples in the previous paragraph were designed to demonstrate, avoidance of the law in the service of what are perceived to be sound political, policy, or moral goals appears at first glance to have little political valence. Of course, these substantive--or first-order--political, policy, and moral goals assuredly do vary with time, place, political party, and presidential administration, but the willingness or unwillingness to subjugate the law to those law-independent goals seems at times to be politically, temporally, and geographically indiscriminate. (8)

It is thus a large and important question whether legality as such--the fact of law just because it is the law, and not because of the substantive content of the law--has any political incidence. Is respect for the law because it is the law more the province of some political orientations or parties than of others? In this Article, I propose to examine this question, albeit more anecdotally than systematically. But the anecdotes and the available data span a wide variety of further questions: Do Congress or the executive branch consider themselves bound by Supreme Court or lower court judicial opinions with which they disagree? Do legislative bodies follow the rules they have set forth for their own procedures? Do federal, state, and local officials follow the law when they need not worry about first-order public opinion or formal legal sanctions? Much of popular "rule of law" rhetoric appears to assume that the law both is and should be a significant constraint on the behavior of nonjudicial public officials and policy-relevant public figures. (9) But a closer look at the evidence may suggest--albeit tentatively--that the willingness to disregard inconvenient law is a common phenomenon, and that it exists across the political spectrum. To the extent that this is so, it may indicate that acquiescence to the law more broadly is similarly politically indiscriminate, such that for all of the substantive changes that political or electoral transformations may produce, changes in the attitude about the law qua law is rarely among them, and has not been among them in the most recent American political transformations. …

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