Balkinization: The Vice President and the Rule of Law

The Vice President and the Rule of Law

Richard Primus

There are at least two ways to understand Vice President Pence’s statement that Joe Arpaio is a champion of the rule of law. One is obvious and the other is subtle. It’s not entirely clear which reading better captures Pence's intentions. They’re both bad, but the subtle one is considerably worse.

To lay a piece of groundwork: Joe Arpaio is not, in fact, a champion of the rule of law. He is a persistent lawbreaker who systematically violated the Constitution and was held in criminal contempt for court for refusing to mend his ways. So on the obvious reading of Pence’s statement, the Vice President was saying something that’s obviously untrue, presumably with the intention of reaping some political advantage. He was engaged in political gaslighting.

But there’s also another possibility—a more subtle and more threatening one. Maybe Pence wasn’t dissembling one bit when he described Arpaio as a champion of the rule of law. Maybe the Vice President believes what he said.

Like many appraisive terms in law and politics, “the rule of law” sometimes means different things to different people. It’s a cluster concept with several components, and there is legitimate contestation as to exactly what it entails. Most of the time, we hope, enough of the participants in the discourse share enough of a sense of what “the rule of law” means that the term is useful when we discuss law or government. But one of the things that happens in political conflict is that different people attach different meanings to appraisive terms. The different uses of the terms then reflect the underlying substantive disagreements.

I would like to think that the Vice President of the United States would not regard a persistent and adjudged violator of the Constitution as a champion of the rule of law. But in the year 2018, and given Pence’s statement about Arpaio, I can’t assume that to be true. In fact, interpretive charity toward the Vice President—that is, the willingness to think that he might not be lying—requires one to take seriously the possibility that Pence actually believes Arpaio to be what he says Arpaio is: a champion of the rule of law.

And it’s conceivable that he thinks that. In particular, it’s conceivable that Pence (and not only Pence) has a conception of “the rule of law” that is less about the idea that officials must comply with the Constitution—or, more generally, that governmental power is to be exercised within limits set by law—than it is about the idea that people who break the law, or more precisely that people who break certain kinds of laws, are to be punished aggressively. On the latter view, the real offense to the rule of law (as relevant to Arpaio’s story) comes from people who enter the country illegally and from people who commit various offenses against the peace and order of Arizona. Arpaio is a champion of the rule of law because he dealt with such people firmly (or, perhaps, because he represents the idea of dealing with such people firmly). Yes, Arpaio also did lots of bad things even to people who broke no laws. But that might be less important on Pence’s conception of the rule of law than the need to uphold the legal regime that he sees Arpaio as standing for. Like "law and order," "the rule of law" might mean, to some audiences, more or less what "tough on crime" means.

I have a different view of the rule of law—one on which governmental authority resides in offices rather than persons and must be exercised within the limits of what law permits. That’s not the only thing that the rule of law requires, but it’s fundamental. It’s now open to question, however, whether the Vice President (and not only the Vice President) shares that view. If we take him at his word, he well might not.

Posted 4:55 PM by Richard Primus [link]