The rule of law is forever imperfect because human beings are self-interested by evolutionary nature. Therefore, we must consciously resist questions such as these: What actions will allow us to get away with something? What will keep us, alone, alive? What will enrich us to the disadvantage of others? What will give us, alone, an edge? Those who are Churched would say we are sinners, forever damaged in flesh and mind.
Law is the mechanism that democracies have devised, in acknowledgment of our baser impulses, to set up standards for behavior, to protect the weak from the strong, to prevent or redress injustices, and to govern our political, civil and international relationships. The law too often fails or is corrupted or abused, but healthy democracies are self-correcting. They reexamine laws, improve or dispose of them as needed, redraw standards, recognize that societies are in flux and thus the law must also evolve.
For those who aspire to or hold positions of power, the exercise of the law requires restraint, patience, an equable temperament, the ability to synthesize volumes of facts, many of them contradictory, and arrive at just conclusions based on the standards of the law.
The rule of law is subverted by passion and impulse, by dishonesty, and by calls for vengeance and cruelty. Mr. Trump has shown by his words and actions that he is guilty of each of these vices.
He would bring back torture: “It works,” Trump said over and over again. “Believe me, it works. And you know what? If it doesn’t work, they deserve it anyway, for what they’re doing. It works.” *1 Examine the statement in its full context: In spite of contrary evidence, he proclaims that it works because he says so — his words alone guarantee the truth of his statement, nothing else; he dispenses with any appeal to reason in any form. Then he undercuts his own proclamation: “If it doesn’t work….” He asserts that retribution is the real reason for the use of torture — make ‘terrorists’ suffer because they have caused suffering (how he would assure that the innocent are not pulled into his cellars and dungeons he never reveals because I suspect he does not care). Set the moral repulsiveness and self-defeating nature of torture aside for a moment and reflect on what kind of apparatus would be necessary to create such a system: the recruitment and training of torturers, the abolition of due process for ‘terrorists’ (and what of American citizens caught up in this police net?), the degradation of the 8th Amendment’s stricture against “cruel and unusual punishment.” By Mr. Trump’s own words, he means to punish. Nothing else.
He attacked the judge hearing the fraud case against Trump University, Judge Curiel, on the basis of his heritage, calling him a “Mexican”, the noun used as a slur, and saying that Curiel*2 has an “inherent” bias against him because he is going to “build a wall.” Look at the word “inherent.” It means that a quality is innate, inborn, genetically set. In Curiel’s instance, Mr. Trump implies that some inbred obstacle prevents him from ruling according to the facts of a case — Curiel is morally and/or intellectually deficient.
The danger of this attack on Curiel is not only the damage it does to a good man and his family, it is also the domino effect it sets up as framed by this question and its logical answer: who is fit to serve as a judge and make decisions? A white judge for white people, black for black, latino for latino, etc. The end of that line of reasoning is the destruction of American law itself. Instead, tribal law would take its place.
Mr. Trump’s believes race and background are the true indicators of who is an American. He will decide who belongs, not the law, not facts, not reason, not goodness, not justice. He will decide. This is the very definition of tyranny, the rule of one man whose prejudices and capricious whims would determine the fate of anyone brought before him.
*1 Washington Post, November 23, 2015
*2 Judge Curiel is an American Citizen.
The Senate passed a bill against torture. President Obama forbade its use. Mr. Trump’s call to bring it back would violate existing law. The exhaustive Senate Report on Torture showed that it did not work, that it was sadistic, counterproductive and counter to every decent expression of American law and conscience.