The “Rule of Law” and the Death of a Euphemism

P.J. O’Rourke

In my younger, more conservative days, much of my political understanding came from humorist P.J. O’Rourke. I liked O’Rourke because he reduced complex, highly contested political concepts into bite-sized maxims, backed by jokes that ingrained his precepts in my memory. As an adult, I realize that O’Rourke, who passed away earlier this year, excessively simplified his concepts, erasing nuance and complexity. But his oversimplifications were what I needed at that stage.

O’Rourke’s 1994 collection All the Trouble In the World includes this libetarian platitude:

Property rights, rule of law, responsible government, and universal education: that’s all we need. Though no society has achieved these perfectly.

Throughout the book, O’Rourke repeats the expression “rule of law,” my first exposure to that phrase that penetrated my long-term memory. Surely I must’ve encountered it in high school American civics classes, though not sufficiently to recollect it. “Rule of law,” in political theory, means that every law covers every citizen and legal resident equally. Nobody arbitrarily has more power, and nobody has constrained autonomy; we’re all subject to the law.

I honestly believed O’Rourke’s list of right-libertarian principles governed conservatism. The idea that I and my property are equally protected by a government which answers to an informed populace: what could be more grand and idealistic? Sure, as O’Rourke concedes, this is more strived-after than achieved. But with this shared objective, surely we could strive together, chasing political goals that empowered everyone equally. God bless ’Merica, amirite?

That’s why the collective right-wing flip-out over the FBI executing a search warrant at Donald Trump’s Mar-a-Lago this week initially confused me. The FBI presented a judge sufficiently persuasive evidence that the judge authorized a search warrant for documents at the former president’s residence. In my Republican days, partisan rhetoric asserted (and I believed) that, when challenged in a lawful way, the best defense is truth. That means giving up the papers.

My initial confusion passed quickly, though. I left American conservatism, in large part, because I realized that “lawful” isn’t a synonym for “just.” Laws are frequently written in ways that nominally cover everyone, but pragmatically only influence certain people. As the Nobel Prize-winning poet Anatole France wrote: “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”

In this light, watching America’s organized Right come unhinged this week makes sense. Rep. Marjorie Taylor Greene, nobody’s idea of an abolitionist, tweeted “Defund the FBI!” on Tuesday, then began selling branded t-shirts boasting the same logo. Dinesh D’Souza, who did a hitch in the pokey for campaign finance violations, has repeatedly referred to the FBI as “organized crime” this week. Steven Crowder, who wears two shoulder holsters on YouTube, referred to this as “war.”

DEFUND THE FBI!

— Rep. Marjorie Taylor Greene🇺🇸 (@RepMTG) August 9, 2022

Anatole France

What they’re admitting, without using the words, is that laws aren’t supposed to apply to them. They believe laws exist to constrain outsiders: the poor, non-White, immigrant, and other disfavored groups. And, as Kyle Rittenhouse demonstrated, also any White person who makes common cause with these groups. Anything these groups do is perforce criminal; anything “insiders” do to constrain these groups is lawful.

Organized conservatives have concealed their motives for generations by insisting that the law supports them. It’s okay to target certain neighborhoods, certain populations, or certain activities, because “the rule of law” applies equally to everybody. The fact that certain transgressions have higher set points than others—that stealing money from the till is a felony, but withholding wages is a civil matter—doesn’t change anything. Law is still law for everybody.

We’re watching that logic disintegrate live on CNN. Bomb-throwers like Marjorie Three-Names and Steven “Mug” Crowder aren’t even pretending anymore; they’re admitting aloud that law is supposed to wrap powerful, well-off White people in coccoons of innocense. “Rule of Law,” that rhetorical shield that protected conservatives for generations, has been exposed as pure political theatre, a meaningless action faux conservatives use to justify themselves retroactively.

I’ve asked myself whether this corruption has always existed in American conservatism. Maybe. But P.J. O’Rourke, the man who provided my post hoc justifications, wouldn’t have agreed. He openly opposed Donald Trump, considering him a stain on conservative values. Therefore I’m willing to entertain the idea that true conservatism is simply in abeyance, awaiting better conditions to come back.

But what we have now isn’t conservatism. It isn’t justice. And it doesn’t even pretend the law means anything. It’s shown its ugly face, and we need to kill it.