Legal Feminism: Activism, Lawyering, and Legal Theory

1 The Rule of Law

The Rule of Law Conscience is but a word that cowards use, Devised at first to keep the strong in awe: Our strong arms be our conscience, swords our law. March on, join bravely, let us to’t pell-mell; If not to heaven, then hand in hand to hell. —William Shakespeare, King Richard III There is no concept more central to the American experiment than the “rule of law.” We all somehow accept it as the cornerstone of the republic. The rule of law comes to us, seemingly, in mother’s milk. Given its centrality, it is interesting how little agreement there is about its meaning.1 I’ve contributed to this conventional lack of examination. For example , during the summer preceding President Nixon’s resignation in 1974, I was seated at a shipboard table with an Italian gentleman. At every meal, he pressed me to explain why Americans were so agitated. Government, he said, was all about corruption and scandal and coverups and moving on to the next government. Could Americans really be so naive and/or so self-righteous? I had just graduated from college but hadn’t learned how exactly to respond to his persistent questioning about the nature and excesses of government. Eventually, however, the magical term leapt to my lips: even the President, I said, had to be subject to the rule of law. I stuck to some version of that utterance for the rest of the voyage. The Nixon saga required no further justification from me. Nixon was not criminally indicted, and didn’t need to be impeached because he resigned. It was as if Nixon himself and all the rest of us (including a unanimous Supreme Court)2 were following a script learned in junior high school. It was as if we all knew what the rule of law was, what it required, and how it might be damaged if Nixon had refused to listen to the Supreme Court. 1 17 That worked out relatively smoothly, but I’ve subsequently realized how often the phrase “rule of law” substitutes for serious discussion of the most basic question of jurisprudence. What does it mean for an utterance to be called “law”? Is it just any old thing that a legislature or king says? Perhaps a simplified spectrum can convey the problem. On one extreme, was Richard III right that law is just the sword of cowards , or those who cannot otherwise win inevitable contests of raw power? On the other end, is law by definition (or only by aspiration) more majestic? Does the ideal of law bring with it—dare I say it—matters of conscience, or morality, or justice? Are there any basic principles conveyed by allegiance to law? All of the possibilities are implied in contemporary rule of law discourse . Consider three examples. The first is the impeachment and trial of President Clinton, a gavel-to-gavel transcription of what was probably the most extended “rule of law” twaddle in American history. Throughout those proceedings, the term was used more than five hundred times, almost equally by proponents and opponents of impeachment .3 Among proponents of impeachment, Representative Stephen Buyer (R-Indiana) contrasted the rule of law to the rule of “kings, tyrants , czars, monarchs, emperors, chiefs, sheiks, lords, barons and lords [sic] and even nobles.” As applied to the case at hand, which rested largely upon the President’s alleged perjury in a civil deposition, Representative Buyer stated that the rule of law is absent “[w]hen plain spoken English language is twisted into the vague and ambiguous. . . .”4 Representative Henry Hyde (R-Illinois), the House Impeachment Manager , intoned that the rule of law “is no pious aspiration from a civics textbook.” Rather, it “is like a three-legged stool. One leg is an honest judge, the second leg is an ethical bar, and the third is an enforceable oath.”5 The President’s lawyers, on the other hand, opined that the framers of the Constitution did not intend impeachment to be a means to enforce every conceivable provision of the criminal law. The criminal law could do its business in the ordinary course as necessary, once the President’s term expired. In their view, the rule of law argued more forcefully for upholding the results of elections.6 Crucial to the President ’s argument was that proportionality is a concept central to the rule of law; to impeach would be a disproportionate response to whatever the...