Little incentive for police to act within the law
© Victoria Sarno Jordan

Just as President’s Trump’s pardon of former law enforcement officer, Joe Arpaio has once again inflamed the simmering debate about police abuse, another shocking story of police wrongdoing has captured national headlines.

On July 26th, a University of Utah Hospital nurse, Alex Wubbels, was violently and unlawfully arrested for properly enforcing the hospital’s blood draw policy, which specifies that there must be either the arrest or consent of a patient, or a judge’s order, before police may take custody of the patient’s blood. After a disturbing video of the arrest began to circulate through national media, the Salt Lake City Police Department issued an apology.

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Both stories, Trump’s pardon of Arpaio and Detective Jeff Payne’s disgusting bullying of Wubbels, point to deeply rooted problems in American policing and law enforcement interaction with the public. Systematically protected from accountability, America’s police officers have little incentive to confine themselves within legal and constitutional bounds. Yet, new technologies have laid bare to more and more Americans crimes of which civil libertarians have long been aware.

 

An exhaustive recapitulation of Arpaio’s many crimes is not the purpose of this article; those crimes are now well-documented and publicized for inquiring minds. We might instead consider what the response to Arpaio’s alleged lawlessness from the president of the United States himself (and his millions of supporters) says about prevailing opinion on the rule of law generally.

Boorishly meandering from one misstep to the next, Trump seems to delight in playing the role of right-wing culture warrior, thumbing his nose at the establishment — or so he thinks. Actually, he is not so much confronting the political and media establishment as he is undermining core enlightenment values, childishly obsessed with his defiant tough-guy pose.

Trump’s pardon of Arpaio seemingly represents lawlessness at its most naked and unapologetic. Such lawlessness, such shameless contempt for human life, is abhorrent to a free society, a rejection of the values on which freedom stands.

Arpaio should be treated as — what I believe he is — a cruel person who abused his power and position and now stands completely beyond the reaches of legal accountability. The rule of law must mean more than shamelessly exposing the misdeeds of those charged with law enforcement.

If we care about the rule of law as an ideal, we must carefully avoid a definition that reduces it merely to the law as it happens to stand at a given moment or to the arbitrary whims of law enforcement agents. Further, we must take care not to cheapen the rule of law by defending illegal acts of government officials. These are revolutionary ideas, the full potential of which have never been realized.

For conservatives of the Trumpist, alt-right sort, rule of law means only the absolute, unquestioned power of the state, the subjection of the many to the prerogatives of the powerful few. Whatever the law is — however arbitrary, however excessive or unnecessary — it is to be enforced brutally, the rights of individual citizens be damned. They confuse the law as it exists and has actually existed with the rule of law as a normative, theoretical idea.

In the classical liberal conception of the rule of law, in contrast, the law and the principle of equality before it are a bulwark erected to protect the individual against arbitrary exercises of power, that is, against the abuses of those in power and, indeed, against the state itself. Enlightenment liberalism can be thought of as a vindication of the individual as politically relevant. Traditional liberalism’s rule of law scrutinizes the actions of those in power rather than cynically apologizing for them.

As the nineteenth-century radical theorist Thomas Hodgskin wrote, reflecting his acute awareness of the distinction, “law in fact is only a general name for the will of the law-maker.” Hodgskin looked at history and saw legal power for what it was in practice, the enemy of the people and preserver of ruling class privilege.

The law as it has existed has often, if not usually, been arbitrary, fundamentally at odds with liberal values and therefore unhelpful to the vindication of individual liberty. Or as Hodgskin put it, “Perish the people, but let the law live, has ever been the maxim of the masters of mankind.”

So, too, has today’s political class largely embraced this maxim, particularly right-wing law-and-order conservatives, for whom the actions of police officers must never be questioned; this, of course, is as much an example of identity politics and political correctness as is any of the shibboleths of so-called social justice warriors.

In the United States today, government actors are the foremost violators of the Enlightenment conception of the rule of law, under which everyone, regardless of social position, sex, race, or other categories, is entitled to equal protection. And while equality before the law is necessary, even that much is not sufficient. The law itself, its content, must also conform to certain standards. It must safeguard certain inviolable individual rights.

There is a pernicious style of American conservatism under which the superficial symbols of law and order as a cultural motif are more important than law and order themselves. Trump has become the spokesman for this style, his cartoonish “Make America Great Again” brand its preeminent representation.

Heeding the rule of law as a timeless principle — not a hollow conservative talking point — requires a sober reconsideration of the powers that come with a police officer’s badge. Perhaps, if that reconsideration should take place, Arpaio’s pardon and the brutal assault of Wubbels will not have been a complete loss.

David S. D'Amato is an attorney, an expert policy advisor at both the Future of Freedom Foundation and the Heartland Institute, and a columnist at the Cato Institute's Libertarianism.org.


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