The law should shape us

Afew weeks ago, I heard a re-statement of an assertion that has troubled me and should trouble all Americans. The assertion is that January 6, 2021, was not a riot that got out of hand but a planned insurrection that was part of a larger plot — a plan to reverse the election. A coup.

It seems to me essential that the January 6 committee lay out all the evidence to this effect.

And then, if it is true, the citizenry of the country needs to try to absorb this historymaking and mind-blowing truth.

Denver Riggleman, a former one-term Republican congressman, military intelligence officer and data analyst, in a new book called The Breach, says it is true. And, aided by his study of millions of pieces of data, he makes his case.

I hope we are not too weary to take this in. Or attempt to.

What we do know is that there was an ardent desire to reverse an election outcome, coming from the then-president of the United States, the person who should be the preeminent defender of the Constitution. We know that this desire was aided by far, far right conspiracy and hate groups like QAnon, the Oath Keepers, and the Proud Boys. We know that, with or without foresight, they ignited a mob and, tragically, captured the minds and consciences of much of what was once the Republican Party.

And that is perhaps mind-blowing enough. January 6 must be further investigated. The committee is not finished. The Department of Justice is just beginning.

I hope we are not too weary.

But I want to suggest a through-line and an antidote that is the responsibility of all of us. The through-line is lack of respect for law. I would call it legal narcissism: The law is what I want and need it to be to achieve my ends.

This appropriation of law begins, in one way, with legal realism. But, in a more recognizable way, it begins with the far left and student radicals of the 1960s.

Legal narcissism now belongs to the far right.

We had a president, of the populist right, who was a legal narcissist. He did not believe in and did not understand the rule of law.

Yet, it is only the rule of law and respect for it that makes democracy functional. For example, only this respect allows us to accept elections and have peaceful transfers of power. Only this respect allows judicial decisions to stand and be accepted, even by those who disagree.

And, though they are less to blame, we now have a Supreme Court majority that undermines this respect by making up the law rather than interpreting it — exactly what conservatives accused liberal jurists of doing for much of my lifetime.

The current majority on the Court are not, I am sorry to say, judicial originalists but judicial narcissists. Like many liberal jurists of the past, they make it up as they go along.

The antidote is legal piety — reverence for the law and humility before the law — and true judicial restraint.

Legal pietists believe the law should form, inform and lift us.

Legal narcissists believe the law should be formed by the majority of the moment: It is whatever we need it to be to win.

Two men who are legal pietists are worth paying attention to at this moment: Attorney General Merrick Garland and retired Supreme Court Justice Stephen Breyer.

In a recent, moving short address before swearing in new citizens, Mr. Garland suggested four important principles that partially define respect for law.

1) The law connects us to posterity — the citizens of today, yesterday and tomorrow. So it cannot be a product only of today’s politics.

2) The law exists to protect all citizens so that they may live in liberty and without fear.

3) The law applies equally to the powerful and the powerless, the rich and the poor. One law for all.

4) Through the law we promise each other, as fellow citizens, to protect each other and our democracy.

The law, and the spirit of the law, should shape us, as individuals and as society. It is not for us to constantly remake the law to suit passing ends.

We are here for the country. It is not here for us.

Consider the Pledge of Allegiance: The country is best represented by the Constitution, our laws and our democratic institutions, not the faction with the most votes or loudest voices at any given moment.

The last word belongs to Justice Breyer, a justice who actually practiced and advocates judicial modesty.

He said recently of the high court: “You start writing too rigidly, and you will see, the world will come around and bite you in the back . . .

“Because you will find something you see just doesn’t work at all . . .

“Life is complex, life changes . . . And we want to maintain insofar as we can — everybody does — certain key moral political values: democracy, human rights, equality, rule of law, etc. To try to do that in an ever-changing world. If you think you can do that by writing 16 computer programs — I just disagree.”

The law does not come out of an intellectual vending machine, or a poll, or a political party. It is the sum of precedent, posterity and restraint.

It is our guardrail and our constant. It cannot be the whim of a strong man or a mob.