Our Student Contributor for October is 3L Emilie Smith. Emilie is from Green Bay, Wisconsin, and has a strong interest in Business Law and Intellectual Property Law. She currently has a comment pending publication in the Marquette Law Review on the digital recreation of copyrighted tattoos for use on video game avatars. Welcome Emilie!
Prof. Rick Hasen of UCLA, an expert in election law, had an op-ed in Friday’s New York Times that argued that in the wake of the 2020 election and its aftermath, including the January 6th attack on Congress, “[w]e must not succumb to despair on indifference. It won’t be easy, but there is a path forward if we begin acting now, together, to shore up our fragile election ecosystem.”
Unfortunately, I disagree. The fact that there is no path forward unless X, Y, and Z happen does not mean that X, Y, and Z will happen. It could well be that there is no path forward. And no path is likely to be available until a significant portion of the American public fundamentally change their present views about their society and their fellow citizens.
The United States, like most democracies, takes pride in being governed by the “rule of law”; it aspires to be what John Adams once called “a government of laws and not of men.” There’s a sense, in this imagery, that law is something distinct from human beings; that it’s a sort of machine, that operates autonomously to generate answers to legal questions.
Of course, as the legal realists recognized, that’s all transcendental nonsense. Laws do not apply themselves, they are written and interpreted and applied by human beings. But a rule of laws that is subject to the whims of individual decisionmakers is no rule at all. Believing in the rule of law requires a sort of leap of faith. It requires a form of trust that other actors in the system, even ordinary citizens, will generally coalesce around the same outcomes and interpretations.
And that sort of trust — any sort of trust in institutions, including law — is breaking down. Faith in courts to provide the law, and faith in lawyers to be able to say what the law is, will fade with it. And after that, in the words of Felix Frankfurter: “first chaos, then tyranny.”