My belief about some things is not important. God exists whether or not I believe or, if you prefer, does not exist regardless of my belief or disbelief. The walls of this room exist whether or not I believe in them. If I walk into their space I will bounce off, no matter how fervently I deny their existence.
On the other hand, I have come to understand that there are some very important things about which my belief matters very much. There are things that are subject to the Tinkerbell effect—they only exist so long as we believe in them. One of the things that is subject to the Tinkerbell effect is the rule of law. When you get right down to it, the rule of law only exists because enough of us believe that it exists and believe that it must exist. It exists only so long as we insist that it exists and that everyone, even the non-believers, behave as if it does exist. The minute enough of us stop believing, stop insisting that the law is above us all, that we are all subject to the law—in that moment the rule of law will be gone, as silently and completely as a soap bubble drifting on a summer’s breeze.
So I cling to my belief in the rule of law because it is important. It may be the single greatest achievement of our society. It is the vessel that keeps all our other values safe. It is the last bulwark against both mob rule and the overweening power of the modern state. It is the rule of law that governs us, that protects each one of us when we stand alone against those who disagree with us or do not like us because we are different or fear us.
In times of crisis and threat, there is a temptation to stop believing in the rule of law. A temptation to think that it weakens rather than protects us. We have succumbed to this temptation more than once. Within living memory we responded to a sneak attack by interning American citizens because they, or their parents, or their grandparents were from Japan. In retrospect those actions were not only unjust and morally wrong, they were unnecessary and did nothing to protect us.
The horrific events of 9/11 have tempted me to reach the same conclusions. But I wonder, if we abandon it we stop being what generations of Americans bled and died to create and protect, how we will ever get them back? I have come to understand that, like Tinkerbell, doubt has seriously injured the rule of law. If it is to survive, those who believe in the rule of law must stand up and say—I must say—I believe in the rule of law and will not accept its being taken away. I do not believe that we are so weak, are so frightened, are so impotent that we must give up the rule of law or perish. I do not believe that those few who have harmed us, and who will do so again, are so powerful that we must abandon the very thing that makes it worth being an American.
by Michael Mullane
I agree that the rule of law is what makes this country great and that it only works as long as we believe in it. All you have to do is look at any country in the world where the rule of law is not valued to see the horrible effects. However, the rule of law is not some vague theory or concept. The rule of law originates from a real document. Our laws in particular directly originate from our Constitution.
I do think that Professor Mullane is making the classic mistake of moral equivalency in his argument. He is comparing the Jihadist detainees in Guantanamo Bay as morally equivalent to the innocent Japanese-American families interred during World War II. These were mostly American citizens that were illegally interred without trial by the then sitting President of the United States, Franklin Delano Roosevelt using an executive order. This was strictly against the rule of law at the time and of course, still is today. The detainees in Guantanamo Bay on the other hand are not American citizens and are either prisoners captured on the battle field while actively trying to kill US soldiers or they are command and control leaders who give aid and support to the actual fighters. Of course a few of these detainees have been found innocent and released. This is no different than using DNA evidence to belatedly release a prisoner from federal prison. No, it’s not perfect but it’s the best we have right now. Fighting unconventional terrorist that do not adhere to the Geneva Convention is something new for us as a country.
In the preamble to the Constitution (our rule of law), it specifically states that the government of the United States is required to “provide for the common defense”. This is done by having a strong standing military force, by using treaties and alliances with other countries, but sometimes by using brute force including all out war. I would be very interested to hear Professor Mullane’s proposed solution to the Guantanamo Bay issue. If his solution is to simply close it down and release dangerous terrorists bent on killing innocent Americans, I would have to respectfully disagree. I would disagree because it goes directly against the rule of law that we hold so dear.
