Why do you stop at stop signs or not plow through a red light when you can see that there are no police around, or cars or pedestrians in the way? Why don’t we take something that isn’t ours even though no one would know we took it?
The reality is that we could get away with a lot if we wished to. In fact, most of us follow “the law” not because we fear arrest or punishment, but because of our shared understanding and values of reciprocity that allow us to live together in relative peace.
The United States Constitution is notable for the checks and balances that in theory prevent the administration, Congress and judiciary each from overstepping its authority and asserting undue, or imprudent, influence on the laws and direction of our nation. Many think of the United States as an overly litigious nation because of the extensive civil and criminal codes and highly developed judicial systems. But even so many laws have their limits. We would never want to live in a country that had enough police to prevent every conceivable theft, ticket every rolling stop at a stop sign, investigate every office-holder for every possible bribe, or otherwise utilize law enforcement to prevent every possible wrong.
Our society only works because at the highest levels of government those shared understandings of reciprocity and civility work as effectively as our willingness not to run a stop sign or red light just because law enforcement isn’t looking. The conduct of American politics, driven by a combination of hyper-partisanship in Washington and a president-elect with little knowledge of, nor respect for, process in politics and public decision-making, is moving quickly toward the abrogation of those shared understandings.
We have been moving in this direction for some time and it is hard to know when to anchor the beginning of the trend. Was a turning point reached when right-wing advocates tried to deny President Obama his office arguing that he wasn’t a U.S. citizen. Was it threatening to shut down the entire federal government through refusal to routinely extend the debt floor ceiling in order to win a small political objective? More troubling even was the refusal by Senate Republicans to even consider a moderate center-left Supreme Court nominee, arguing fatuously that we were close enough to the next election to let the voters decide. In theory, we could end up with no Supreme Court at all had Hillary Clinton won the election and continued to face a Republican senate that refused to consider any of her Court nominations.
Finally, the Republican Congress is in the process of waiving important ethics guidelines that require a five-year waiting period for a former soldier to take a Cabinet position. Just as the Senate is within the law to refuse to consider a nominee, Congress is within the law to waive the waiting period, but it shouldn’t. Among the important principles on which our nation was founded, was the idea that the military should, to the degree possible, be under civilian control. Hence the elected “commander and chief”, the lack of a standing army in the early days, and reliance on local militia. No matter the qualifications of this particular nominee, and there is no evidence that they are so remarkable as to make him literally indispensible, that principle is more important.
Republicans, and the new president, will make a tragic mistake if they go down the path of operating unilaterally and without regard for political process that protects the productive workings of democracy, just because they now can. Democrats in Congress wisely helped Republicans thwart Franklin Roosevelt’s plan to work-around a conservative Supreme Court majority by adding additional justices he imagined would favor his New Deal agenda. Likewise, Republican congressmen helped Democrats launch the impeachment process that eventually resulted in Richard Nixon’s resignation. Leaders in both parties can respect process, even when in the short run it may not favor a particular policy or partisan-supported outcome. And they should, so that we can all continue living together.