The Law is Not a “Pretty Plaything”
I have referenced my colleague Matt Levine’s work at Bloomberg Opinion many times in the past. What he wrote about yesterday struck a note with me, not because it is was about any one event or action or political perspective. Rather, because it was about the rule of law as part of a process.
That process is under attack by those who claim they love the U.S. Constitution but really only have a love of power.
Levine was a clerk for the U.S. Court of Appeals for the 3rd Circuit. Had he not wandered into Goldman Sachs as an investment banker from his prior job as an M&A attorney at Wachtell, Lipton, he would have made a hell of a jurist.
“I don’t know. Mostly I am dazed and heartbroken all the time, and it seems trivial and disrespectful to write a column about finance these days. But this is a financial newsletter, and like a lot of my readers I like having a mostly safe space for finance, so here we are.
A theme of this column over the past few years has been legal realism, the idea that “law,” really, is just what officials do about disputes. Rules, the written laws, the constitution, are all “law” only insofar as they predict or explain the actions of public officials, or persuade those officials to do things. “That is all their importance, except as pretty playthings,” as the great legal realist Karl Llewellyn put it. If this column sometimes seems cynical, it is mostly Karl Llewellyn’s fault.
It seems to me that one central argument of the past few days has been about whether people with power should have to follow rules at all. America has good rules about freedom of speech and assembly and religion; it has a president who violently dispersed a peaceful protest and drove priests from their church so that he could pose for photographs outside of it. America has good rules against unreasonable searches and seizures, about the right to a trial by jury and due process of law; it has a long history of police killing black people with impunity.
A message of the protests is that the police should have to follow the same rules as everybody else, that when they break the law they should face consequences. A message of the response to the protests is: No, they shouldn’t. Is the law what it says? Or is it the raw fact of what the people with the guns and the tear gas do? I think I know the answer and it makes me sad.”
It makes all of us sad. But I have a sneaking suspicion that it is going to change in a much bigger way than most people expect…
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