Temple University historian Alan McPherson makes a bold claim in a recent article in the Law and History Review (paywall). He identifies two worrisome attitudes toward the rule of law: (1) “The means justify officials when the ends seem to justify ignoring them”; (2) “Regulations do not require an enforcement mechanism because government officials are expected to Patriotism and compliance.” According to McPherson, the first attitude is “held primarily by conservatives and the second by liberals.”
McPherson uses the lens of the Iran-Contra scandal to explore this claim, and he is hardly limited to this example. What empirical evidence does he have to support this claim? Social science research? Polling for data? No. This is just his subjective impression, based on his understanding of the performance of Republican versus Democratic administrations.
I laughed when I heard his description of the Obama administration. “To be sure, the Democrats are guilty… Barack Obama’s scandal-free administration Through illegal kidnappings and torture of enemy prisoners, he ordered numerous assassinations of foreigners and withdrawn strikes—all crimes under U.S. law.
This is interesting to me for a few reasons. First, the idea that the Obama administration is otherwise scandal-free is laughable. Some have even written entire books not only about the scandals of the Obama administration in general, but specifically about how the government tends to ignore the rule of law when “the ends seem to justify the means.”
Second, during the Obama administration, one heard repeatedly from defenders of the administration, almost all of them Democrats, that the Obama administration had the power to expand or evade or ignore laws because Republicans were unfair or unjust or otherwise thwart his agenda. It’s hard to believe McPherson missed this.
Finally, McPherson acknowledged that the only examples of the Obama administration breaking the rules were things the left opposed, one of which was drone strikes, which were not at all patently illegal. There are many examples of the Obama administration breaking the law (for example), many of which have been discussed on this blog site.
At the same time, McPherson is undoubtedly correct that the Trump administration is not meticulous about adhering to the legal details. But the policies implemented and defended by the Biden administration have no sound legal basis. The most notable examples are attempts to forgive student loans without a sound legal basis and attempts to preserve a COVID-era eviction ban without a sound legal basis.
Well, one historian has made a particularly poorly defended claim. My broader point is that people often see statements like this because the academy is a political monoculture. Liberal historians outnumber conservative historians about thirty to one. In a more politically balanced academy, when this article went through peer review, one or more of the peer reviewers might have asked for stronger evidence of McPherson’s claims about attitudes toward the rule of law. But people are less likely to challenge claims that appeal to their biases, especially when the targets are people they rarely see in professional settings.
