A Corrosive State
“The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.” —Dwight D. Eisenhower
Ike was almost certainly thinking of the vast rebuilding of the ruined countries of Europe after the second World War. And I don’t, for a minute, suggest that this resilient and wonderful country is in any way like the desperate state of near anarchy that so many war-ravaged countries had to recover from back then.
But I do suggest that we must be very mindful of the profound implications for business and society as a whole as we see respect for the rule of law evaporating. For me, several seemingly disconnected political and legal developments are signaling the diminishing value that we as a nation place on our legal processes and institutions.
We see the executive branch of government, from the White House to its appointed cabinet level departments and regulatory agencies “over reaching”, to quote one court ruling, in trying to establish law without legislative approval. We watch our trade agreements and laws enforced sporadically, if at all, and laughed at by countries like China that manipulate their currency, routinely dump steel and aluminum here, and carve huge holes in our manufacturing industries. We wait for federal and state courts to resolve major policy issues that could and should have been resolved by intelligent and timely legislation. Just as troubling, we are creating an atmosphere of indifference in which many of us fail to understand that with “dumped” materials, the buyers have a responsibility as well as the sellers. Dumping steel and aluminum into this country would be impossible if there were not plenty of buyers.
When society no longer effectively creates or enforces its laws, or when it capriciously picks and chooses enforcement targets, that starts to take society as a whole down a dangerous slope. For the business community and the already staggering economy it is like throwing mush in the machine. Within the political establishments it seems to only heighten cynicism and disrespect. Is it my imagination, or aren’t we seeing more cases of political criminality, corruption and conflicts of interest than at any time in recent memory?
The rule of law and the processes of lawmaking have now—it seems—been abdicated to the courts. The judiciary was not designed for this.
We now operate in an environment in which the business community can no longer rely on traditional paths of policy making and power, to implement any helpful economic legislation or regulations. Observe what has happened to any effort to create well-funded, well-planned programs to rebuild the disintegrating infrastructure of this country and kickstart the economy. Lots of talk and endorsements from both sides of the political aisle, coupled with no substantive action.
The no-compromise political elements in this country, right and left, have forced us into a sad and dangerous state. The business community is on its own. Consequently, we watch companies make only the narrowest and most conservative decisions in a wholly unpredictable economic climate.
The rule of law and the processes of lawmaking have now—it seems—been abdicated to the courts. The judiciary was not designed for this. Courts were to be a last resort, a final, impartial, intelligent review of policy and program challenges big and small. But with the political process frozen and the executive branch trying to regulate independently of our elected representatives, we see the courts taking a more powerful role in the economic and social climate of the nation.
This is not a good thing. For business particularly, this democratic dysfunction retards optimism and predictability. It means that high-impact business regulations, for instance, are being upheld or overturned by men and women appointed for life and shielded from the will of the people. It creates more uncertainty, more delay and an increasingly heavier drag on an economy that needs growing, not stifling.
This environment is not sustainable if the nation is to prosper and manufacturing is to thrive. We have got to begin rebuilding our respect for law and the democratic processes that have made this country great. For that we need politicians who show that respect by doing their jobs. We all have a critical role to play here. I’ll be talking a lot more about that in the weeks and months to come.
My concern is that we are losing something essential, that as our institutions fail us, we are becoming a nation of malaise that is losing its respect for basic values. “Two things form the bedrock of any open society,” the author Salman Rushdie said, “freedom of expression and rule of law. If you don't have those things, you don't have a free country.”