In a recent article in Law and History Review (paywall), Temple University historian Alan McPherson makes a bold claim. He identifies two fraught attitudes toward the rule of law: (1) “when the ends seem to justify the means officials could disregard statutes”; and (2) “statutes require no enforcement mechanisms because government officials should obey them out of patriotism.” According to McPherson, the first of these attitudes is “held mostly by conservatives and the second, mostly by liberals.”
McPherson uses the lens of the Iran-Contra scandal to explore this claim, but he hardly limits himself to that example. What empirical evidence does he have for this claim? Social science research? Polling data? Nope. Just his subjective impressions based on his understanding of how Republican administrations have behaved versus Democratic administrations.
I laughed out loud when I got to his depiction of the Obama administration. “To be sure Democrats were guilty…. The otherwise scandal-free administration of Barack Obama dealt with enemy prisoners through illegal kidnapping and torture, and he ordered countless assassinations of foreigners withdrawn strikes – all crimes under US law.”
This amused me for several reasons. First, the notion that the Obama administration was otherwise scandal-free is laughable. Some people have even written entire books about not just Obama administration scandals in general, but specifically how the administration was inclined to ignore the rule of law when “the ends seem to justify the means.”
Second, during the Obama administration one heard over and over from the administration’s defenders, almost all Democrats, that the Obama administration was entitled to stretch or evade or ignore the law because Republicans were unfairly or unjustly or otherwise blocking his agenda. It’s hard to believe that McPherson missed that.
Finally, the only instances in which McPherson acknowledges Obama administration rule breaking are things that the left objected to, one of which, drone strikes, was not at all clearly illegal. There are far clearer examples of the Obama administration violating the law (e.g.), many of which have been discussed on this very blog site.
Meanwhile, McPherson is certainly correct that the Trump administration was hardly meticulous in observing legal niceties. But the Biden administration has implemented and defended policies with no sound legal basis. The most famous examples are trying to forgive student loans without a sound statutory basis for doing so and trying to preserve the Covid-era ban on evictions with even less of a legal basis for it.
Okay, so a particular historian made a particularly poorly defended claim. My broader point is that one sees such claims routinely because the academy is such a political monoculture. Liberal historians outnumber conservatives by something like thirty to one. In a more politically balanced academy, as this article went through peer review one or more of the peer reviewers would likely have asked for much stronger evidence of McPherson’s claims about attitudes toward the rule of law. But one is much less likely to challenge claims that appeals one’s own prejudices, especially when the target is people whom one rarely meets in a professional setting.
