HS #37 2018.8.10
Rule of Law versus Compassion
Woody Allen once said, “Not only is there no God, but try finding a plumber on Sunday.” In similar contraposition, two notable things happened this summer, Anthony Kennedy announced his retirement from the Supreme Court and I read Herman Melville’s Moby Dick.
Melville and Kennedy wrestled with the same issue: How to make decisions when our compassionate moral sense conflicts with our obligation to follow existing law?
In Billy Bud, Melville’s less known but more readable novel, Billy was a young, innocent, eminently likable sailor conscripted to a British war ship. Billy quickly wins the hearts of everyone except the darkly evil Master-at-Arms, who is threatened by Billy’s innocent goodness. Noticing that Billy has a speech impediment, he falsely accuses Billy in front of the Captain knowing that Billy will not be able to defend himself. Unable to contain himself, Billy strikes the Master-at-Arms who falls back, strikes his head, and dies.
The officers are then confronted with a terrible choice. The maritime law is clear: Even striking an officer during wartime is a capital offense - Billy must hang. However, it is also clear to the captain and other officers that Billy was falsely accused and trapped by the conniving officer.
What is the right thing to do? Should they honor their oaths to scrupulously follow the maritime law, or follow their own inner moral compass and spare Billy both for his own sake and for the morale of the crew?
The Danish philosopher Soren Kierkegaard raised the same question regarding Abraham’s awful decision: Obey God, or spare his innocent son? Abraham was spared the action, but not the choice.
We proudly proclaim that the U.S. follows the “Rule of Law.” This is easy when the Rule of Law is pitted against nepotism and self-centered whim of the rulers. But what to do when the Rule of Law conflicts with our compassionate moral sensibilities?
Conservatives and liberals have different answers. Consider:
The unifying theme of conservatives regarding Supreme Court justices is “We want justices who will follow the Constitution.” That was also Trump’s answer when asked in a presidential debate. Supreme Court nominee Gorsuch explained that by scrupulously following the law, a good justice will at times be forced to make rulings he doesn’t personally like.
What in contrast is the unifying theme of liberals? Hillary Clinton expressed it in her answer to the same question: Justices should have varied life experiences and (implied) be compassionate and empathetic.
Granted, thoughtful, compassionate Supreme Court justices like Ginsberg, Kagan and Sotomayor serve as a buffer against the “tyranny of the majority” - the unfortunate consequence of democracy where the minority’s welfare is disregarded. But when did any of them make a ruling they didn’t like?
Instead, liberal justices focus more on doing the right, compassionate thing as they see it. Following their inner moral conviction seems to be the bottom line instead of rigorously following the law. Similarly, those protesting the treatment of illegal immigrants don’t claim that laws are violated. Instead they argue for compassion regardless of the law.
Do liberals then believe in the Rule of Law? Do they even wrestle with it as did Justice Kennedy, or do they just follow their internal moral compass no matter the existing law?
If so, then liberals are at odds with America’s pastime: A baseball umpire once claimed, “I call balls and strikes as I see them.” But another retorted, “They ain’t nothing until I call them.”
Indeed, even baseball follows the Rule of Law. It’s the call – not the reality - that counts. In 2010, Tiger pitcher Galarraga was denied an historic perfect game by an umpire’s missed call. All (especially the umpire) were heartbroken, but – following the rules - the call stands. Billy Bud was hanged. Severe and unbending, THAT’S the Rule of Law.
Is that then our obligation? Was Attorney General Sessions right when he quoted Romans 13 – obey the laws of the government? Or is there also a place for Acts 5:29, “We must obey God rather than men.”
In fact, did the framers of our Constitution themselves follow the Rule of Law? The Declaration of Independence eloquently speaks of not only the right but also the duty to throw off destructive government. The following century, American icon Henry Thoreau advocated civil disobedience – disobeying unjust laws.
So which do we follow when Rule of Law and our compassionate convictions conflict? Good question to ponder - for liberal and conservative alike.
