The Death of Rule of Law in America

Or, more accurately, a brief history of how it began before it died

As you may have heard, SCOTUS said the president is immune from prosecution blah blah go read this piece by Heather Cox Richardson if you want a more detailed analysis. She also points out that this ruling doesn’t mean Biden can do whatever the fuck he wants, because the current slant of the court wouldn’t let him. But they would let the Danger Yam do whatever the fuck he wants.

Unlike most other analysts of the ruling, instead of focusing on the present, I wish to look at the past. Rule of law and accountable government in the United States have come to an end. For this piece, I want to take a historical look at what helped it first come into being.

The modern liberal democracy is a balance of three things: a strong and centralized state, rule of law, and accountable government. We have the fall of Rome and the rise of Christianity to thank for creating the situation that led to liberal democracies. It must be noted, however, that centuries prior to the fall of Rome that China already had a strong and centralized state. And religion played a role there too, but in a totally different way that has echoed across the last two millennia. Confucianism and Buddhism created ideals which allowed China to violently form a powerful and centralized state, but it never went any further than that. China doesn’t have rule of law or accountable government. It never has. The reason why is that there was no check on its power to prevent the various emperors and autocrats from wielding absolute authority.

But in the late fifth century Western Europe, shit was different. Rome fell, and there was a power vacuum. And the Christian church filled that vacuum.

The church became the dominant force in Western Europe for the next thousand years, and if you thought those anti-vaccine horse-paste-eating Joe Rogan fans were some anti-science semi-sentient skidmarks, then I got news for ya.

The Ancient Greeks had been into a rational examination of the world, separate from religion. Christianity was all that shit makes us uncomfortable and doesn’t gibe with us telling you you’ll go to hell if you don’t give us money and only use your penis in a way that we say is okay. All the answers to life, the universe, and everything were to be found in the Scriptures. But you can’t read those Scriptures because you don’t know Latin so you’ll just have to take your priest’s word for what they say.

In Western Europe, the Church held a monopoly on learning, and they were restrictive as all shit. As an example, in thirteenth century Paris some philosophers began toying with the idea that reason was the path to truth, and the Catholic Church was all yeah absolutely fucking not. Starting in 1210 the Church began to issue a series of “condemnations” that a Florida school administrator would have loved, because it was all about not reading stuff that went against God. Aristotle? Fuck that guy. Do you want to be set on fire? Because reading Aristotle will get you set on fire. Over the next seven decades the list of shit not to do grew and grew until the year 1277 when the Bishop of Paris laid out 219 things you weren’t allowed to believe.

Dammit, I’m getting away from my point. My point is that Christianity was a major check on the political power of various states in Western Europe for a long-ass time. Most medieval states were small and weak, and kinda afraid of the church. These early European states dispensed justice but not law. Law came from religion. The LAW is a body of abstract rules that bind a community. It is seen as higher than any individual human legislator. It must apply to everyone.

The creation of lasting legal institutions is extraordinarily difficult. They need to be seen as legitimate and authoritative. Anyone who has been to church knows there are all sorts of rules to follow. As it turns out, those religious rules were critical to the later establishment of more secular rule of law in Western Europe.

In China, religion was purely a tool of the state. It was subservient to the state. Religion had no authority over government, there was no centralized Buddhist or Confucian authority that could tell emperors what to do, and that’s why to this day China does not have rule of law or accountable government. It does have a powerful and centralized state, but that state isn’t subject to the law and isn’t accountable to the people. It’s rule by do what we fuckin’ tell ya or we’ll ghost your ass.

Back to the fall of Rome. Christianity gained tremendous power so that it was seen as being a higher authority than kings were. Various kings and queens and whatnot of Western Europe didn’t have the iron grip of control that Chinese emperors had because they were fighting with the church for power rather than using the church as another tool to maintain and strengthen their power.

And that’s one of the ways in which western democracy came to be. But it didn’t happen easily. It happened, in part, because of something called the investiture crisis.

In a way, we have the church to thank for the degree of separation of church and state that we have, because the church was looking at various royalty across western Europe and saying we don’t like you guys having control over how we do shit. And a big part of that shit was the appointing of various abbots and bishops.

Around the time of the first millennium, when Western European states were pulling their heads out of their dark age asses a bit and exerting some power, the church was not happy with this threat to its control. At the time, the church owned about a third of the land in Western Europe. But they faced a problem because King Joe would say hey my brother Bob isn’t doing anything I’m gonna make him a bishop. And as a result, the church got dragged into political issues and often forced to choose sides. Even worse, back then clergy was allowed to marry and have kids, and church land could become heritable property. So not only was bishop Bob getting the job via nepotism, but then he was taking the land from his bishopric and giving it to his kids. And the church was all fuck that guy! Fuck all those political appointee guys.

And so, late in the 11^th century Pope Greg bunch of numbers said screw this, we’re investing our own clergy from now on. BUT! They had to make some reforms in order to be able to pull it off. The big one was: no more sex. I mean, they winked at the same time because you could totally still have sex and rape and we’ll totally look the other way so long as you don’t get married and you don’t have kids. They did this because they didn’t want kids inheriting church property or church titles. It made the church more bureaucratic, appointing powerful positions based more on merit.

The existing bishops and abbots and priests were even told to choose between their families and the church, and they were not pleased one bit. Neither was the Holy Roman Emperor (which was none of those three things). He said yeah fuck this pope we’re gonna punt him. But the pope said no fucking way and excommunicated the Holy Roman Emperor. And when your title is Holy Roman Emperor, getting excommunicated is kinda of a big deal so he had to say he was sorry please let me back in the church.

It took a few decades to really be accepted, but being able to appoint their owns bishops and abbots was a huge political win for the church, and it resulted in it evolving into a bureaucracy that was governed by laws. In the process, the church actually became a model for modern European states on how to efficiently run shit. In a lot of ways, the church was run like its own state.

This doesn’t mean that various state powers didn’t try to control it, but they didn’t usually have a lot of success. The church also tried to say to various rulers that no, we are in charge of you, but that didn’t fly either. Eventually they had to come to a compromise that said the church was in charge of the spiritual shit, and kings got to run the temporal stuff. And that basically set things up for the separation of church and state that wasn’t happening in other parts of the world.

Even more important is that the existence of a separate religious authority showed the people that kings were not the ultimate source of law. And if that was the case, then a king could be subject to the law, and that eventually led to the establishment of rule of law for all citizens, and also accountable government. The existence of an independent church institutionalized and rationalized the law.

Because of the power of the Christian church, it was difficult for Western European kings to see themselves as above the law. Chinese emperors didn’t have this problem.

That was the start of it, at least. The Protestant Reformation was one of those things that helped weaken the power of the Catholic Church, giving more power and freedom to commoners, and that also helped. It’s all more complicated than that, but this is a very basic overview of how having something of a balance of power between church and state in Western Europe allowed neither to rule absolutely, eventually helping to create the idea of a modern liberal democracy, which first took root in the good ol’ US of A because they didn’t like the English king saying they couldn’t steal land from Native Americans (that’s another story). Elsewhere in the world, China became an example of the state having all the power, and Islamic nations show us what it’s like when religion is in charge. Neither is preferable to liberal democracy.

But now the U.S.A. is trying like mad to be more like China by eliminating both accountable government and rule of law. There is one benefit of doing that, as fucked up as it sounds. When a government has no check on its power, it can act decisively. The problem of accountable government and rule of law, and democracy in general, is that it is slow-moving and indecisive. It’s hard to get shit done when you must be accountable to the law and to voters for every little decision, and having your political opponents attack you no matter what that decision is. But if you have absolute authority, you don’t have to worry about that. When China had a “good emperor,” lots of stuff got done. The problem was that sometimes there was a bad emperor.

There is no shortage of people living in liberal democracies who would prefer a dictator to rule them, even those who shout so much about their “freedom.” The impending horror of what’s happening in America is that no rational person imagines that Tangerine Palpatine could ever be a good emperor. He would be a very bad one.

I shall endeavor to leave you with a more uplifting message. Democrats were winners in 2018, 2020, and 2022. They have shown in recent years that they know how to win, but they still need your faithful support. There is still plenty of time until the election and lots can happen in the coming months. Don’t listen to the doomsayers, or you’ll be part of ushering in your own doom. Realize that the media makes money from chaos, and therefore has a financial interest in fomenting it. There is only one chance to prevent disaster. You know what you have to do.

So do it.

Also, do the thing where you subscribe.

And please buy my sweary fucking history book.