Does the Two-Party System Disrespect the Rule of Law?

Partisan allegations of unconstitutional or illegal conduct in politics are fairly common. Allegations of unconstitutionality can even come from Supreme Court justices, usually in dissent from majority decisions they disagree with.

For example, Chief Justice John Roberts’ dissent in the Obergefell v. Hodges decision that found a constitutional basis for a right to same-sex marriage included this bitter criticism:

“The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent.” (emphasis added) – Chief Justice John Roberts

Although he might deny it or spin it differently, Roberts’ sentiment is clear: the Obergefell decision is unconstitutional.

With blatant disrespect for the rule of law coming from high-profile sources in politics, it is no wonder that the American people are losing trust in federal courts, Congress, and both political parties. A loss of trust makes sense if one pays attention to what the two sides are saying about each other regarding the rule of law.

Both sides might be mostly accurate in their criticisms of one another because they are in a position to know what they are talking about.

For the most part, many or most partisans on the left and right see the other as lawless to some unacceptable degree, while seeing their own side as basically law-abiding. As is usual in partisan politics, the truth is not what either side says it is. Two examples serve to nicely illustrate how the rule of law often works in practice as opposed to how it works according to the spin of the two-party system.

Barriers to Ballot Access

Former independent presidential candidate T.J. O’Hara experienced bipartisan attitudes toward the Constitution and the rule of law in the context of gaining write-in candidate status in several states before the 2012 presidential election. In some states, it was clear that election officials were unaware of provisions of the Twelfth Amendment that allowed any candidate to run for office without naming a vice presidential candidate.

That tactic, while expressly provided for under the U.S. Constitution, challenged the barriers that the two-party system built to impede independent candidates while defending the two-party system.

Mr. O’Hara informed state election officials about the unconstitutionality of their own states’ laws because those illegal state laws were trumped by the Supremacy Clause of the U.S. Constitution. The states responded by either ignoring the Twelfth Amendment or promising to look into the situation after the election.

In other words, the official bipartisan attitude toward unconstitutional laws was essentially one of not caring enough to do anything about a clearly indefensible situation.

 

Barriers to Same-Sex Marriage Rights

Same-sex couples can face similar attitudes toward the rule of law in the context of having their marriage rights respected. NPR recently reported that a married couple in Florida was unable to list the names of both legally married partners on a birth certificate after one spouse gave birth. Florida state law does not recognize same-sex marriage and thus only one of the two spouses, the birth mother, could be put on the birth certificate. The U.S. Supreme Court Obergefell decision states that birth certificates are a benefit that gay and lesbian couples are entitled to.

Despite the Supreme Court decision, which made the Florida state law unconstitutional under the Supremacy Clause, the couple has to sue the state of Florida to vindicate their rights as married parents. Similar lawsuits are pending in other states. In other words, the official bipartisan attitude toward unconstitutional laws that affect same-sex marriage rights is essentially one of, “if you don’t like it, sue me.”

As described before, it is helpful to assess political issues from the three dominant subjective points of view, (i) liberal, (ii) conservative and (iii) two-party system (TPS), and the objective, public interest-oriented viewpoint that Dissident Politics advocates.

 

Two-Party System Point of View

How one sees realities or situations in politics depends, among other things, on how one defines the key terms of debate in one’s own head. Although agreed-upon definitions would always be useful, definitions of key terms or concepts in politics, e.g., what is “love of country”, are usually in the mind of like-minded people. That is why the liberal and conservative sides tend to talk past each other with limited mutual understanding.

 

In turn, definitions are typically limited to what conforms to personal ideological belief and/or self-interest.

In the case of what Mr. O’Hara experienced, the TPS is perfectly content to let people like him expend their time and money to vindicate the rule of law. The burden is on citizens seeking to defend the Constitution by vindicating their rights in lawsuits.

From this point of view, the TPS definition of the rule of law appears to mean that even if a law is illegal but nonetheless serves to protect and defend the TPS or its status quo, the prevailing attitude is accommodating.

On the other hand, the TPS is likely to be somewhat split along the usual left-right ideological lines on the same-sex marriage issue. Most Democrats are likely to be far less accepting of illegal laws that burden marriage rights, while it is reasonable to assume that most Republicans would not much care.

 

The Liberal Point of View

In accord with mainstream liberal ideology, most liberals would likely be offended by illegal laws that burden same-sex marriage rights, while probably generally having more mixed feelings about illegal ballot access laws. Liberals in the Democratic Party might generally be accepting of, or neutral to, laws that impede independent candidates. Liberal third parties are likely to strongly oppose both kinds of illegal laws. If that is basically correct, it is fair to conclude that liberal respect for the rule of law is somewhat subjective and tends to be higher for laws that fit within liberal ideology.

 

The Conservative Point of View

Most conservatives would likely be fairly accepting of illegal ballot access laws and laws that burden same-sex marriage rights. Some or most Republicans are probably neutral to, or generally accepting of, laws that impede independents and third party candidates. Conservative third parties are likely to strongly oppose illegal ballot access laws. If that is basically correct, it is fair to conclude that conservative respect for the rule of law is somewhat subjective and tends to be higher for laws that fit within conservative ideology.

 

The Objective Point of View

As described before, objective politics can be built on three fundamental political principles or morals: The application of (1) unspun facts and (2) unbiased logic that are applied (3) in service to an objectively defined public interest.

As Dissident Politics has described it, one of the key parameters in serving the public interest is acting with “genuine respect for the U.S. constitution and the rule of law with a particular concern for limiting unwarranted legal complexity and ambiguity to limit opportunities to subvert the constitution and the law.”

If one accepts that as an important aspect of what politics should stand for, then it is fair to argue that the TPS, liberal, and conservative points of view tend to be unacceptably subjective regarding the rule of law. That makes sense because those points of view are primarily subjective and what constitutes respect for the rule of law is also subjective.

The TPS, left, and right each define concepts differently, primarily to conform to their subjective ideologies or morals.

From an objective point of view, there should be less subjectivity in what constitutes respect for the rule of law. Absolutism isn’t necessarily always called for, but for important issues such as illegal campaign laws or exercising marriage rights, lawsuits should not be needed to defend the Constitution.

If one defines political corruption to include undue influence of personal or ideological belief over the rule of law at the expense of the public interest, then it is logical to conclude that all three subjective points of view toward the rule of law are unduly corrupt and disrespectful toward the rule of law.

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