From the WSJ Opinion Archives
THINKING THINGS OVER
The Law and Civilization's Future
The Clinton administration, in itself, won't cause the republic to collapse. But then, Rome didn't fall in a day.
"The most important political development of the second millennium was the firm establishment, first in one or two countries, then in many of the rule of law," Paul Johnson wrote in his contribution to our millennium series last year. The idea that everyone is subject to the law and all are equal before it is a bedrock of civilization. Indeed, it is civilization itself.
Rome ruled its Mediterranean empire through Roman law, Mr. Johnson observed; prosperity spread and ordinary citizens could go about their daily lives in peace. But this started to decay when the Republic became an empire, with Nero and Claudius ruling by whim. The fall of Rome led to lawless Dark Ages ruled by power. Yet over time, the idea of equality before the law took root in England, and throughout the West we now trace our liberties to that moment in 1215 when King John was forced to sign the Magna Carta, specifying that even the king was not above the law.
The American Founding Fathers took great care to limit the powers of the executive, lest a monarch emerge above the law. Madison and his colleagues divided power among three branches of government, and Chief Justice John Marshall embodied and established judicial independence. This was a great boon not only to individual liberty but to the economic development of the nation. We are learning again in Russia and throughout the developing world that predictable law and protection of private property are essential to economic progress.
In Western democracies we now take the rule of law for granted. Indeed, the United States has grown careless about its inheritance, and cynical about the law. Last week I listened to Supreme Court Justice Stephen G. Breyer give the annual Gauer Lecture for the National Legal Center. He remarked on how the currently popular lawyer jokes contrast with an earlier image of the public-spirited lawyer, and proposed that to buttress their image lawyers get off the billable-hours treadmill and do various kinds of public service.
Yet the problem runs much deeper, to the performance of lawyers and the legal system. Justice is still presumably done in the average, unremarkable case. But our Dorothy Rabinowitz has reported on a whole series of extraordinary cases in which obviously innocent people were convicted and imprisoned because of the power of a fad, in this case the myth of widespread child abuse in day care centers. Among those riding this myth to career advancement was the current attorney general of the United States. By contrast, with "scientific" jury selection and ample use of the race card, a wealthy and favored O.J. Simpson can beat a murder rap.
Civil law is even worse. In more civilized parts of the world, speculative lawsuits are discouraged by levying court costs against the loser. And contingency fees, giving the lawyer a third or half of any damage award, are considered a breach of legal ethics. The U.S. lacks these restraints, and has developed a class of personal injury lawyers, who sometimes help the needy and sometimes win outrageous jackpots over spilled coffee.
This insurance-company nuisance has now metastasized into the class-action bar, aggregating trivial claims into huge legal fees. We have legal "settlements" in which the supposedly injured are paid in frequent-flyer points while the attorneys are paid in cash. Little wonder that the public tells jokes about something black and brown that looks good on a lawyer--a Doberman pinscher. And little wonder that the public increasingly looks on the law as one big slot machine.
Inevitably, these audacious and powerful interests have allied themselves with government and politicians, most notably in cutting the states in for a share of their tobacco loot. And inevitably, the potential abounds for corner-cutting and outright corruption. Richard Scruggs, the No. 1 tobacco lawyer, provided money for a home, two cars and a sailboat for Merrell Williams Jr., the paralegal who provided him confidential documents from Brown & Williamson. Federal prosecutors have been investigating efforts by former Texas Attorney General Dan Morales to steer tobacco settlement money to his former law partner with apparently backdated documents.
Which brings us to the Clinton-Gore administration. Last week we were treated to the revelation of a memo to prepare Donald Fowler, Democratic National Chairman, for a phone call to tort lawyer and big contributor Walter Umphrey. It contains the words "I know will give $100K when the president vetoes tort reform, but we really need it now. Please send ASAP if possible." That Al Gore is somewhere in this loop was made clear by another phrase, "sorry you missed the vice president." While politicians walk a fine line with contributors, the sale of a veto would be both gross and illegal. Of course, Attorney General Reno has already issued Mr. Gore get-out-of-jail-free cards in three other campaign finance allegations, turning down requests for independent investigations. I happen to believe that the campaign-finance laws are wrongheaded, outlawing the good money and leaving only bad. But before this law and under Clinton-Reno Justice, some potential defendants are more equal than others.
In handling of its various scandals, the Clinton administration has routinely undermined the rule of law. It summarily dismissed all incumbent U.S. attorneys, and sent soon-to-be convicted Webster Hubbell to oversee Ms. Reno at Justice. It has repeatedly stonewalled and withheld information. It launched attacks on the integrity of investigators ranging from Jean Lewis to Kenneth Starr. And of course, the president of the United States committed perjury, and is likely (though not certain) to escape any legal sanction.
This comes just as the rule of law is, so far as I am concerned, the most significant issue facing our civilization. Are we to continue in the new century a nation of laws and not men? Or will one law apply to the powerful and another to the rest? Will guilt or innocence be determined in deliberative courts or by the fads in the streets, on TV and in cyberspace? The problem is not an acute crisis, of course, but an insidious deterioration of the principles on which the republic is built. There is much ruin in a great nation, as Adam Smith said. But it is also true that Rome did not fall in a day.
Mr. Bartley is editor of The Wall Street Journal. His column appears Mondays in the Journal and on OpinionJournal.com.
