Our Greatest Asset

By Tom Lamia

When elections approach, the issues identified by the respective candidates as important vary according to what each believes will attract a majority of voters. The issues that are supported by proponents for each candidate are at the top of each respective list. For example: in this year’s federal, state and local elections abortion and the right to choose heads up the Democrats issues list and the southern border is the Republicans top issue. The issues lists tend to be relatively short, ten or less is usual. More would risk diluting the appeal of the top issues. The political press has a say in the construction of these issues lists and will put certain issues in the running for every cause or candidate: the economy, national security, taxation, immigration, debt and deficits; all will be issues for every election. Just the framing of these issues will vary. Nothing new here; this is what voters expect to see. It is meant to give the voter comfort that his or her vote is “informed.” Of course, virtually any issue can be described to appeal to the inclination of a target audience. For example, the economy—how it is managed, how it affects the interests of voters at different income levels, etc.—will trigger different voting responses.

In the 2020 presidential contest, Senator Elizabeth Warren of Massachusetts, a former Harvard Law School professor, was faced with strident opposition from small business owners who opposed her plans to have the federal government adopt assistance programs for small business owners and entrepreneurs. Their concern was that Warren’s past as the bankruptcy and banking guru at Harvard (viewed by many as a hotbed of soft-headed socialism) would seek to impose new and costly regulation on their businesses, which they proudly maintained they had built by themselves with no help from government. To this cohort the correct analysis was that “if it ain’t broke don’t fix it.” Their mantra echoed the popular notion that government regulation handcuffs the American “can do” spirit for effective business management and adds unnecessary costs.

Senator Warren’s response was that, in fact, the business owners had not built their businesses on their own; that government had built the roads, railways and air transport systems that their businesses required; that government had educated the employees they needed; that law enforcement and local government provided the security necessary for their businesses to prosper, etc.

She was right, of course. The cries of socialism and government interference soon subsided. Bank loans on the front end of business development and bankruptcy protection when disaster strikes are not weights for businesses to carry, they are the safety nets and escape hatches that make our economy resilient.

As a young lawyer advising clients on business formation, capitalization, finance and regulation, I found myself going over technical avenues that had to be navigated to launch a successful business. These were sometimes complicated discussions requiring effort to reduce statutes and codes into plain English. A fellow lawyer provided a positive answer: the United States of America is a magnet for talent and capital for a simple reason: the rule of law. It is the rule of law that is the basis for our economic success. It is the rule of law that makes the risk of new business investment bearable. Middle class Americans and immigrants new to the world of business are willing to take the risk of business failure because they are protected from the risks of government confiscation or competitive predation by courts, honest elections and skilled civil servants. This opportunity is further supported by an education system that will provide a flow of future employees for the business owners and their children. These are the fruits of the rule of law.

Look around you, look at your own history, you will see the appeal and the protection of the rule of law. It has given you access to an honest and efficient system of courts; to a layered and efficient banking system; to an abundant supply and demand of goods and services free of monopoly pricing; to private and public schools, colleges and universities where high standards and reasonable costs are the norm. All of this is the product of our history of growth and opportunity made reality by the rule of law. Your life is better than it would be without that cloak of protection and opportunity. It does not happen by government fiat, or through arbitrary measures, and it does not work as you would have it do at every turn and twist; it moves in accordance with the meter and timing of the rule of law. As first described by an ancient Greek philosopher—“the mills of justice grind slowly but exceedingly fine.”

The catastrophic risk to the rule of law is that, through some disastrous combination of events not unknown to us in our history, but avoided by enormous good fortune in the past, a wrong moment may come when too many fail to understand the critical asset that the rule of law is and has always been and somehow believe that it can be compromised in small or large ways, thereby causing it to fail, leaving it and all of us at sea without a compass. It hasn’t happened and it need not happen, but it could. Great societies of the past have stumbled and disappeared. Those that are with us today: Western Europe, Russia, China, all qualify. Ancient Greece and Rome each had their time of power and influence. England among today’s developed nations has the oldest claim, from the Magna Carta in 1215. Our commencement point was 1789, the year our Constitution was adopted.

The founding principles embodied in that Constitution and its tripartite form of government, its state and federal system, has seen us through great crises, including the annealing process of Civil War and its aftermath. The rule of law embodied in the Constitution continues to this day because it allows for philosophical and political differences to be resolved by the rule of law. Now we face what may be the greatest challenge so far in our history: preserving the rule of law from those who fail to understand its critical role in our history and our future; who are blind to its essential integrity. Lincoln could have compromised with the South on slavery in 1861, proclaiming that the Union was saved, but what sort of Union would have followed such a compromise? Not one that would embrace the rule of law, surely, as it would have rejected a founding principle of our Declaration of Independence: that all persons are created equal. Let us hope that our good fortune and American Exceptionalism continues and allows us to avoid the historical catastrophe that the next election could bring. At the top of all issues lists for all parties and all candidates in this coming election must be preservation of the rule of law.