“Law and order” politics often undermines the rule of law

Civil rights advocates should not cede ground in defining “the law.”

It seems like an eon ago by the standards of the 24-hour news cycle that President Donald Trump tweeted something remarkably revealing regarding how he defines “law and order.” On June 24, Trump outlined a demand for hardline action against people “who invade our country” — though with little indication of what class of immigrants or asylum seekers he might be referring to. “When somebody comes in,” Trump argued, “we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order.”

The irony scarcely bears mention: the claim that law and order requires dispensing with the legal system. The claim is especially striking from the self-described “law and order” president. Various commentators noted that simply getting rid of “Judges” and “Court Cases” would violate due process, as guaranteed by the US Constitution’s Fourteenth Amendment, repeatedly affirmed by the Supreme Court, and defined under federal law.

But what’s really going on here? Is this logical inconsistency just a Trumpian quirk?

It turns out that Trump’s curious use of the term “law and order” is far from unique. “Law and order politics” regularly entails government officials breaking the law. Examples abound: from unconstitutional racial profiling under Joe Arpaio in his time as an Arizona sheriff; to extrajudicial executions of suspected drug abusers under President Rodrigo Duterte in the Philippines; to assassination of pro-democracy activists following dictator Augusto Pinochet’s coup in Chile. When individual rights protections stand in the way of policy goals, advocates of “law and order” politics are often more than willing to ignore laws, constitutions, and even the democratic order.

So what is “law and order” politics really about, then? “Law and order politics” is not about the law. Instead, it is all about order. Many decades of research point to two psychological orientations that likely explain what “law and order” proponents want. Social dominance orientation refers to a psychological drive to maintain oneself and one’s social group at the top of social hierarchies, including hierarchies by race, gender, and immigration status. Authoritarianism refers to the impulse to uphold conformity and deference to authority within a group.* These two orientations predict a wide range of views on policies that promote “order,” even to the point of breaking laws: from the willingness to restrict human rights in the wake of terrorist attacks to persecution of immigrants.

Here’s the thing about what we call “the law.” It’s a gradually evolving system of rules, principles, and judicial precedents** that reflect temporary resolutions to social conflicts. Those resolutions, when codified on paper, often give an upper hand to the wealthy and members of majority groups. Yet also, particularly in countries influenced by a Western constitutional tradition, they incorporate individual rights that protect the poor and minorities.

Academics and policymakers use another phrase that sounds deceptively similar to “law and order”: “rule of law.” This notion holds that the law applies equally to everyone — presidents, sheriffs, citizens, and even illegal immigrants. In the United States, as interpreted by the Supreme Court, the rule of law means that all people on US soil, regardless of legal residency and citizenship status, are entitled to due process protections — including often but not always “judges” and “court cases.” For advocates of “law and order” who are driven by social dominance orientation or authoritarianism, this can feel like a radical and unwelcome leveling. On the one hand, the rule of law constrains the powerful; on the other hand, it empowers the weak.

The “rule of law” can be an antidote to “law and order” politics. Advocates of “law and order” misperceive the law. Through the lenses of social dominance orientation and authoritarianism, they notice only laws that justify group hierarchies, boundaries, and conformity. They fail to distinguish (or perhaps to care about) laws that level hierarchies and boundaries and push against conformity. This explains why “law and order” politicians endlessly emphasize the transgression of illegal border crossings, but ignore illegal behavior by government officials — for instance, the longstanding practice of refusing to allow Central American and Mexican migrants to apply for asylum.

In so doing, proponents of “law and order” redefine “the law” — a powerful rhetorical move that strengthens the public appeal of “law and order” politics. Immigrant rights advocates should refuse to cede to this redefinition. Instead, they should frame their struggle in terms of the rule of law.

Yet here’s another thing about what we call “the law.” It’s constantly changing, as temporary resolutions to social conflicts no longer hold and are renegotiated. Trump’s demand to dismiss with judicial procedure for immigrants violates the rule of law today. It might not next year. With several strokes of the pen, the Supreme Court and Congress could change the meaning of due process for asylum seekers and undocumented immigrants. As a result, in “the rule of law” vs. “law and order,” opponents simultaneously struggle to define and to change the law.

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*Academics distinguish among flavors of authoritarianism, only one of which is the “right-wing authoritarianism,” as Altemeyer describes in this link. Various types of authoritarianism are likely to be useful for understanding “law and order” politics.

**Judicial precedents matter in common-law countries such as the US.