. . . uphold the rule of law, says constitutional law professor John O. McGinnis.
We are left with the choice of a candidate who will be inclined to lawlessness by temperament [referring here to Mr. Trump] and one who will be inclined to lawlessness by ideology and circumstance [Ms. Clinton]. This unhappy dilemma is more evidence that we face . . .
The snips below (emphasis added) explain why the rule of law matters, according to Mr. McGinnis, and why Ms. Clinton "poses a grave threat to the rule of law."
If you are interested in Mr. McGinnis's righteous takedown of Mr. Trump, read the article. The case against Ms. Clinton is more important, however: Mr. Trump is a one-off skirter of law, but Ms. Clinton represents a powerful political movement -- progressivism -- that is undertaking, with some success, to destroy the rule of law.
The proposition that we are a republic of laws, not of men, is more than a conceit. Societal respect for the rule of law allows people to plan for the future. It enables them to be secure in their property. It promotes self-help and prevents violence. It also tamps down on political conflict and polarization, because it forces social movements to go through legal processes to change the law. In the United States, these processes are purposefully laborious. Creating new legislation at the federal level requires agreement between both houses of Congress and the president. Changing the Constitution requires two-thirds support in both houses and three quarters of the state legislatures. The requirements of consensus for legislation and constitutional amendments produce compromise, forcing people to work together.
Sadly, neither of the major-party candidates in 2016 can be trusted as a conservator of the rule of law. . . .
Hillary Clinton also poses a grave threat to the rule of law, less because of her temperament than because of her ideology. Clinton is a progressive, and progressivism in the United States was born in no small measure as a revolt against the fundamental rule of law. Progressives don't like the basic structures of the Constitution—federalism and the separation of powers—because these features thwarted social change and created obstacles to the efficient, administrative government that progressives felt could engineer a better world. Progressives proved unwilling to go through the process of constitutional amendment to change the plan of government. Hence, in the New Deal, they supported the appointment of Supreme Court justices who both gutted the enumerated powers that restrained the federal government and blurred the separations of powers that constrained the executive.
In the latter half of the twentieth century, progressive focus shifted to celebrating judges who would fabricate federal rights that were not actually in the Constitution—like the right to have an abortion—and impose them on the nation. Both the decline of federalism and separation of powers in our constitutional plan have generated political polarization. Federalism allows ideas to percolate and consensus to develop. In contrast, a strong federal administrative state means that policy will tend toward the extremes. The president feels justified in catering to the partisan voters who got him nominated rather than the broad middle of the nation.
President Hillary Clinton would further weaken the institutions that protect our rule of law. She won’t appoint justices dedicated to following the original meaning of the Constitution. Instead, her judicial appointees will be inclined to create new substantive rights favored by the Democrats even when those rights are nowhere contained in the Constitution. She is also dedicated to the latest progressive cause—weakening free speech, a right actually in the Constitution—in order to defend the political hegemony that progressives otherwise enjoy in the press and the academy. Her pervasive lack of constitutional fidelity counts heavily against her, because there is already a vacancy on the Supreme Court and there is likely to be one or two more during her first term.
Moreover, given that her party will almost certainly not control both houses of Congress, she will likely continue the pattern of President Obama’s last six years in office—attempting to rule by executive decree rather than by forging legislative compromise in matters such as immigration and health care. The result here, too, will be greater polarization, as opponents will be enraged by her high-handed methods. These practices will also put more pressure on the basic framework of the separation of powers, as the Supreme Court faces the choice of opposing a democratically elected president or enforcing statutes and the Constitution as written.
. . . .
The question, then, of which candidate will advance the long-run rule of law isn’t an easy one to answer. We are left with the choice of a candidate who will be inclined to lawlessness by temperament and one who will be inclined to lawlessness by ideology and circumstance. This unhappy dilemma is more evidence that we face the least inspiring choice for president in our entire history.