Commentary: Individual Liberty and the Rule of Law

silhouette of Statue of Liberty
by Roger Kimball


I have been looking back over Alexis de Tocqueville’s unfinished masterpiece, The Old Regime and the French RevolutionIt is full of piquant observations, for example this from the end of the preface: “a man’s admiration of absolute government is proportionate to the contempt he feels for those around him.” How much contempt do you suppose emanates from the apparatchiks who inhabit the D.C. swamp and control our lives? How slavish is their devotion to the unfettered prerogatives of the idol they serve, the state?

That dialectic between adulation of the sources of power and contempt for those subject to it may in one sense be perennial, a sentiment captured by the old Latin tag: Proprium humani ingenii est odisse quem laeseris: “it is part of human nature to hate those whom you have injured.” But Tocqueville translated that psychological characteristic into the realm of politics in which the question of liberty is paramount. Like Edmund Burke, Tocqueville was a supreme anatomist of the ways in which power co-opts the passion for liberty in order to counterfeit liberty’s essence. Describing the habit of “governmental paternalism,” Tocqueville notes that “Almost all the rulers who have tried to destroy freedom have at first attempted to preserve its forms.”

This has been seen from Augustus down to our own day. Rulers flatter themselves that they can combine the moral strength given by public consent with the advantages that only absolute power can give. Almost all have failed in the enterprise, and have soon discovered that it is impossible to make the appearance of freedom last where it is no longer a reality.

I think that is more or less where we are now. You still hear people talk about the importance of individual liberty, the rule of law, limited government, and so on, but increasingly, I believe, the slogans are shot through with a brittle cynicism.

One sign of that decadence is the resignation that now greets every fresh assault on the impartiality upon which the rule of law, and hence liberty, depend. In a recent column for the Daily SignalLarry Elder asks “Why hasn’t Jussie Smollett been charged with perjury?” It’s a good question, and it’s one everyone knows the answer to. Smollett belongs to a protected class (actually, he belongs to several protected classes). As a black, gay, celebrity (“celebrity” for some: like Larry Elder, I had never heard of him until he ran afoul of the law), Smollett is more or less untouchable. True, he was just convicted of 5 out 6 felony counts for staging his own assault, but many commentators are speculating that he will serve no jail time for committing what can only be described as a racially motivated hate crime.

Or consider Kevin Clinesmith, the FBI lawyer who, in 2017, helped get the Russia collusion delusion going by altering a CIA email regarding Carter Page, one of the many pro-Trump figures who was harassed by the Justice Department. The CIA had identified Page as a CIA source. Clinesmith, part of the anti-Trump team that staffs the upper reaches of the FBI, changed the email to say that Page was not a CIA asset. This gave the green light for the Bureau to obtain a warrant from the FISA Court to spy on Page and, through him, on the entire Trump Administration.

Remember what happened to Mike Flynn? He was set up by the FBI and then lost his job as national security advisor and was bankrupted trying to defend himself. What happened to Kevin Clinesmith? In 2020, he pleaded guilty to doctoring the email and was sentenced to—are you ready—12 months probation. What Clinesmith did—altering an official document in order to get a warrant to spy on an American citizen so that the FBI could secretly surveil the Trump Administration—is a felony. Usually, a lawyer who is convicted of a felony is disbarred. Clinesmith got probation. Compare that to the multi-year prison sentences being meted out to several of the 700 people arrested for protesting at the Capitol on January 6, 2021. (As Julie Kelly has reported in scarifying detail, scores have been moldering in a D.C. political gulag for months, many in solitary confinement.)

According to a story in Just the News, “Five months after Clinesmith initially pleaded guilty, the D.C. bar temporarily suspended his license pending a review and hearing.” The review was completed in September and Clinesmith has been reinstated as an “active member” in “good standing.” Nice work if you can get it, and if you are part of the nomenklatura that rules the country, you can be sure of getting it.

Still, there is a small silver lining to this tale of corruption. Clinesmith was also a member of the Michigan bar, which automatically suspended him and imposed a small fine when he pleaded guilty. The Michigan tribunal was considerably more forthright about Clinesmith’s actions than the D.C. bar or the media, which treated the story with a big yawn. Clinesmith’s behavior, they said, was “contrary to justice, ethics, honesty or good morals; violated the standards or rules of professional conduct adopted by the Supreme Court; and violated a criminal law of the United States.” Yes, but is anyone paying attention?

To repeat Tocqueville’s warning: “it is impossible to make the appearance of freedom last where it is no longer a reality.”

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Roger Kimball is editor and publisher of The New Criterion and the president and publisher of Encounter Books. He is the author and editor of many books, including The Fortunes of Permanence: Culture and Anarchy in an Age of Amnesia (St. Augustine’s Press), The Rape of the Masters (Encounter), Lives of the Mind: The Use and Abuse of Intelligence from Hegel to Wodehouse (Ivan R. Dee), and Art’s Prospect: The Challenge of Tradition in an Age of Celebrity (Ivan R. Dee).








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