Your Monthly Constitutional

YOUR MONTHLY CONSTITUTIONAL By: Stewart Harris

Lincoln Memorial University Duncan School of Law

UKRAINE AND THE RULE OF LAW

We lawyers often talk about the importance of the rule of law. Although the term does not appear in our Constitution, the concept is baked in. After all, what is a written constitution but a nation’s fundamental law? And when that constitution creates an independent judiciary, well then “constitution” and “rule of law” become synonymous.1

But ours is only one nation among many. And many of those nations do not have constitutions like ours. Even among those that do, the rule of law is, in practice, often absent. Why should we care about other nations? Why does it matter to us whether a nation is a representative democracy, like Canada or France, or an authoritarian regime, like Russia or China?

Well, there are several reasons, ranging from simple humanity to practical politics. Most of us in East Tennessee call ourselves Christians. Didn’t Jesus tell us to love our neighbors? Other religions espouse similar values. On the practical side, authoritarian governments have an annoying habit of attacking representative democracies.

Why do they do that? Why do dictators start wars with us? Well, theft is perhaps their chief motivation: They want our territory and our stuff. And then there’s racism: Authoritarians tend to think of themselves as master races, while the rest of us are only fit for slavery or death. And don’t overlook revenge: Authoritarians hold a lot of grudges.

Hitler certainly did. Germany’s defeat in World War I was something he simply could not abide. He subscribed to the “stab in the back” theory, that Germany had somehow been betrayed by shadowy Jewish interests. It’s significant that, immediately after overrunning Paris in 1940, he forced the French government to sign surrender documents in the same railroad car used for Germany’s surrender in 1918. Then he raised his right leg and stomped his foot in triumph.

Of course, Hitler was racist to his core: Not just the Jews, but the Slavs, the Romani—anyone who was not “Aryan”—was to be enslaved and murdered, as were gay people, the disabled, and other “subhumans.” And boy, did Hitler want territory—essentially, all of Eastern Europe. He called it “Lebensraum” or “living space.” The people already living in that space, well, we know what happened to them.

Once he consolidated his power in Germany, notably by murdering dissident Nazi leaders, Hitler embarked on his series of conquests. Among his first targets was the fledgling democracy Czechoslovakia, where Hitler first demanded the Sudetenland, an area with a large German-speaking population. Hitler said he wanted to “protect” the German speakers from Czech oppression. After getting his way at the infamous Munich Conference of 1938, Hitler broke his promise to go no further and invaded the remainder of the country in 1939. And the rest is tragic history.

But while theft, racism, and revenge are strong motives for authoritarian aggression, perhaps the greatest reason dictators hate free nations is our example. They don’t want their own people to see our wealth, our technology, our freedom. It might give them ideas.

So if authoritarian regimes are inherently hostile toward us, well, then, res ipsa loquitur: Clearly, it’s in our interest to promote democracy around the world. Countries like Spain and Sweden are not likely to attack us.

And there is strength in numbers. That is why, after the Second World War, the victorious Allies created the United Nations. For all its flaws, the UN represents a wonderful idea: that international disputes should be settled not by wars, but by laws. And perhaps chief among those laws is that no nation has a right to launch an unprovoked attack upon another. Among the UN’s biggest flaws is that it has little enforcement power. That is why NATO exists. The North Atlantic Treaty Organization was founded in 1949, in the aftermath of Stalin’s blockade of Berlin. The U.S. and its allies broke that blockade with a concerted effort called the Berlin Airlift. After the airlift, the West realized that it needed to band together permanently to deter further Russian aggression.

NATO works. Perhaps its greatest moment was when the “Evil Empire,” as Ronald Reagan called the Soviet Union, fell in 1991. For over forty years of Cold War, NATO had stood firm, until the corrupt Soviet system collapsed under its own weight. But the Cold War did not really end in 1991. After a brief period of hope, Russia sank back into authoritarianism in 1999, with the election of a new prime minister, an obscure former agent of the Russian secret police. The new prime minister’s name was Vladimir Putin.

Twenty-two years later, Putin has, like Hitler, consolidated his domestic power, imprisoning or murdering his rivals. Also like Hitler, Putin sees himself in grandiose terms, as a world-historical figure destined to avenge his country’s humiliation and restore its past glories. He has done everything he can to weaken NATO, spreading misinformation, sowing division, and even clandestinely supporting the election of a U.S. president in 2016 who was skeptical of NATO and friendlier toward Russia than toward America’s own allies.

And that is why Ukraine is important. Putin’s invasion is an attack not just upon a fledgling democracy, not just upon innocent grandparents and defenseless children, but upon the entire postwar international order. As lawyers, as Americans, we must defend the rule of law.

This is my last regular column for DICTA. Writing “Your Monthly Constitutional” over the past five years has been gratifying—thanks for all the kind emails and letters—and, I hope, useful. But it’s time to move on.

Remember: You are a part of the American Experiment.

1 “It is emphatically the province and duty of the Judicial Department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify.