Cliven Bundy is in the wrong. He is nevertheless a sympathetic figure, and the concerns raised by the standoff in Nevada transcend the illegality of his conduct.
Lincoln’s speech [addressing Congress on July 4, 1861, Lincoln defended his suspension of the writ] does justify law-breaking in extraordinary circumstances. I’d construe his argument as follows: Even if what I have done is unlawful, it was necessary because it was done for the higher purpose of preserving the system that protects our liberties—under dire circumstances where violating the law was more faithful to the Constitution than obeying it would have been.
The underlying assumption of our belief in the rule of law is that we are talking about law in the American tradition: provisions that obligate everyone equally and that are enforced dispassionately by a chief executive who takes seriously the constitutional duty to execute the laws faithfully. The rule of law is not the whim of a man who himself serially violates the laws he finds inconvenient and who, under a distortion of the “prosecutorial discretion” doctrine, gives a pass to his favored constituencies while punishing his opposition. The rule of law is the orderly foundation of our free society; when it devolves into a vexatious process by which ideologues wielding power undertake to tame those whose activities they disfavor, it is not the rule of law anymore.
The legitimacy of law and our commitment to uphold it hinge on our sense that the law and its execution are just. As John Hinderaker points out, concerns about the desert tortoise—the predicate for taking lawful action against Nevada ranchers under the Endangered Species Act (ESA)—turn out to be pretextual. The ideologues who run the government only want to enforce the ESA against a disfavored class, the ranchers.If you’re a well-connected Democrat who needs similar land for a solar project, the Obama administration will not only refrain from enforcing the ESA against you; it will transport the tortoises to the ranchers’ location in order to manufacture a better pretext for using the law to harass the ranchers.
When law becomes a politicized weapon rather than a reflection of society’s shared principles, one can no longer expect it to be revered in a manner befitting “political religion.” And when the officials trusted to execute law faithfully violate laws regularly, they lose their presumption of legitimacy. Much of the public is not going to see the Feds versus Bundy as the Law versus the Outlaw; we are more apt to see it as the Bully versus the Small Fry.