Sunnie Ninh ‘18
Last week, Professor Claire Finkelstein from University of Pennsylvania Law School, gave a lecture at Smith entitled “Is the U.S. becoming a Constitutional Dictatorship? Executive Authority and the Rule of Law in the Age of Trump.” The lecture was sponsored by the Kahn Institute, a liberal arts research institute at Smith.
Finkelstein is an Algernon Biddle Professor of Law and Professor of Philosophy and Director of the Center for Ethics and the Rule of Law at UPenn Law School. She has published extensively in many areas of law, including works discussing the legality and ethics of war.
In 2012, Finkelstein founded the Center for Ethics and the Rule of Law at University of Pennsylvania, the only Center of its kind housed within a law school.
According to its website, “CERL’s central mission is to protect and promote the rule of law values and ethical principles, even in the face of international challenges such as conflict with violent non-state actors, irrational and dangerous enemies and transnational security risks.”
Professor Mlada Bukovansky introduced the speaker. She commented on Finkelstein’s expertise in political philosophy and the law. Finkelstein has published extensively in many areas, including criminal law theory, moral and political philosophy as applied to legal questions, jurisprudence, and rational choice theory.
“It’s really quite stunning, her energy and her productivity,” Bukovansky said.
Finkelstein began by acknowledging the harm that Trump had done to the U.S. democracy. She said that his rejection of toleration of diversity and assertion of the superiority of whites, among many other actions and beliefs, has created deep divisions that have shaken the social cohesion in this country.
“In the name of national security, Trump has fanned the flame of skepticism and the breakdown of trust,” she said.
However, in the following lecture, she argued that Trump is not unique in the threat he poses to values essential to the rule of law. Indeed, social order and the rule of law have come to be challenged ever since the civil war. She argued that currently, the primary threat to the continued robustness of the rule of law is the ever-increasing power of the executive branch.
The essence of the rule of law value, according to Finkelstein, is that “control over power in a society must flow from a legal framework, not individuals.” She went on to explain that for the value of the rule of law to be respected in society, two conditions must be met: the law must constrain the exercise of governmental power, and political leaders must accept the normative validity of the law from the inside point of view.
She rebuked the argument that particular instances require us to deviate from the rule of law, such as in a national emergency, warning that this tolerance is a “vehicle for its own destruction,” leading to a slide into a constitutional dictatorship.
Finkelstein then moved on to discuss how the increased interest in national security sabotaged the rule of law post-9/11. Individuals that helped design and enforce enhanced interrogation techniques, for example, were never investigated thoroughly even though such behavior is clearly illegal.
She argued that the Obama administration chose not to prosecute the enhanced interrogation technique because the same legal foundation was used for the targeted-killing program that was expanded under Obama.
She also commented that the judiciary branch’s compliance with the executive branch in its legal argument that cases on the targeted killing program risks its independence and its ability to restrain executive power.
Finkelstein ended by talking about about the importance of personal ethics and the character of leaders. She said that contempt for law and lack of personal ethics have a corrosive effect on the rule of law in the society, likening the fidelity to the law of public leaders to the cement in a brick wall.
“All politicians want power, what distinguish[es] great leaders from mediocre or corrupt leaders, is the willingness to use the constraints rather than reject them,” she said.
When answering a question on how to get return constraints to the executive branch, Finkelstein answered that it is tough to restore when you fail to vindicate the violation of law, such as in the case of enhanced interrogation techniques.
However, she ended the answer with a hopeful tone. “Each time the government complies with the court rulings, we restore some of the damage.”