How we got here and what to do

Our federal government has been behaving with an open contempt for the rule of law: declaring that the president is the sole interpreter of the law; ignoring judicial orders; threatening judges; and punishing any law firms that dare oppose them.

What can we do about it?

In the short term, I think speaking out against this behavior is very important. Many high-profile businesses and law firms still appear afraid to do so, even though the Wall Street Journal editorial page, the American Bar Association and a majority of Americans agree on this issue.

It's totally understandable that some – federal employees and visa/green card-holders, for example – may not feel safe voicing opinions publicly. But I think those who are in more secure positions should try to create a critical mass of support for the rule of law in this country that cannot be ignored or bullied away.

We can also attend relevant events and rallies, donate to organizations engaged in litigation on these issues, and continue to tell our elected representatives to prioritize the rule of law in their legislative efforts. All of these efforts are vital in this time of crisis.

To really figure out how we might emerge and recover, though, I think we need to explore what got us here and try to address those longer-term issues.

How did we get here?

I think it's common knowledge that people around the world are angry and frustrated with elite institutions. In that environment, it probably shouldn't be surprising that it's politically popular to be seen as standing up to bureaucrats, academics and lawyers.

I don't have all the answers as to exactly where all the anger and frustration came from, let alone how to address it. But as a lawyer-bureaucrat that attended elite universities, I think I should make an effort to figure out why so many people are angry at people like me and see what changes we should try to make.

The best answer I've come up with is that while people have watched their wealth stagnate in the past several decades, that of the richest has grown massively, and at the same time an elite ruling class has lectured the masses about their supposed immorality and stupidity rather than doing much to help, empower or even listen to them.

There is plenty in this kind of indictment of the elite that I instinctively, defensively, want to argue back against, but I think it's more productive to focus on what I think are the best points being made.

To me, the wealth and income inequality numbers speak most powerfully. The country's, and the world's, resources just aren't even close to fairly distributed. And even if you lean libertarian but recognize the need for a somewhat stable and reason-based society, I'm not sure how you can expect people to have a calm, rational debate about race, gender, immigration or environmental policy when they have good reason to feel that the entire economy is stacked against them.

When inequality is out of control, people can be very unhappy even if GDP soars and aggregate wealth multiplies. After all, no one likes to feel like they have been left far behind the most successful even if they themselves could be getting “better” materially in an absolute sense.

We can debate what caused this massive inequality, but the experts I trust mostly seem to conclude it is primarily driven by economic gains from technological advancements and globalization and the failure of governments to enact policies that enable fair distribution of these gains.

Foreign countries tend to be the easiest political targets. For decades, many have opposed unfettered globalization. But in my lifetime the world’s governments have, until recently, remained quite committed to free trade despite this undercurrent of discontent.

This started to change a bit in the last two administrations, but apparently this was not happening quickly or dramatically enough for the current president’s taste. In a sense, I am honestly impressed that a leader was willing to impose such sweeping tariffs despite the predictable and uniform fury he faced from the economic elite across the globe.

But I don't think that even thoughtfully designed tariffs would fix inequality. Over the span of a generation, it’s perhaps possible that companies could decide to build more industrial capacity in the U.S., if they believe that tariffs are going to be in place long-term. But I am skeptical about how much globalization will ever really be reversed, and I think automation will continue to drive unequal economic gains regardless.

So what else should we do?

I am not saying we should or can do away with inequality entirely; I believe that some level of it is healthy to reward innovation and work. But, given where we are today, I think we desperately need policies that enable more people to share in the economic gains that have gone to a concentrated few, even if there is some economic inefficiency associated with those policies.

This means that I think elites like myself should be thinking about what we are willing to give up for others and the stability of society. It could be supporting inclusive and affordable housing even if it changes the character of neighborhoods and towns. It could be allowing more widespread participation in education in part by going after some of education's out-of-control costs and gatekeeping. It could be richer individuals paying more for public goods and services to make it less expensive for others to access them. It could be curbs on how big companies should get, to protect and encourage entrepreneurship. It could be plain and simple redistribution through the tax code.

At the same time, I think that chipping away at the elitism that has contributed to such widespread frustration means being more open-minded and listening harder to what people really want and need. This doesn't mean anyone should give up their convictions, values and informed decision making. But elites are not going to be successful in the long term if they view popular opinions as "noise" that can and should be ignored (I have heard this kind of characterization many times, particularly in the private sector).

To me, that means that anyone in power shouldn't be forcing their own political preferences into policy if those preferences aren't at least fairly widely supported. And any true leader should always be trying to figure out how to find common ground with others to the extent they can without compromising their principles.

Sadly, over time our society seems to have warped all political preferences into fundamental principles. Anything that supports businesses is seen as betrayal of the working class by the left; anything that regulates businesses is seen as communist by the right.

While we can debate which party is more inflexible, I think we should all try our best to break this tendency. If you are a liberal, I suggest reading sources like the Wall Street Journal; if you are a conservative, the New York Times. And don't just hate-read; really try to understand the other perspective and learn something. Gaining empathy for other viewpoints unlocks better ideas and makes us all better people. On the issue of rule of law, for example, it is worth liberals taking seriously the fact that many conservatives found the prior administration to often be less than fully respectful of legal boundaries.

I do think that some of our country’s overall polarization could be a result of our unusual, primary-based, plurality-wins electoral system that encourages all political views to be sorted into two doctrinaire political parties. I would like to see that reformed, but it may be quite some time before it is given the entrenched interests of party-members in keeping it the same.

Fortunately, there is another aspect of the U.S. system of government that is very good at enabling different political views to thrive and learn from each other. That aspect is our federal system, in which states and local governments can operate mostly independently from the national government.

As a member of state government, I have seen how many critical issues are actually dealt with outside of the national stage. I think we should take advantage of that more and shift our focus to more local issues rather than expecting every issue to be resolved in a uniform way nation-wide. Maybe shifting this mentality could make people less devastated when their party loses and lessen the instinct of federal leaders to anxiously push through partisan policies as fast as possible before they lose power again.

There is a limit to what state and local governments can do, though. It can be hard for any one state to impose policies that require elites to make sacrifices when they can pretty easily move to a different state (often more easily than moving to another country). So, I still think we need to, somehow, build an inclusive politics that can enact and sustain meaningful policies at a national stage that address inequality.

In the meantime, though, I remain seriously worried about the federal administration's attacks on the rule of law. If we cannot defend our most core political values - freedom of speech, free and fair elections, and the rule of law - then we risk creating a new kind of elite, one based on person-al favoritism. That kind of elite could turn out to be even harder to upend or budge and could exercise power far more arbitrarily than the system that it replaces.

So, I hope that more leaders will become more vocal with their opposition to rule by whim rather than by law. And I hope that, before it's too late, enough people will recognize how critical it is for society to have an independent judiciary and to provide access to effective legal representation to those who are politically disfavored at any given time.

When we really reflect on it, though, I think the truth is that we all have some authoritarian in us. If we generally agree with someone's preferences, it can sometimes be quite comforting to let them decide things for us, especially if the decisions are hard. And it can also sometimes be a little thrilling to impose our preferences.

Supporting or enabling authoritarian leadership can kind of get us a little of both of these feelings of comfort and thrill. It only really hurts when we are on the receiving end of a decision that affects us or we deeply disagree with, and maybe we can get over that if it doesn't happen to us too often.

So, if we are to turn back from authoritarianism, leaders across the rest of society on all political sides will not only need to prove that they can be more capable policymakers. They will need to overcome their own desires to control everything and their supporters’ natural tendencies to enable their worst instincts.

To pull this off, responsible elites are going to need to figure out what they are willing to live without to make society a lot fairer and a lot more respectful of others’ views.

What are we each willing to give up to help us get there?

I will be thinking about it and writing more.