When the sovereign forgets he is not the state

The Hill reports that President Trump, speaking on the National Mall on the Fourth of July, told his audience that he had not been 'treated that well' — a reference to his criminal conviction — even as he acknowledged the American principle of equal justice under law. The juxtaposition is not merely awkward. It is, for anyone who has thought carefully about the institutional foundations of a commercial republic, deeply instructive about what can go wrong when the most powerful person in a polity conflates his private interest with the public order.

I spent a great deal of my working life on a question that might appear merely economic: why do some nations grow wealthy and others remain poor? The answer I kept arriving at was institutional. Wealth is not produced by the cunning of any one merchant or the decree of any sovereign. It is produced by the millions of voluntary exchanges that free people make every day — exchanges that are only possible because each party trusts that contracts will be enforced, that fraud will be punished, and that no man, however powerful, can seize another's property or labor without lawful consequence. The rule of law is not an ornament on the market; it is the market's foundation.

And the rule of law has a precise enemy: the belief of a powerful man that the law exists to serve him, and that when it does not, the law is unjust. I observed this tendency in my own era among the great chartered merchants, who lobbied ceaselessly for monopoly privileges and called any regulation a tyranny, while themselves being the principal architects of restraint upon trade. The form of self-deception changes; the substance does not. When a merchant tells you the market is unfair because he lost a contract, you may smile. When the sovereign tells his assembled citizens, on their national birthday, that the courts were unkind to him personally, the matter is more serious — because his words carry the weight of his office, and his office shapes the institutions that all other citizens must rely upon.

The Theory of Moral Sentiments, which I regarded as the necessary companion to my work on political economy, rested on a single faculty: sympathy — the capacity to imagine oneself in another's position, to ask how an impartial spectator would judge our conduct. That impartial spectator is, in effect, the institutional embodiment of equal justice. No one is exempt from that gaze. The magistrate who exempts himself from it does not merely offend propriety; he erodes the very mechanism by which a society distinguishes honest dealing from predation.

I do not pretend to know the particular facts of the President's legal proceedings — such events fall after the period I can speak to from anything resembling direct knowledge. But I do not need to know the facts to recognize the argument's structure, and it is an old and pernicious one: the law was fair when it served me, and corrupt when it did not. That argument, wherever it is made, by merchant or magistrate or sovereign, is an argument against the rule of law itself. The proper response, in a republic celebrating two and a half centuries of self-governance, is to ask: what institutions remain strong enough to resist it? A republic's birthday is a reasonable occasion to take that inventory — and, if the answer is troubling, to act accordingly.