Rules Matter. For Everyone.

Hey,

It’s telling that the phrase “never forget” has supplanted “never again.” Of course, it may just seem that way because “never forget” is the slogan most often used to commemorate 9/11, while “never again” was born out of the Holocaust.

I grew up being told to never forget “never again.” I went to a reform Jewish grade school where teaching the Holocaust was considered in no small part synonymous with teaching Judaism. 

But here’s the first problem: People forget.

Since 1945, when “never again” entered the modern lexicon, every decade has seen at least one genocide or mass  killing, often using concentration camps, on a scale that certainly violates the meaning of “never again.” The Khmer Rouge killed 1.7 million Cambodians. Some 800,000 died in Rwanda. One million Indonesians, mostly ethnic Chinese, were purged by Suharto. No one knows how many Bangladeshis the Pakistani army killed in 1971, but estimates range from 200,000 to 3,000,000, and some say as many 400,000 women were raped. In the early 1980s, the Guatemalan military slaughtered Mayans, and in the 1990s, Sudanese Arabs killed Sudanese Africans by the hundreds of thousands. The North Koreans may not have strictly had a policy of genocide, but the whole country is a concentration camp and hundreds of thousands have starved to death because that is a tolerable loss for a regime that cares more about power than human lives. And right now, China has up to 1 million Uyghurs in concentration camps as the regime erases their culture and history. The ruling Chinese Communist Party responsible for this policy is the same party that oversaw the deaths of tens of millions during the Cultural Revolution.

Here’s the second problem: The issue isn’t remembering, it’s caring. Think of it this way: We still remember the Fourth of July, but how many people care—really care—what it was about? I have no shortage of Christian friends who lament that while everyone remembers Christmas, too few people care about its deeper meaning. And these are joyous occasions. How many people care on an emotional level about the Civil War, or World Wars I and II, save as fodder for movies? Imagine if you were a combatant in one of those wars looking back on the carnage and destruction you witnessed firsthand. You might think it impossible anyone could forget, never mind cease to care about those horrors. But that’s exactly what happened.

And even if those conflicts have purchase on our memories, what about the countless wars and horrors that took place in the centuries before them? Who sheds a tear over the Albigensian Crusade? In the 13th century, the Mongol armies might have dispatched between 30 and 60 million souls (which might have been roughly 10 to 20 percent of the world’s population). The destruction of Carthage is sometimes called “the first genocide.” Tell that to the Neanderthals.

Two and half cheers for rules.

So what’s the point of this gloomy review? Rules matter.

I’ve written a lot about how traditions are essentially storehouses of trial and error. People experimented with one practice after another and learned from the results. Over time, those lessons formed rules, and many of the people who live by them today don’t even know why the rules came into existence. The first people to cook discovered that cooked food has a longer shelf life (even though they didn’t have shelves). They also discovered that some things that can’t be eaten raw can be eaten if boiled or broiled. Centuries later, very few of the people who cooked food understood the rudimentary science of discovery that went into the practice. When you open a can of Dinty Moore beef stew, you probably don’t take a moment to thank Napoleon, but you’re a beneficiary of his efforts nonetheless. Similarly, people drank beer because drinking beer was something everyone did—and because beer is good—without knowing that the bacteria-killing alcohol in the beer is what kept them and their ancestors from dying from some bowel-stewing disease in the first place.

This is how we get rules, too.

Any sociologist worth a dime will tell you that manners and customs developed at least in part as a way to minimize violence. Your grandmother didn’t lecture you about good manners because she was afraid you might get killed by some Hun or Mayan, but that doesn’t mean the rules of good manners aren’t important.

I never served in the military, but I know enough about military training to know there are a lot of rules that are passed on to trainees that can probably be traced back 1,000 or even 10,000 years to the best practices of some forgotten army. March this way, not that way. Establish this kind of perimeter. Who knows who first decided that making your bed every morning is important—never mind why it’s important? But the rule endures. Training is a brilliant way of distributing and incorporating the wisdom that was learned from failures—and successes—long forgotten behind the veil of the past.

None of this is to say that just because a rule exists it is therefore right or good. People often make bad rules. And lots of good rules lose their usefulness or legitimacy. But as with Chesterton’s fence, it’s best to know why the rule exists before you propose getting rid of it.

And often, if you test a theory about why a rule should be repealed or ignored, you’ll be rewarded with the same science of discovery that introduced the rule in the first place. For instance, let’s say some city council buys the poltroonish theory that the only reason we have police is because police were fugitive slave patrollers and abolishes them. You’ll soon learn that we have police for lots of reasons that have nothing to do with chasing escaped slaves.

Our utilitarian constitution.

Rules are not necessarily laws, but laws are quite obviously rules. 

If you read the debates among the Founders—in The Federalist Papers, their letters, etc.—it becomes very clear very quickly that they remembered and cared about a lot of stuff the rest of us have either forgotten or never knew. They examined Ancient Rome, the Republic of Venice, the wars of religion, and countless other events—and they gleaned rules from them.

Now, I think those rules are wise. Not all of them, to be sure. The three-fifths clause may have been wise or defensible at the time as a necessary compromise. But eventually that rule had to go, because slavery had to go.

But my point is not about the wisdom of rules, but their utility. “Rule utilitarianism” is a complicated subject, so I’ll just talk about the utility of rules. Some people think that because a rule is arbitrary it serves no purpose or has no legitimacy. Sometimes they’re right. Some rules, however, are arbitrary but still vital. There are actually non-arbitrary reasons why we drive on the right side of the road and why stoplights are red. But let’s say there aren’t. Someone just flipped a coin and said, “Let’s drive on the right side,” or, “Red is my favorite color, let’s use that.” That doesn’t change the fact that it’s really important that we have one set of rules for everyone to follow. If these rules changed state by state or county by county, people would die. Simply having one clear rule that binds everyone maximizes not just efficiency, but safety, which is no less a moral good just because it’s a utilitarian one.

In economics, a rule is just another word for an institution. Institutions build up around rules like coral around a sunken oil rig. Maybe you shouldn’t have built the rig in the first place, but once the coral—and the sea life that depends on it—grows around it, short of a really good argument for removing it, you should leave it be. 

Wrecking the coral reefs of norms.

Because I’m generally sick of punditry, I’ve saved it until the end.

Few things disgust me more about a certain segment of the right these days than the constant scorn and ridicule of “norms”—“democratic norms,” “constitutional norms,” “presidential norms,” etc. When Trump was president and regularly defiling such norms like a rampaging viking at an English wedding, this crowd would turn any criticism into dumb snorts of “orange man bad” or “muh principles.” But now that Biden is in office, they love to grab these same norms and use them as cudgels, scoring points about liberal hypocrisy. Of course, they’re (often) right. But there’s little—and by little, I mean pretty much zero—acknowledgment that they abandoned and ridiculed these norms when Trump was in office. 

Indeed, they still mock such norms when applied to Trump and his imitators like J.D. Vance,  Josh Mandel, and the lesser gargoyles and gibbons gabbing and gibbering from their perches. These people are furious at Gen. Mark Milley for—allegedly—breaking important norms without acknowledging that whatever he did, right or wrong, was facilitated by a president who made it clear he was immune from norms. We can acknowledge that two wrongs don’t make a right while also acknowledging that one wrong can invite another.

Meanwhile, many of the Democrats and liberal pundits who spent the last five years prattling and preening about their love of norms have grown quiet. I could fill pages with examples. Under Trump, the idea of abolishing the filibuster was a mortal threat to democracy. Now it’s the only thing that can save democracy. The people who applauded Chief Justice Roberts for saying there was no such thing as Obama judges or Trump judges now spend their days saying that Trump judges are partisan hacks, even though those same judges delivered one defeat after another to Trump. When Trump said he had total authority to do what he wanted during the pandemic, it was an outrage and crime against the constitutional order. Now that Biden has discovered he has such authority—via OSHA!—they think anyone who raises constitutional concerns is a partisan, a crazy ideologue, or part of a “death cult.” When Trump found a ridiculous pretext to pay for his wall, the Constitution was in peril. When Biden found a ridiculous pretext—which he admitted was unconstitutional—to extend an eviction ban, he was a hero. Or forget Trump: The Democrats are actually arguing that because Republicans spent money recklessly when they were in power, they should be able to spend recklessly, too.

It’s all like someone saying, “Your team has to obey the rules and stop at red lights, but my team doesn’t.”

Let me be clear: My point isn’t about hypocrisy. The hypocrisy is bad, but it’s only smoke generated by a far more dangerous fire. People are putting torches to the rules, but all they know how to do is complain about the other teams’ smoke.

Again, I think the Constitution is a storehouse of a lot of wisdom. But there’s plenty of stuff in there that is—for our purposes—arbitrary. Election Day doesn’t have to be the Tuesday after the first Monday in November, but there does need to be an Election Day. (Though, alas, we now define Election Day not as the day we all vote, but as the last day you can vote.) History would have likely played out the same way if each state had three senators instead of two. But there is utility all the same in sticking to those rules once they’re agreed upon.

If you want to change these rules or any others, fine. If you don’t like guns and the right to keep and bear them, then amend the Constitution. Have a debate. Follow the rules.

But when you embrace the idea that rules are important for constraining your opponents but trivialities to be circumvented or rolled over otherwise—the way Biden wants to rollover governors in the way of his proposed vaccine mandate—you’re telling your opponents to adopt the very same tactic.

I’m a broken record on Congress’ dysfunction, but let me say it again: Congress is the place where politics is supposed to happen. It’s where elected officials are sent to hammer out the rules. But because that requires too much work and puts their reelection at risk, they’d rather have the president or the bureaucrats do their jobs for them. I personally think the Founders would be okay with a national vaccine mandate under the right conditions—i.e. if passed by Congress. I might be wrong on that. What I am sure about, however, is that they would have stared at you with unblinking incomprehension if you said the Occupational Safety and Health Administration, under something called the Department of Labor, had unilateral authority to impose one without authorization from Congress or even an executive order.

Saying this doesn’t make me a death cultist or an anti-vaccine nutter or even a partisan. It makes me someone who cares about the rules.

Rules are the guardrails that carry the hard-learned lessons of the past into the present. In a healthy civilization, you don’t get despots or genocides that must never be forgotten if people in power obey the rules.

Because while everyone likes to say some version of, “Those who forget the lessons of the past are condemned to repeat it,” they’re wrong. We forget the past all the time. Heck, lots of people don’t even learn enough about the past in the first place to be in a position to forget it. What we have are rules. We can live just fine in a society that forgets the past—at least for a while. We can’t live in a society that rejects the rules because, at the end of the day, that’s what a society—and a democratic civilization—is: A group of people who agree to follow a certain set of rules until someone makes an argument about why we should change them and the people in charge of changing the rules follow the rules about how to change them.

Civilization: It’s rules all the way down.