If you want to understand what makes the United States exceptional on an emotional level, take an in-person or virtual trip to both Mt. Vernon, Virginia, and Paris, France. At Mt. Vernon, you can tour the preserved and reconstructed plantation of George Washington, viewing what the tour claims is the first compost bin in the nation and reading about the particular way he organized his gardens.
The most important part, though, is his grave. The first President of the most powerful nation on Earth rests in a modest brick mausoleum about ten feet high, built into a hillside. The plain white room containing the sarcophagi of Washington and his wife is barely larger than the two coffins themselves.
The French have a very different tomb dedicated to the founder of their modern nation. Emperor Napoleon rests in a stone sarcophagus on a raised dais in a huge domed building. To American eyes, the building looks like one of our state capitals, complete with columns, domes, Greco-Roman reliefs, and multiple entrances. The room containing the sarcophagus is opulent, with detailed carved statues of Roman figures, golden trim, ornate hanging lamps, large windows, and a large second-story balcony. It is less a grave than a temple, deifying the person of the Emperor.
This striking difference tells you much of what you need to know about why the United States has done so well for so long. The father of our nation and his contemporaries did not believe in deifying their leader. Washington was keenly aware of setting a humble precedent by everything he did, from limiting himself to two terms to adopting the title “Mr. President.” His legacy to all of us was not in his personality, but in the processes and structures he built that lived on after he did. By his design, we pay respect to our founder by operating the wondrous democratic machinery he first showed us how to operate.
My opinion of Washington as the best American President is not unanimous. Many studies that rank the Presidents place Abraham Lincoln first, while Washington tends to appear somewhere in the top five. This always struck me as unfair. Lincoln was remarkable, to be sure, and ending the scourge of slavery guarantees his place forever as one of the best Presidents. Yet, he arrived on the scene with a particular existential problem to solve - a civil war that was clearly about to erupt over the slavery question. His capacity for greatness was amplified by exterior forces presenting him with a clear crisis.
Washington, more than any other President, arrived with a blank slate. His existential crisis had come years before, when he survived a war with Great Britain. By the time he came to office, the most serious existential dangers to the country came in the form of future risks. Washington’s challenge in office was not so much how to defeat an enemy in front of him, but how to build a system that could handle enemies in the future. It is harder to create than to destroy, and harder still to build a strong structure for a future you cannot fully predict.
Process theory suggests that the aim of a law should not be to obtain a particular substantive result, but to adopt and defend processes that tend to lead to good results. It isn’t hard to see the utility of this approach. People are going to disagree about what is good and what is bad and to what degree. Some such disagreements may be distant from the passions of most citizens, like what kind of crops to encourage farmers to grow or who to hire for a government construction contract. Others may be very close to the heart, such as whether to outlaw abortion or how immigration should work. In each case, because there are passions and well-reasoned arguments pulling in different directions, there has to be some process to decide what to do. A core function of government is helping mediate that outcome.
Washington wasn’t a process theorist exactly. In fact, he did not write much at all about the philosophy behind his governance. But his instincts were very process-based. He believed that a regular process was what distinguished the republic from the extremes of monarchy or mob rule. He strove to mediate carefully and fairly between the political divisions of the day among his own cabinet members and in his interactions with Congress. Even his more extreme actions, like putting down the Whiskey Rebellion (a major use of federal military force against citizens), came from a sense of duty to uphold duly enacted law rather than any sense of solving a problem by any means necessary. Washington left us with an example and a legacy of respect for the process and for the rule of law.
There will always be those who feel passionately in the correctness of their substantive position and who believe anyone who feels differently is evil. After all, if you believe you have the best interests of the country in mind and you’ve determined the right solution to a problem, doesn’t that mean anyone who disagrees with you must be treasonously acting against the country’s interests? This is a very natural trap to fall into, and some of the less successful Presidents did so. President Adams passed heavy-handed censorship laws based on this logic, called the Alien and Sedition Acts, which are now widely recognized as ineffective.
Thinking of anyone who has a substantively different opinion as evil is a mistake. We are all limited as human beings, impacted by our life experiences, knowledge, and skills. Indeed, the major benefit of the rule of law is as a way to mediate differing ideas, leading to better results than a single person’s judgment alone. A fair process must be respected and accepted to make this happen. To declare that the process should not stand in the way of one’s own passionately held belief is Napoleonic hubris.
Disregarding the rule of law to force through a result is also extremely dangerous. People are going to have disagreements no matter what processes are in place. If there is no agreed upon process for resolving those disagreements, the parties will decide the issue some other way. The most ancient method is physical violence. Without a respected legal process, if two neighbors disagree over how much water each is extracting from the stream, murderous action could end that disagreement. In addition to being morally abhorrent, that process does nothing to make sure the decision was made correctly.
Adherence to the established rule of law as a way of solving problems leads to better outcomes. Similarly, the idea of a single strong leader who cuts through the “red tape” of process to fix a problem is similarly flawed. A modern state is a massive, complex system. No single person understands its operation alone. Swift, decisive action simply results in faster bad decisions.
We best honor the legacy of George Washington and others responsible for the freedoms we enjoy by respecting the process that was their greatest legacy. None of us will always agree with the results of the process. But the last two hundred years of the United States becoming the leader of the world should give us powerful evidence that the rule of law is effective. Washington did not need a gaudy display of opulence to declare his successes, as the greatness of his hard work has thundered for hundreds of years.
Colin E. Moriarty is a partner at Moriarty Underhill LLC and a volunteer with Lawyers Defending American Democracy.
Trump is stuck between two realities. Neither serves the American people