On Tuesday, I spoke at the Zionsville Christian Church. I had been asked to define what is meant by the “rule of law,” and to explain why it is important. This is what I said. (Warning: longer than my usual posts.)
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Those of you who read my blog know that I refer a lot to the rule of law—how important it is, and how very negative the consequences are when governments ignore or violate it. What I don’t do often enough, however, is explain just what the rule of law is, and why it is the absolute bedrock of democratic governance.
Depending upon how you count them, there are seven essential elements that together make up the rule of law.
You’ve undoubtedly heard the first—the one most often cited by scholars and lawyers. That’s legal supremacy, which means that the law—the same law—applies to everyone. Another way to say that is “No one is above the law.” The importance of equal application of the law to everyone should be obvious; if elected or appointed officials weren’t restrained by the law, if We the People had to obey the laws but those in authority didn’t have to, the result would be what we lawyer types like to call “arbitrary and capricious” behavior by government officials, who would be free to use their authority in unfair and unjust ways, as monarchs used to do.
In democratic countries pledged to the rule of law, we don’t have kings who are free to ignore the rules the rest of us must live by.
The second element is really another version of the first. If the law applies to everyone, then everyone is entitled to equality before the law. In an ideal “rule of law” system (which I’m compelled to admit we’ve never had), everyone would have equal access to—and equal treatment under– the laws of the land. Things like social status, wealth, elective office, and popular or unpopular political beliefs wouldn’t affect access to or operation of the legal process or the way the laws are applied to individuals. The rule of law requires us to work toward a system in which laws and legal procedures are applied to all individuals equally and without favoritism.
To take an example from the headlines, under the rule of law, a government accusation that someone is a “bad actor” or a gang member, or “a threat to America” cannot relieve that government of its obligation to demonstrate the validity of such accusations in a court of law before it can punish that individual. That is what is meant by “due process of law” and due process is foundational to a fair and impartial legal system.
The third element of the rule of law is accountability. In other words, We the People are entitled to know what our government is doing, and whether it is functioning in a constitutionally appropriate manner. In the United States, a major element of accountability is built into our constitutional structure—what most of us learned in high school government classes as “checks and balances”—the division of legal authority among the Executive, Legislative and Judicial branches of our government.
We are now seeing what happens to accountability and the rule of law when one branch of our government fails or refuses to exercise the powers granted to it by the Constitution—when the legislative branch allows the executive to appropriate and abuse powers that have been vested in the legislature. Future historians—assuming we have them—will identify that cowardly failure as a rejection of both elective responsibility and the rule of law, and a betrayal of the Constitution and of the individual legislator’s oath of office.
The fourth element of the rule of law is its interpretation and application by a fair and independent judiciary. Federal judges have lifetime appointments because the Founders’ believed that judges should be shielded from political passions and reprisals, that they should be able to apply the law and facts as they see them, free of pressure or bias.
That judicial independence has recently come under an unprecedented attack, when the administration arrested a Wisconsin judge who failed to knuckle under to demands by ICE to turn over a defendant in her courtroom.If Judges can be arrested for disagreeing with the executive branch about their authority,–in this case, evidently because the judge found ICE had an incorrect warrant–we no longer have checks and balances or the rule of law.
The Founders’ goal of judicial independence remains important, but it’s true that in today’s America we have encountered a consequence to lifetime appointments that the Founders didn’t foresee; Americans today live much longer and there is consequently much less frequent judicial turnover –especially at the Supreme Court. That concern is heightened by evidence that at least two members of the current high court are ethically compromised.
The lower federal courts, on the other hand, have been functioning properly; those courts have issued a number of important decisions upholding the rule of law and restraining Trump’s flood of unlawful and unconstitutional executive orders. Unfortunately, within the legal community there is substantial concern about the degree to which our compromised Supreme Court will uphold those lower court decisions. Should it fail to do so, we risk losing the rule of law.
If we do emerge from this terrifying time with our legal system largely intact, imposing 18 year term limits on Supreme Court justices—as many scholars have suggested– would achieve the Founders’ goal of insulating jurists from political pressure, while also minimizing the risks of judicial senility. (If the legislature once again operates properly, judges shown to be ethically compromised can be impeached.)
The fifth element of the rule of law is certainty. Laws must be clear and understandable in order to allow citizens to know what behaviors are expected of them. When you read that a law has been found “void for vagueness,” it’s because some legislative edict has failed to clearly explain what behavior is being banned or required. Certainty also requires continuity and predictability—meaning legislators should avoid frequent and dramatic changes in the laws that make it hard for citizens to keep abreast of their responsibilities.
The sixth element, again, is implied by others: all citizens must have access to the legal system and the means of redress. That means all are entitled to legal representation and to fair trials with impartial judges.
And finally, the seventh element echoes the protections in America’s Bill of Rights: the rule of law must protect the rights that have been found essential to human liberty—what we call “human rights.” As I used to tell my students, it’s important to recognize that the Bill of Rights does not confer rights on American citizens—it forbids the government from interfering with the inalienable rights that we possess by virtue of our humanity.
Those basic rights include freedom of speech and religion, the right to due process, the freedom to go about our business without arbitrary interference, freedom from excessive, cruel or unusual punishments, the right to trial by jury, the right to be treated equally by our government…in other words, the right to live under a regime that respects the rule of law.
Everything I’ve said so far has revolved around longstanding notions of fairness and morality, but I would be remiss if I didn’t point out that there are also very practical reasons for supporting the rule of law. Mountains of scholarly research have confirmed that countries where the rule of law is established and respected are more stable and have far more robust economies. As we are seeing, uncertainty and chaos are bad for business!
Attacks on the rule of law like those we are currently experiencing destroy trust in government, undermine the economy, and promote conflict and violence.
No government is perfect, and ours certainly can be improved. But improvements have to be made with fidelity to the Constitution and the rule of law—not from the willful destruction of the underlying philosophy of this country, a philosophy I call “The American Idea.” It is that Idea, that philosophical framework, that insistence on the primacy of the rule of law, that has fostered social progress and truly made America great.
It’s up to We the People to protect it.
Well said. Thank you.
Professor-I cannot thank you enough for this lesson. Please share this with POTUS ‘Trump.
I’m not sure that I would go on record claiming that our legal system is a part of what makes us great because it was corrupted decades ago, if not from the very beginning. Some cases make us feel good about the American Idea, but they are very few and far between. Trump’s entire life story with the legal system is a great example. Wikipedia even has a dedicated page to his court cases, but there should be a page for what hasn’t been brought up in a court of law.
Our Attorney General’s have had videotapes of young teen women being raped by our highest officials in this land and other lands, and not one single conviction. It doesn’t matter what stripes those AGs were; none have filed a single charge against the perps.
I have a friend who works at the county jail, and he said Indiana’s prison system is full of CHMOS – child molesters. However, they are grotesque commoners.
As Vern points out, his favorite jurist, Antonin Scalia, was one of the most corrupt judges SCOTUS has ever had and legalized the bribing of public officials. We have a few jurists now who want to knock Scalia from his throne.
If anything, Dear Leader has made a mockery of our legal system his whole life, especially during his rule in both the first and now early second chapters. One of my favorite memes is a picture of a skeleton sitting on a couch looking out the window, captioned “Me Waiting for Trump to be Held Accountable.”
When Epstein was busted in Palm Beach County, they were told to stop their prosecution because “Jeffrey is a protected asset.” Epstein isn’t the only protected asset in this country.
I know I’ve focused a lot on our criminal justice system, but when I think about how our planet has been destroyed, I blame the laws and our public officials. How did every single one of our Hoosier waterways become polluted? Doesn’t IDEM enforce regulations to prevent that from happening? Even the polluted waterways in Ohio contaminate our rivers and streams. When I accused Ohio’s environmental department of corruption, they threatened to sue me. I published my story anyway. Nothing happened.
Our country doesn’t just ignore the US Legal System, we ignore International Laws that we helped set up post-WW2. The UN keeps filing claims against genocide and Israel’s role in the mass murder of women and children, and our government sanctions the jurists at the UN. WTF??
How is this allowed in our once exceptional country? Either it was once exceptional and lost its way, or it was never really impressive in the first place. There have always been rules and laws for the commoners, but exceptions are carved out for the oligarchs and the officials they own. That’s probably been true of every organized society.
Many government leaders here proudly carry a published version of our Constitution in their pockets. It would appear, though, that many have never read it or, if they have, don’t understand it well enough.
This paragraph from Sheila is probably a better reference for those who find learning difficult.
“Those basic rights include freedom of speech and religion, the right to due process, the freedom to go about our business without arbitrary interference, freedom from excessive, cruel or unusual punishments, the right to trial by jury, the right to be treated equally by our government… the right to live under a regime that respects the rule of law.”
Ensuring all government officials apply those words exactly is a fundamental responsibility of everyone in our government.
The current government’s behavior suggests that very few see those words as the most essential of their responsibilities.
Why? I would say most have sincere, deeply held beliefs that all citizens are not equal under the law and that there are instead distinct classes of citizens, each with different rights.
Like all of us, our government has always been deeply flawed. Our behavior and that of those in government tends to be self-centered and ignorant of what we need to have been taught at an early age to ingrain it in our behavior 100% of the time.
The constant improvement of government when it is reliable is called progress, and the people who focus on improving what is within their capability are where reliability is seated.
At the moment, because of our government’s incapable leaders, we are headed in the opposite direction of continuous improvement of the lives of everyone within our borders, and it is our job to remove those leaders as soon as possible.
Todd, some excellent points!
That being said,
Law are merely words on a paper. They do nothing for anyone unless they are followed by rulers who are honest brokers. Rulers who believe in those written words. This world we live on today, do not hold words with any sort of reverence, because they want to replace those words with their own.
When you have a megalomaniac who wants to put their words on state currency, or, eliminate state currency for something you can’t even hold, and name it after himself, causing people to make runs on banks and people are losing their money. Do you think someone like that is going to follow someone else’s words? Well it’s obvious, that the words or the spirit of those words are tossed in the trash bin.
You have words that need to change with the times. You can’t use the same words that the originalists used, because the interpretation is manipulated by those who are doing the interpretation today. Just take a look at the second amendment! When you read the entirety of the amendment, there really is no ambiguity in what it says. But there’s enough wiggle room because The manner of speaking has changed over the centuries.
This has been a long slog by those wishing to, as a minority, take over government and change its function. The sad thing about all of this, is the spineless response to those who are supposed to watch and challenge change for the worse. I think everyone will accept change for the better, but for some reason, it’s not happening. And I believe that’s the case because those others, like Schumer, want to remain in power claiming to hold back The winds of devastation! The guy is a schmuck!
Also, look at the stories that have been released about the original Trump Tower, and how it was a den of thieves and iniquity. Criminals ran the show at Trump Tower. So he is well versed in criminality!
Your words mean something, those that are put in place to give direction, to punish, to succeed, have to be followed. The problem is, there’s a lot of words in the framework of the law that are not so kind-hearted or truthful. The eugenics issue is one, there are still slavery laws on the books, there are still the written words denying the Holocaust, the right to vote, the right to be treated equally, and the right to kill those who need killing, amongst many other bizarre words.
There needs to be a cleanup of those words, there needs to be a commission to either sanitize the words or use different ones for the betterment of society. But that won’t happen either, because that’s probably woke! So the spiral continues! And it probably is not going to stop until it smashes into the ground. And, will there be anything left? Probably not anything you would want to live under.
A nation of laws…..Hahaha!
We are so full of shit!
Once again, Ian captures the essence of his being. Heck of mirror you have, bro.
Trump is performing mob boss 101. His goons, aka, MAGAs, are terrifying judges, witnesses and Senators/Congresspeople to ignore the laws. Why did Cannon dance around the most obvious obstruction crime in presidential history? She is corrupt to her core, that’s why.
Why did Marchand avoid sentencing the 34-count convicted criminal? Oh. Somebody or somebodies threatened his daughter. Run for shelter by abdicating your duty to society.
The rule of laws exist. We are a nation of laws, but without courage and enforcement by those who are charged with seeing those laws become necessary actions, we get monstrosities like Trump. This is a really terrible move script.
Pete. Well said! I know that some of the people who contribute here seem to believe that there has never been progress and it is futile to try to achieve it. I question their honesty. If they truly believe that, the only reason they could have for taking the time and making the effort to read and respond to Sheila is to make the rest of us as miserable and defeatist as they are. They are contributing to the success of the very oligarchs and Trump supporters they claim to abhor.
Progress is real. I’ve seen it in my own lifetime. The American Idea as described by Sheila has improved the lives of millions. It is why people from all over the world have, for centuries, dreamed of living here and overcome enormous obstacles to fulfill that dream. I especially agree with your last paragraph. It is the duty of those of us who have benefited from living under this system of government to protect and defend it.
Let me say that the loss of the rule of law’s greatest affect on our country has been the loss of trust. Trust in the government, trust in our courts, trust in our institutions, trust in our neighbors, trust in our friends, trust in our families, and trust in ourselves.
I see a society falling apart and zero leadership that can bring it back.
If I sound bleak today it is because I attended the Andre’ Carson road show yesterday and came away disappointed and sad. Maybe we got the Congressman we deserve…mediocre and not going to amount to much.
Yes, there has been progress, but there are too many, in and out of government, who work, assiduously, to block, or reverse it. Sadly, as faulty as we are as individuals, any, I would venture to say, system we humans create is liable to slipping and sliding backwards when the “wrong” people get to have leverage.
Trump will get his birthday military parade, his two 100-foot high flag poles on the White House lawns, and perhaps, if the proposed bills in Congress pass, his face carved on Mount Rushmore, alongside George Washington, Thomas Jefferson, Abraham Lincoln and Theodore Roosevelt. He will see his birthday become a federal holiday, his face on new $250 bills and Washington’s Dulles International Airport renamed Donald J. Trump International Airport. He will build his National Garden of American Heroes. And of course, he will get the overturning of the 22nd Amendment to allow him to serve a third term. President-for-life!
“Children will be taught to love America,” the Svengali-like Stephen Miller intoned. “Children will be taught to be patriots. Children will be taught civic values for schools that want federal taxpayer funding. So as we close the Department of Education and provide funding to states, we’re going to make sure these funds are not being used to promote communist ideology.”
Trump’s vipers are snuffing out what is left of our open society, putting the finishing touches on the dirty work begun by billionaires and corporations. This is the end of a process. Not the start. Trump had a lot of help.
There is a word for those who did this to us.
Traitors.
–– Chris Hedges
https://open.substack.com/pub/chrishedges/p/trumpland?r=ct32&utm_campaign=post&utm_medium=email
“The third element of the rule of law is accountability. In other words, We the People are entitled to know what our government is doing, and whether it is functioning in a constitutionally appropriate manner.”
I received a newsbreak on my cell phone, “Trump suggested Republicans start ridding Congress of Democrats.” Have I been operating under the misconception that our election process makes these decisions which gives us a heavy responsibility as well as a Constitutional right. Are Trump’s Executive Orders being accepted and enacted as law? I haven’t seen reports from Congressional involvement on his specious whims and mentally unstable delusions as a monarch.
What exactly is being done in the House and the Senate these days, the days they are in session? Trump’s First 100 Days has ended with chaos, paranoia and fear for working and retired Americans who may or may not continue to be citizens and should we be on the lookout for ICE to come for us? “About That Rule Of Law” which no one is above…other than Trump and Musk…leaving the rest of us up for grabs.
“It’s up to We the People to protect it.” HOW? With the normal conditions of “woke” being another “dirty four-letter word” and legally passed “DEI” rights now obsolete under MAGA’s (reported) minority rule in the Republican party, resulting in sitting Republicans ignoring their constituents when out of session. Both parties appear to me to be “out of session” while sitting in session. Republicans have nothing to bring to the table but what Trump hands them in his Executive Orders to carry out.
I come here for this and others views,thanks for making my job easier passing this issue onwards to others. i do not have your educated degrees and your life experiences. I do however relate to blue colars who find it difficult to read and under stand what is going on,and how it affects anyone.my discussions are focused on this item and trumps take over. i sent this to every one on my private mailing list. most here in NoDak dont see privacy as a issue either.
Thanks Sheila. more ammo,more knowlege,it will be passed on.
“Children will be taught to love America,” the Svengali-like Stephen Miller intoned. “Children will be taught to be patriots. Children will be taught civic values for schools that want federal taxpayer funding. So as we close the Department of Education and provide funding to states, we’re going to make sure these funds are not being used to promote communist ideology.”
A reenactment of Hitler’s Youth Party; 21st Century version with electronic connections to hurry things along.
This, what we are experiencing, is sickening. I must spend more time praying. We need Divine intervention.
We are the Nattering Nabobs of Negativity that Spiro Agnew once talked about as he was doing business sub Rosa with his buds in Jersey. I make this statement to show that not much has changed since 1970. If we go further back, we can go to Teapot Dome. Warren Harding only lived to serve two years, thank God. We might have lost all of our precious natural resources to his cronies, if he’d had a full term.
Incompetent Presidents are not a new phenomenon. They often put their trust in the hands of their longtime friends. Not always a smart thing to do. It’s sad to think that we have never achieved the goal. We might never be equal before the law.
The eighth rule of law is the pony that The Duck rides – “justice delayed is justice denied.” He and his crew are masters of flooding, re-flooding and stacking the staircases of appeals.
If a poor immigrant girl steals a loaf of bread because her family is starving and gets caught, she will rot in jail long before El Presidente even gets a jail sentence for hundreds of bigger crimes that have cost lives.
The rule of law is for the rich, to do a mix on F Scotts…”different than for you and I.”
Excellent….comprehensive, clear and compelling. Essential reading. Thank you, Sheila.
Sheila, Thank for your bravery and clarity during these chaotic times. You’re a beacon helping us get our sea legs and feel more indignant than scared, as I imagine Americans felt during the revolution. The disregard of the rule of law and our human rights by the current regime needs to be recognized for the oppressive threat it is to our democracy and our collective forward paths in this life.
Hey Miller,
Instead of parroting everyone else, why don’t you explain your own thoughts on this process. Explain what is wrong, and what is right. See that’s the problem, if you can’t personally identify the problem with the situation today, just pick up on someone else’s coattail, well, that’s pretty cowardly. If you want to get into some intellectual debate, have added, but don’t snipe from the bushes. Because that’s sort of thing actually explains the nature of the beast doing a sniping.
Personally, myself, I don’t have fear of any man, never have and never will. Most in my family don’t have fear of men. If you do the right thing, if you treat your neighbors properly, if you maintain a truthful spirit, if you’re not coveting your neighbor’s wife or husband, if you’re a truth teller instead of a dig thrower, You are doing all right!
That bright light you see, is not the dawn, it’s not a train, probably not even a nuke, it’s just the end.
Myself and folks like me, practice what we preach. We are also students of history, and we also have compassion and empathy. I spend my personal wealth on feeding others. I prepare for the worst and hope for the best. These are just words here, and they produce nothing spectacular. Actions speak louder than words. And I stay busy all the time with those actions.
Don’t pick and choose who to help, help everyone! That makes a difference in the way people perceive you and your positions on things. There’s a certain trust value when you expend your own treasure on others.
To add to my 9:43 a.m. comments; Trump demands that Democrats who tried to impeach him be kicked out of Congress. Can he accomplish this by signing another Executive Order, bypassing all Rules of Law?
I have taken a day off from MSNBC and CNN to watch two favorite John Grisham movies; “A Time To Kill” when the good guy was found innocent and “The Pelican Brief” where the criminal politicians got caught. How many are still on here with us who remember Marv Kramer? John Grisham was an attorney and Republican State Representative in Mississippi; he and Marv faced off in a federal district court and Marv stated he won the case. As payback Marv claimed John Grisham wrote his book “The Chamber” filled with veiled threats against him. The Jewish attorney victim of the KKK in book and movie is named Marvin Kramer but I didn’t find anything that appeared to threaten our Marv Kramer. The vicious KKK killer was portrayed by Gene Hackman, the fine actor we recently lost in a very sad real life situation.
Time for me to get back to the real criminals and bad guys on MSNBC and CNN and hope nothing else too disastrous happened while I was away.
John Sorg. You sound very defensive. Do you resent everyone on this blog who praises and reinforces someone else’s comments? Have you never done that? And you seem to think my comments referred to you. I wonder why that is?😉
Outstanding, Shelia. Thanks!
So where in the rule of law under the constitution does it say we have federal beureacracy that runs the government outside the oversite of Congress.
We are running $2 trillion deficits with corruption that is enslaving iur children with our priorities.
JFK would not have allowed this!