Tag Archives: Democracy

About That Rule Of Law…

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.

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We The People

Wednesday night I attended an “Empty Chair” Town Hall, and I was absolutely blown away–in a very good way–by the event.

I was one of three people who “kicked off” participant testimonies with brief descriptions of what we are currently facing. My assignment was to explain why DOGE and the majority of Trump’s Executive Orders are unconstitutional; the other two addressed assaults on Medicaid and Women’s rights.

Here’s what I said:

Under the Constitution, Congress has exclusive power to raise revenue and “pay the Debts and provide for the common Defense and general Welfare of the United States.”  The Appropriations Clause states that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” DOGE has never been authorized as a government unit of any kind, and it is exercising financial decision-making that the Constitution vests exclusively in Congress.

Accordingly, every decision DOGE has made and is making is illegal and unconstitutional until and unless ratified—or more properly, authorized in advance– by Congress.

Most of Trump’s increasingly incoherent, petty and autocratic Executive Orders are similarly unconstitutional. Most of them violate the Separation of Powers—a structural element fundamental to America’s constitutional system. The most blatant example was his effort to use an Executive Order to overturn birthright citizenship, which was established by the 14th Amendment. A president cannot amend the Constitution via Executive Order.

An Executive Order is defined as a written directive signed by the president, that orders agencies of the federal government to take specific actions in pursuance of the Executive’s duty to ensure that the laws of the nation “be faithfully executed.” To the extent that such orders apply to matters not properly within the Executive’s authority, they are legally unenforceable.

Trump’s disdain for the Constitutional limits on his authority have plunged the nation into a full-blown Constitutional crisis.

Following those first, very brief presentations, some sixty people (out of the nearly 600 in attendance) lined up to address that empty chair. They were a cross-section of ordinary Americans (not a “coastal elitist” to be seen)– working class folks, a mixture of young and old people, retired folks– and they were amazing.

Don’t take my word for it: here is a link to the recorded livestream.

The citizens who turned out on a week-night (and presumably those watching via the livestream) wanted Todd Young to know that they are angry at his lack of a backbone, and his failure to live up to the oath of office that he took both as a Marine and as a Senator. They wanted him to understand how this rogue administration’s attacks on government are harming Hoosiers–the shutdowns of mental health services, the refusals to pay funds legally due to local nonprofits, the disregard of Free Speech and due process guarantees, and especially the persistent, vicious assaults on America’s diversity.

The people addressing that empty chair were passionate, but more significantly, their charges of malfeasance were accurate. They’d done their homework. The people who attended that Town Hall were the epitome of the “informed electorate” that sustains democratic regimes. When I left, I felt more positive than I have since the election.

The Town Hall’s organization by the Central Indiana Indivisible Chapter was flawless–there were volunteers directing traffic (which significantly overflowed the church’s large parking lot); and others inside directing attendees, managing microphones and herding the people waiting to testify. The crowd was more than just energized–attendees applauded speakers, booed references to Trump and Musk, and clearly demonstrated their intent to protect the America they value–an America where every person is (at least theoretically) valued.

The minister who welcomed the crowd emphasized that message, insisting that “Everyone is welcome here,–we don’t care what color you are, we don’t care who you pray to or whether you pray, we don’t care who you love. You are valued and welcome here.” Several of those who spoke made a similar point: America is a land of immigrants, a “melting pot” (or “tossed salad”) of diverse folks–and that is our strength. That is what makes America great. That is the beauty of We the People, and we will fight to retain it.

If Senator Young is too weak and intimidated to join the fight for America, the people in that Town Hall will find someone who isn’t weak and intimidated to replace him.

If you weren’t there, I really, really hope you will watch the recording. We the People are beautiful.

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A Functional Media?

Research strongly suggests that Americans are split between an informed electorate and those delicately referred to as “low information voters” (also known as “MAGA”). As I’ve pointed out repeatedly on this blog, our current information environment reinforces misinformation and disinformation, catering to those who simply want their prejudices confirmed. The Internet has proved to be a warm and fuzzy place for those whose “research” is confined to searches for confirmation of their pre-existing biases.

That reality allows Trump to engage in fact-free bloviating–also known as lies–secure in the knowledge that a multitude of propaganda sites will obediently echo them, no matter how ridiculous or easily and repeatedly debunked.

A recent essay from the Bulwark posits that today’s media falls into roughly three categories:

There’s the state media—Fox, Newsmax, the Federalist, HughHewitt.com—which have become pure propaganda outlets.

There’s the “neutral” media—the New York Times, the Washington Post, ABC News, CBS News, CNN—which believe that politics should be covered as a sport with reports about who’s up and who’s down. Extraordinary efforts are made by these institutions to present both sides of every question, even if it means presenting the case for illiberalism or platforming people who the media orgs know are lying to their audience.

Finally, there’s pro-democracy media—outlets which understand that America is experiencing an ongoing authoritarian attempt and that they must stand on the side of small-l liberalism.

The author believes that maintaining these categories is unsustainable-that the three spheres will soon “collapse into just two: Media organizations that oppose authoritarianism and media organizations that accept it.” He quoted an editorial from a technical publication–Techdirt— which recently made a surprising announcement:

Over the last few weeks, I’ve had a few people reach out about our coverage these days . . . [and about] how much we were leaning into covering “politics.”

When the very institutions that made American innovation possible are being systematically dismantled, it’s not a “political” story anymore. It’s a story about whether the environment that enabled all the other stories we cover will continue to exist. . . .

We’re going to keep covering this story because, frankly, it’s the only story that matters right now, and one that not everyone manages to see clearly. The political press may not understand what’s happening (or may be too afraid to say it out loud), but those of us who’ve spent decades studying how technology and power interact? We see it and we can’t look away.

So, here’s the bottom line: when WaPo’s opinion pages are being gutted and tech CEOs are seeking pre-approval from authoritarians, the line between “tech coverage” and “saving democracy” has basically disappeared. It’s all the same thing.

Digital illiterate that I am, I had never heard of Techdirt. But the quoted language confirms something that most political scientists know instinctively: at base, everything is politics. The people who refuse to follow the news of what government is doing, who claim that they “aren’t political,” are kidding themselves.

When the federal government stops funding cancer research, when Social Security checks fail to appear in a timely manner, when government operatives are erasing efforts to counter discrimination (or, as they currently are, reinstating discriminatory messages and behaviors)–when federal officials are telling states to handle their own fires and floods, and threatening your employees with deportation, when insane policies are threatening to tank the economy and erode your retirement–it is no longer possible to tell yourself that “politics” is irrelevant to your life.

The article suggests that tech outlets are among the first to speak out because “they have specialized knowledge—and because they don’t have relationships with people in politics to tend to.”  They are able to see clearly what is happening and willing to speak out against it.

We have seen the exact same thing with some specialized legal publications. Lawfare and JustSecurity.org were once destination sites for law nerds. Today they have become two of the most essential media organizations in America.

Why? Because since these people specialize in the law they know exactly how serious Trump’s attack on the rule of law is—and how dangerous it is.

Like Techdirt and Wired, serious people in the legal space are being radicalized—democracy pilled?—because they understand that this isn’t a game and that the liberal press does not have an obligation to present illiberalism as a point of view worthy of consideration.

The people in pro-democracy media understand that liberalism has a moral obligation to take its own side.

“Fair and Balanced” was never accurate, because “balance” by its very nature/definition cannot be accurate. And stenography–he said/she said–isn’t journalism.

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Preparing To Resist

Important notice: Due to the cold, the rally on January 20th has been moved to Broadway United Methodist Church, 609 E 29th St, Indianapolis. Indoors.

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I have previously posted about the rally being held just two days from now, on January 20th–Inauguration Day–in  Indianapolis.

Reasonable readers might wonder what such a gathering is intended to do. After all, the threats posed by the incoming  administration will manifest in concrete, harmful actions. Should we not be saving our energies to oppose and try to derail those actions, and to help neighbors likely to bear the brunt of the coming assaults?

That question is reasonable, but it misses an important point. Those of us who are dreading what is likely to come, who fear for the country we thought we lived in, need to find and support each other. We also need to mutually reinforce our commitment to that country’s democratic and constitutional traditions, and to its first motto: e pluribus unum.

Think of the rally–and the other demonstrations being planned–as a coming together, a communal “kickoff” to the coming resistance.

As Hoosiers4Democracy recently put it, on the 20th, we will not only be commemorating the birthday of Dr. Martin Luther King Jr., we will be affirming that we

stand in resistance to the inauguration of a President who promises to unravel the constitution and ignores the rule of law. The rally is an act of love for our constitution and the foundational American values of liberty, equality and justice for all. We know these values are not applied equally, that many in our country are denied basic human and civil rights that others are afforded. We know that these values are under further assault by our incoming state and federal administrations. We stand in resistance to that assault.

In a paragraph explaining why the rally matters, H4D explained:

It is thought that Carrie Chapman Catt, a suffragist and founder of the League of Women Voters, said that ‘democracy is not a spectator sport’. Now is not the time to be a spectator to the spectacle that is happening in our state and our country. Despite our disillusionment, disappointment, despair and heartbreak, we must not allow ourselves to sit on the sidelines of politics. We need to stand up for our Constitution and our commitment to E Pluribus Unum—out of many, one. So join us as we:

Reclaim the vision of Dr. Martin Luther King Jr.
Rebuild a stronger more inclusive society and the democratic institutions that are being threatened
Resist the policies and actions that undermine our freedoms and civil rights.

The missive ended by asking readers to commit “to being an engaged and informed citizen, especially in this perilous moment.”

Put on your coats, boots, mittens, warm hats and join us in song, inspired readings, and a diverse lineup of speakers as we ‘let our hearts speak’ for what we love most about this country. Reclaim, Rebuild, and Resist Rally, January 20, 2025, 10:00am-Noon, University Park, 325 N. Meridian St., Indianapolis.

The rally has several organizational co-sponsors: ACLU Indiana, ReCenter Indiana, Common Cause Indiana, Women4Change Indiana, the Indiana chapter of the American Association of University Women, and the League of Women Voters of Indiana. It will feature musical interludes and brief talks by clergy and civic leaders (and one local blogger, namely me).

I hope that those of you who live in central Indiana can join us as we reinforce our solidarity and prepare for what comes next.

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Reclaiming America

In the wake of the November election, I can’t count the number of friends and family members who have declared a moratorium on political news–who have taken a “time out” in order to protect their equilibrium/sanity and avoid descending into depression.

I will admit that I have dialed back my usual immersion in the news, for the same reason. It really has been an act of self-preservation to take a vacation from the evidence that so many  Americans have dismissed the ideals of our founding, and are willing to close their eyes to threats posed to the principles that truly did make America great.

But a vacation is not a departure, and it’s time to determine how each of us can contribute to a massive uprising of people who may have different political affiliations and/or policy goals, but who agree on the importance of protecting civil liberties and participatory democracy in the face of the grifters, autocrats and racists–elected and otherwise– who are preparing to assume control of the government.

If those of you reading this are like me, your inbox has been filling up with notices from political and nonprofit organizations, both local and national, outlining their preparations for sustained activism in the face of those threats. One example–Democracy 2025–lists 280+ member organizations, and over 800 Lawyers, advocates, and experts already engaged in the work.

Despite claims, no President or their allies can just snap their fingers to implement an anti-democratic vision. Our laws and Constitution provide real protections and tools through the courts and in our communities to stop abuses of power and harms to people. Still, these threats are real, so we’re prepared to confront them.

Learn more about the threats we’ve identified, and check back often as we release additional analysis, tracking, and tools to respond.

I’ve received dozens of other, similar announcements, although none with as extensive a list of participants.

Local organizations–including numerous bipartisan and nonpartisan ones– are also gearing up to defend fundamental constitutional values, recognizing that what we are facing is not a partisan political confrontation, but a civic, social and indisputably moral conflict. We can go back to arguing about politics and policy when we have restored the rule of law and respect for time-honored democratic norms.

As Mark Twain once wrote: Patriotism is supporting your country all the time, and your government when it deserves it.

A group of local organizations that define patriotism as Twain did is planning a rally at University Park, in downtown Indianapolis, on January 20th–the same day as the Inauguration and also, coincidentally, Martin Luther King, Jr. day. The rally is intended to reaffirm attendees’ commitment to King’s vision and opposition to the restoration of White Nationalism and patriarchy. There will be uplifting music, readings that remind us of America’s historical aspirations, and messages from clergy of different faith traditions. (Yours truly will also participate in the program.)

We will pledge allegiance to the America we love and believe in–a generous and welcoming country devoted to liberty, inclusion and equal civic participation.

The rally– titled Reclaim, Rebuild and Resist– will begin at 10:00 a.m and end at noon. It is intended to demonstrate a firm and unyielding commitment to the principles of liberty and equality enshrined in the U.S. Constitution and Bill of Rights, and espoused by Dr. King—to reaffirm our support for the original American motto: e pluribus unum (out of the many, one), and our concerns for the threats posed by members of the incoming state and federal administrations to the values of inclusion, equality and the rule of law.

We will pledge to reclaim the visions of Dr. King and other social justice warriors, to help in efforts to rebuild and reinforce America’s democratic institutions, and resist attacks on foundational American values from any and all sources.

If you live in central Indiana, I hope you will attend. And bring your friends and families.

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