Tag Archives: We The People

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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What We Face

On February 13th, Robert Hubbell’s daily letter included a (partial) list of what Trump/Musk had done in the first days of the administration. 

Pardoned 1,500 insurrectionists who assisted Trump in his first attempted coup.

Converted the DOJ into his political hit squad by opening investigations into members of the DOJ, FBI, Congress, and state prosecutors’ offices who attempted to hold Trump to account for his crimes.

Fired a dozen inspectors general, whose job it is to identify fraud and corruption and to serve as a check on abuses of power by the president.

Fired dozens of prosecutors and FBI agents who worked on criminal cases relating to Trump

Fired dozens of prosecutors who worked on criminal cases against January 6 insurrectionists

Opened investigations into thousands of FBI agents who worked on cases against January 6 insurrectionists

Disbanded the FBI the group of agents designed to prevent foreign election interference in the US

Disbanded the DOJ group of prosecutors targeting Russian oligarchs’ criminal activity affecting the US

Fired the chairs and members of the National Labor Relations Board, the Equal Opportunity Employment Commission, and the Federal Election Commission and refused to replace them, effectively shutting down those independent boards in violation of statute

Shut down and defunded the Consumer Financial Protection Bureau

Shut down and defunded USAID by placing virtually the entire staff of the agency on leave

Impounded billions of dollars of grants appropriated by Congress to USAID, National Institutes of Health, Department of Education, and the EPA, all in violation of Article I of the Constitution, which grants Congress the power to make appropriations

Allowed a group of hackers to seize control of large swaths of the federal government’s computer network by attaching unauthorized servers, changing and creating new computer code outside of federal security protocols, creating “backdoors” in secure systems, installing unsanctioned “AI” software to scrape federal data (including personal identification information), and installing “spyware” to monitor email of federal employees

Disobeyed multiple court orders to release frozen federal funds (an ongoing violation; see the NYTimes on Wednesday)
Granted a corrupt pardon to the Mayor of New York in exchange for his promise to cooperate in Trump’s immigration crackdown

The occasional trolls who visit this site to register their approval of these illegal and unconstitutional measures discount their illegality, confirming disdain for what is a significant protection of individual liberty–the insistence that the ends cannot justify the means. The entire Bill of Rights is founded on that premise, which is central to the rule of law.

It requires a total lack of civic literacy and historic understanding to look at that list and approve of those actions–to fail to see that they are fundamentally contrary to sound policy, to the rule of law, and to America’s global interests and stature.

Members of Congress should be the first line of defense against this coup. Most of these arbitrary actions can only be properly and constitutionally taken by Congress, and the actions comprising the Trump/Musk coup send an unmistakable message that our co-Presidents find Congress irrelevant and expendable. One might expect even MAGA Senators and Representatives to object to their political castration, but–as James Baldwin once noted–in order for evil to flourish, “it is not necessary that people be wicked but only that they be spineless.”

Unfortunately, MAGA Senators and Representatives only come in two flavors: Christian Nationalist (in Indiana, think Jim Banks) and spineless (in Indiana, think Todd Young). The Christian Nationalists are profoundly, if ignorantly, anti-American; the spineless are interested only in retaining their positions–positions that their meek obedience has divested of any significance other than the right to retain a title and receive a paycheck.

America’s government has three branches (someone needs to explain them to Tommy Tuberville), so in the absence of a live and breathing Congress, it is falling to the courts to restrain our would-be co-Kings. However, it looks all too likely that our would-be monarchs will ignore the courts–echoing Jackson’s infamous statement that “the courts have issued their decision, now let them enforce it.” 

If that happens, it will be left up to We the People to counter this coup, and we can’t wait until the midterm elections, by which time our overlords may have put even more vote suppression laws on the books. We must participate in protests, in general strikes, in civic resistance of all kinds. Jessica Craven has posted about several:—a nationwide protest on February 17, a one-day general strike on February 28, and a “total shutdown” on March 15.

Studies have determined that participation in non-violent protest by only 3.5% of a population forces political change. We the People can do this. 

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What Is Civic Literacy?

Those of us who have spent years warning about the consequences of Americans’ low levels of civic literacy can take some comfort in the fact that Trump’s election not only proved our point, but seems to have generated an awakening among people who were previously unimpressed with the importance of the issue.

Here in Indiana, former Governor Mitch Daniels, who is now the President of Purdue University, has called for a campus-wide, mandatory civics test.

The faculty has been debating the proper approach to testing students’ civic literacy; in the meantime, they have

promised to let the president ask for a straight up-or-down vote on his baseline assumption that students should at least be able to pass the same test given to newly naturalized citizens.

Ah yes–the naturalization test.

As concerns about levels of civic ignorance have grown, a number of states have passed laws mandating the use of the naturalization test in order to graduate from high school. It’s so typical of American lawmakers, who tend to favor what I call “bumper-sticker” solutions. Civics instruction inadequate? Well, here’s a test. Give that. Problem solved.

Unfortunately, the questions on the naturalization test tend to be “civic trivia.” How many stripes on the flag? Name one branch of government? What are the first three words of the Constitution? How many U.S. Senators are there?

Now, knowing the answers to the questions on the civics test is fine. But it certainly doesn’t mean that the responder understands the way American government works. Knowing the length of a Senator’s term (another question on the test) tells you nothing about the operation of the federal government, or federalism’s division of jurisdiction–the relationships among local, state and federal levels of government.

It’s certainly nice if the test-taker can name ONE right protected by the First Amendment (another question), but that ability doesn’t translate into understanding the interaction of the religion clauses, or the purpose of free speech or a free press. Knowing that the first ten amendments are called the Bill of Rights doesn’t translate into understanding the “negative liberty” premise of the Bill of Rights– the reason that the provisions of the Bill of Rights only restrict government. (I wish I had a dollar for every student who has come into my classroom utterly unaware of that essential fact.)

What’s the difference between civil rights and civil liberties?

What is probable cause and why does it matter?

What do we mean by due process of law? The equal protection of the law?

If we really care about an informed electorate, a citizenry capable of debating the application of the actual constitution rather than a fanciful Fox-ified document, a citizenry with at least a superficial understanding of America’s history,  that isn’t going to be accomplished by a requirement that students correctly answer six questions from the citizenship test.

If I had a magic wand, I’d make every high school in the country require We the People–a curriculum that actually produces civically-literate citizens.

But that’s a solution that wouldn’t fit on a bumper-sticker.

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The Evidence Keeps Accumulating…

Periodically, I use this blog to indulge a rant about Americans’ lack of civic literacy. (Regular readers are probably getting tired of my preoccupation with civic education–or more accurately, the lack thereof.) Be warned– I’m going to beat that dead horse again today.

A column written by Colbert King from the Washington Post has highlighted still another research project confirming Americans’ low levels of civic knowledge. 

King introduced the topic by noting what we might call “constitutional challenges” in Donald Trump’s Presidential campaign.

He proposed a religious test on immigration, promised to “open up” U.S. libel laws and revoked press credentials of critical reporters. He called for killing family members of terrorists, said he would do “a hell of a lot worse than waterboarding” terrorism suspects and suggested that a U.S.-born federal judge of Mexican heritage couldn’t be neutral because of his ethnicity. He whipped up animosity against Muslims and immigrants from Mexico, branding the latter as “rapists.”

When protesters interrupted his rallies, he cheered violence against them. He told a political opponent that if he won, he would “get a special prosecutor to look into your situation,” adding “you’d be in jail.” He threatened not to respect election results if he didn’t win and, in Idi Amin fashion, made the claims of a strongman: “I alone can fix it.” He publicly expressed admiration for authoritarian Russian President Vladimir Putin.

Cherished notions of religious freedom, a free press, an independent judiciary and the rights of minorities took a beating from him. The prospect of mob violence in his defense and imprisoning of political opponents found favor.

An electorate with even a basic understanding of the U.S. Constitution would have found these assaults on foundational American principles reprehensible. And in fairness, civically- educated Americans did recoil.

The problem is, we don’t have enough civically-educated Americans.

How did a pluralistic nation that propounds democratic values and practices come to this?

“This” not being the authoritarian in the White House who dismisses basic constitutional principles as if they were annoying gnats, but “this” — an electorate that looks past the disrespect shown toward democratic ideals.

That haunting question has occupied the minds of Richard D. Kahlenberg and Clifford Janey, two education scholars and writers who began to take a hard look at this fundamental domestic challenge long before November’s results came in.

Kahlenberg and Janey addressed the scope of the problem in a joint Century Foundation report released in November, “Putting Democracy Back into Public Education.” The report was also discussed in an article in the Atlantic, “Is Trump’s Victory the Jump-Start Civics Education Needed?”

Janey and Kahlenberg argue that our “schools are failing at what the nation’s founders saw as education’s most basic purpose: preparing young people to be reflective citizens who would value liberty and democracy and resist the appeals of demagogues.”

They said today’s schools turn themselves inside out trying to prepare “college-and-career ready” students who can contend with economic globalization and economic competition and find a niche with private skills in the marketplace.

As for preparing them for American democracy? Raising civics literacy levels? Cultivating knowledge of democratic practices and beliefs with rigorous courses in history, literature and how democratic means have been used to improve the country? Not so much or maybe not at all, they suggest.

This has to change. And in Indiana, at least, a number of us are committed to changing it.

Women4Change Indiana is currently launching an effort to increase civic education; I am heading up a subcommittee that will encourage the formation of book clubs around the state focused upon the history and philosophy of America’s constitution. We will also be enlisting volunteers who will advocate in their local school systems for inclusion of the “We the People” curriculum, which is now entirely voluntary. Research has demonstrated that We the People has a salutary, lasting influence on students who have gone through it.

Citizens will not–cannot–protect what they don’t understand.

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What To Do, What To Do…

I’ve told this story before, but it bears repeating.

I teach my law and public policy classes through a constitutional “lens,” because I am convinced that students must understand America’s fundamental legal framework and philosophy if they are to approach policy proposals with the necessary analytic tools.

I often introduce the Free Speech provisions of the First Amendment with a purposely silly question: “What did James Madison think about porn on the Internet?” Usually, the student I’ve asked will laugh and respond that Madison never encountered the Internet; that then allows us to discuss the expressive values Madison and other Founders were trying to protect, and the ways in which modern courts attempt to protect those values in a world that the Founders could never have envisioned.

But several years ago, when I asked a student that question, she looked at me blankly and said “Who’s James Madison?”

That experience–unfortunately, not an outlier–led to the establishment of the Center for Civic Literacy at IUPUI, (CCL) and research to determine how much Americans really know–or don’t– about the country’s history, economy and legal system, and the political and social consequences of low levels of civic knowledge.

If anyone doubts the corrosive effect of civic ignorance, I suggest watching this year’s political campaigns.

There is clearly little we can do that would immediately improve the abysmal state of public discourse as it is practiced today, but in addition to research into the causes and consequences of civic ignorance, CCL has been working with the League of Women Voters and the Indiana Bar Foundation, among others, to produce materials that we hope will help address the issue going forward.

The Center and the Bar Foundation have published a book called “Giving Civics a Sporting Chance.” The book points to the pervasive social and cultural supports that reward knowledge of sporting events and trivia, and makes the argument that we need to institute similar mechanisms that would reward and increase civic knowledge.

Young Americans who can tell you who threw out the winning pitch in the 1939 World Series are capable of answering equally obscure questions about the Articles of Confederation, but American culture privileges sports knowledge over civic literacy. The book suggests a number of mechanisms for bringing civics “into the sunlight”–from relatively “do-able” measures like increasing participation in the excellent “We the People” curriculum and competition, to “wouldn’t it be wonderful” suggestions for a new GI Bill that would reduce student debt while increasing civic information and engagement.

Information about the book’s availability will be posted to the Center’s website shortly.

Another publication–originally an ebook, but just this month available in paperback--is a mere 36 pages of essential civic information. Titled Talking Politics? What You Need to Know Before Opening Your Mouth, it includes “What everyone should know about the Constitution and American legal system,” “What everyone should know about the American economic system,” “What everyone should know about science,” and “What everyone should know about politics.”

Obviously, all of those subjects cannot be comprehensively covered in 36 pages, but the book provides basic facts and settled definitions that can allow people to argue for their policy preferences more productively and convincingly.

I encourage readers of this blog to examine these two products, and if you find them useful–and I think you will–disseminate them broadly. Discuss the recommendations in “Giving Civics a Sporting Chance”with school curriculum officials. Read Talking Politics in your book club. Whatever.

I think thoughtful Americans of every party and political philosophy will agree that–whatever else America’s current election campaign may signify–the nomination of Donald Trump by a major party could only occur in a country where significant numbers of citizens have no understanding of the way their nation’s government works, or the rules that constrain elected officials.

That nomination should be a wake-up call.

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