A central principle of the American Founding—in fact, one that great thinkers have held as central for any democratic republic—is the rule of law. We often hear the phrase that we are a nation in which “the rule of law and not of men” prevails. This is another way of saying that law—applicable equally to everyone—as opposed to whim and arbitrariness is what rules. Yet, one does not have to look far to see the substantial assault on the rule of law from many quarters in our day.
We can start with those who have the official role of upholding the rule of law: prosecutors, police, and judges. Paul Craig Roberts and Lawrence Stratton’s 2000 book, The Tyranny of Good Intentions, still stands as the seminal work about the widespread reality of misconduct by federal prosecutors and agents. Among the things they discuss are: the manipulation of grand juries by prosecutors to secure indictments; the undermining of the right to trial by plea-bargaining (upwards of 90 percent of criminal cases at all levels involve pleas, and often innocent people plead guilty to lesser offenses because of prosecutorial pressure); and the now pervasive sting operations, where undercover government agents commit crimes and entice their targets to commit them. It’s entrapment by any other name, but the courts have turned a blind-eye to it. Then, there’s always the matter of prosecutions resulting from political considerations, such as trying to satisfy a certain part of the community. The ultimately unsuccessful prosecution of the police officers in the recent Freddy Gray case in Baltimore had marks of that. The rule of law is also undermined when special prosecutors—like in the current Mueller investigation—are appointed when it’s not even clear a crime occurred and then go beyond their charge to investigate other matters in the hope of finding something illegal somewhere.
As far as the police are concerned, we are certainly repulsed by things like the outright assassinations of officers that we have witnessed in this current time of regrettable, reflexive hatred of the police reminiscent of the 1960s. Police misconduct and overreach is not uncommon, however. The recent case of the police arrest of the emergency room nurse in Salt Lake City because she wouldn’t violate the law and hospital policy to do what officers demanded was a particularly blatant example. It was only one of many examples in recent years of police intimidating, arresting, and even physically assaulting emergency personnel carrying out their rightful duties, but who officers claimed were getting in their way. The Salt Lake City officer claimed that the only important law was his law. Even if these are not routine cases, they happen enough to make one think that public authorities—it may be more the case on the local level—are not careful enough in choosing for police departments people who have the right temperament and disposition for the job. They also need to insist on better training for them about legal and constitutional matters. Too often the public shares the responsibility for police abuses by pretending that such things just don’t happen. I saw this clearly with the response of one reader to a past column of mine. He excoriated me as a “socialist” for discussing police misconduct and calling for greater police professionalism.
Perhaps, however, it’s the judiciary that is most responsible among governmental authorities for undermining the rule of law. Roberts and Stratton mention how judges too often ignore prosecutorial abuses and the like, and even endorse pressured plea bargains by accepting the accused’s claim that he’s acting freely when they know full well it isn’t true. Too often, we witness—in everyday practice in the justice system—a kind of collaboration of, say, justices of the peace and local police and officials in encouraging pleas to something, even if the person is innocent, in cases of traffic citations and other summary offenses (one skeptically wonders if it’s a way of generating local revenue). Nowhere is the scenario of the judge as part of a “team” against the individual instead of a neutral adjudicator seen more clearly than in juvenile courts when parents are accused by the child protective system (CPS) of child abuse or neglect (whose legal definitions are open-ended). These courts usually are tepid in exercising their oversight role over the CPS and if cases do actually get before them parents are at a considerable disadvantage. Further damaging to the rule of law is how when the CPS comes after parents—unless there’s actually a criminal case—they don’t even have the full range of constitutionally protected rights.
Perhaps the standard for deviation from the rule of law has been set by its supposedly most preeminent guardian, the U.S. Supreme Court. Such culture-shaping decisions as the 1973 abortion cases and the Obergefell same-sex “marriage” case had no basis in the anchor for American law, the Constitution. To quote dissenting Justice Byron White, the abortion cases were an “exercise of raw judicial power.”
It almost goes without saying that when the laws are not enforced the rule of law suffers. That seems to have happened in the recent Charlottesville calamity, where the police may have been commanded to hold back or at least failed to act quickly enough and so disorder resulted. In a bigger way, the failure and even outright refusal to enforce federal immigration law because of political disagreements with it is an affront to the rule of law. The people urging and applauding that course of action are often the ones shouting the loudest about the need for more law in areas they agree with.
The rule of law is also harmed in contemporary America, paradoxically, by the veritable explosion of law. Not only have questions of mere manners sometimes been turned into legal mandates, but the mass of federal regulatory law now turns the unwitting average citizen—as Harvard law professor Alan Dershowitz has stated—into a potential felon. Traditionally it was said that “ignorance of the law is no excuse,” but that standard is hardly realistic today. Who has read, let alone digested, the almost 170,000 pages of the Code of Federal Regulations? Our Founding Fathers thought the rule of law so important in a democratic republic that they not only stressed it but also the need for a spirit of reverence for law among citizens. How can people have reverence for something that they insufficiently know and cannot even understand, and which seems to suffocate them as it has been allowed to develop?
Officialdom is not the only source of the attack on the rule of law today, however. The attempts by activist groups and counter-protesters to stop those who are exercising their constitutional right to demonstrate—indeed, have even complied with legal requirements to get permits and the like—because of disagreement with their views is an undercutting of the rule of law. So is the attempt to stop speeches in public venues, as we see repeatedly with conservative lecturers on state university campuses. Demonstrations and even rioting are used to shut down people’s legal right to speak. Similarly, the disruptions we observe at town halls and city council meetings assail the rule of law as it seeks to uphold the reasoned and respectful discourse that is crucial to the sustenance of a democratic republic. Then, there were the recent violent protests in St. Louis after a police officer’s acquittal in the killing of a black man after a high-speed chase. These people didn’t like the result after the wheels of justice ran their course. They apparently would accept only an outcome that concurred with their predetermined view, corresponding to their political outlook. There could hardly be a greater assault on the rule of law than that.
There are many challenges to the viability of the American democratic republic in our day. The assault on the cherished principle of the rule of law is one of the most serious.