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The Rule of Law and Why it is at Stake in our Elections

From the Advocacy Committee

September 5, 2023

“Rule of Law” is a term that is often used but hard to define. The term encompasses the idea that a free society is governed by a “government of law, not of men.” Yet our laws are made, enforced, and interpreted by people, so what does it really mean to have a government of law?

In the United States, rule of law principles are enshrined in our Constitution. By dividing power among our three branches of government (executive, legislative, and judicial), the framers of the Constitution strove to ensure that no one person would be able to gain absolute power and stand above the law. Each branch of government has some level of control or oversight over the others, cementing the idea of government by laws.

The American Bar Association, as part of its World Justice Project, set forth four principles of the rule of law. Although our constitutional separation of powers enables a rule of law, other systems, such as the parliamentary systems found in the United Kingdom and Canada, enable a rule of law as well. To implement the rule of law, a system of law and government must incorporate:

1. A system of self-government in which all persons, including the government, are accountable under the law;

2. A system based on fair, publicized, broadly understood and stable laws;

3. A fair, robust, and accessible legal process in which rights and responsibilities based in law are evenly enforced;

4. Diverse, competent, and independent lawyers and judges.

If the rule of law was enshrined in our governmental structures more than two centuries ago, why is it at stake today? The events of January 6, 2021, flew in the face of the framers’ intentions. The framers considered the peaceful transfer of power essential to their new form of government. They placed limits on presidential power by establishing four-year terms that could be renewed only by the voters through the Electoral College. In 1947, Congress approved the 22nd Amendment to the Constitution, which limits each president to two four-year terms. George Washington stepped down voluntarily after two terms, and John Adams was the first president to peacefully step down after losing an election, a precedent followed by every president until Donald Trump. No less a conservative than Ronald Reagan once observed that “what we accept as normal is nothing less than a miracle.”

No discussion of the rule of law is complete without a mention of the due process of law. After his indictment on criminal charges related to his efforts to stay in power after the 2020 election, Donald Trump announced in various media channels that the fact that the indictment was two and a half years after the events of January 6 was proof that the indictment was part of a witch hunt timed to coincide with the 2024 campaign. The delay is proof that the rule of law is alive and well.

The 14th Amendment to the Constitution provides that no person shall be deprived of life, liberty, or property without due process of law. Due process includes the idea that judicial processes must be fair, and that no person should be denied life, liberty, or property in an arbitrary manner. The requirement of fairness provides friction in the legal process; a lot of investigation must be done, and procedures must be followed in a complicated case before going to court. Hence the perceived delays in bringing charges against the former president.

The rule of law is essential to our democracy and candidates at all levels who do not honor its principles have no place in our government.

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