While our democracy has historically been described as a rule of law system under which we are governed “by laws and not of men” (a “nomocracy”), this characterization is flawed and dangerously misleading. In fact, we are a government of laws and of men and women. It is important to recognize this reality, for the failure to do so renders us vulnerable to morphing from a true democracy to an autocracy, with a resulting loss of political freedom and human rights.
Donald Trump’s actions as president provide glaring examples of this danger: recklessly enforcing our immigration laws, resulting in inhumane separation of parents from children and denying recourse to the courts; reneging on international climate change commitments and reversing the course of the Environmental Protection Agency through unwarranted deregulation; pardoning Joe Arpaio, the former sheriff of Maricopa County, Arizona, convicted of criminal misconduct; refusing to vilify white supremacists engaging in criminal misconduct; racially attacking minority judges who reject his unconstitutional practices; targeting transgender personnel in the US military; evading responsibility for numerous conflicts of interest; dismissing FBI Director James Comey for self-serving reasons; refusing to staff key governmental positions (thereby consolidating his power base); refusing to support alliances (both military and economic) with other democracies in the world; and acquiescing to Russian President Vladimir Putin in the face of strong evidence that Russia interfered with the 2016 presidential election—to name a few.
Under traditional rule-of-law principles, all citizens of the United States are entitled to equal and fair treatment under the laws enacted by their legislative representatives and executed by the president. More specifically, rule of law means that citizens cannot—and should not—be governed by the whim of individual government officials. Arbitrary actions undertaken by government officials subject our citizenry to chaotic and unpredictable actions. The governed become victim to uncertain, inconsistent behavior and unfairness as a matter of course. It is no longer the law “by the people, for the people” but the law as interpreted and executed as government officials see fit, much akin to autocracy.
Consequently, it is critical to appreciate that the rule of law also encompasses the manner in which such laws are actually executed by government officials. The most well-intentioned law can be completely undermined where excessive executive power is exerted to further demagogic or partisan objectives, in disregard of true democratic principles. The president’s overreaching use of immigration laws and excessively restrictive executive orders to deny asylum seekers even the bare minimum of due process hearings is just one glaring example of such abuse.
The failure to recognize that the rule of law extends beyond the letter of the law, and applies equally to the manner of its enforcement by people in power, will continue to erode our democratic system. This system already feels the strain of an alienated constituency due to the overarching influence of special interest lobbyists and big money. “Resist” groups at all levels (legal, civic, scientific, and economic) must collaborate effectively to preserve and revitalize a true rule-of-law paradigm that will strengthen our democratic process. As frequently quoted: “All tyranny needs to gain a foothold is for people of good conscience to remain silent.”
It is essential for our citizenry to be involved through focused litigation to stop executive excesses and actions violating separation of church and state; to urge congressional representatives to hold the president accountable for his actions; support political candidates who respect constitutional boundaries and rule of law; endorse judicial appointments of truly qualified, non-partisan candidates with a prior record of competence and respect for judicial integrity and independence; and educate students and citizens about rule-of-law principles which are too often taken for granted. These are the kind of initiatives that really make America great and ensure a government of laws, fairly, impartially, and reasonably enforced. In this way we can hope to preserve the longest-surviving democracy in human history.