There is one thread that holds democracy's cloth together. That is the Rule of Law. For the most part, we take the rule of law for granted; we don’t give it a second thought, even though we rely on it constantly. Yet, pull that thread, and the cloth of democracy frays and ultimately unravels.
The rule of law is defined as the principle under which all persons, institutions, and entities are accountable to laws that are: (1) clear and publicly promulgated; (2) equally enforced; (3) independently adjudicated; and (4) are consistent with international human rights principles.
Note that the rule of law is not what those in power say is law. The President is governed by the rule of law and is accountable to it, as is everyone else.
But the rule of law is not just a cookbook of disconnected decrees, laws, and regulations. Rather, it is a system of constitutions, laws, norms, and customs that binds all persons, including elected and appointed officials, business entities, and secular and sectarian institutions. The rule of law reflects our society’s values and normative social agreements.
First, as noted above, the rule of law requires that the system consist of laws and rules that are clear and publicized. Vague and ambiguous laws are typically held to be unenforceable or unconstitutional if challenged in court. The reason is common sense. If those who are to be bound cannot understand what is required of them, they cannot be held accountable for violating a law or rule. By way of a simple example, what if the law said, “motorists may stop at a red light.” Obviously, a motorist, having been given discretion, may determine not to stop at a red light. Imagine the chaos that would cause on our streets and highways.
Or what if the legislature adopted a law that said: “Sales of alcoholic beverages on Sundays before noon are prohibited and are punishable as a felony.” But if the legislature never made the law public, how could a merchant be held accountable for not complying with a law if he or she didn’t know such a law existed? A maxim of jurisprudence says that “ignorance of the law is no excuse,” but that presupposes the law had been adopted by transparent processes and was publicly promulgated in the first place.
Second, the rule of law’s constituent parts must be equally enforced. That means that each part of the system must be implemented and applied to all who incur an obligation to act or to refrain from acting in a certain manner. In other words, the rule of law must bind everybody.
Again, by way of a simple example, if the system prohibits murder—homicide, then the prohibition applies not only to ordinary citizens but also to members of law enforcement and to elected and appointed officials. While police officers may use lethal force in some circumstances, they may not arbitrarily shoot and kill a person who was not breaking any law; nor may a public official order such killings.
Third, the constituent parts of the system must be adjudicated by fair, impartial, ethical, and independent courts, judges, and neutrals. That means breaches of a rule or law, or disputes or conflicts over the meaning or application of a rule or law, must be adjudicated and resolved by courts, in some cases by administrative law judges, or by duly appointed arbitrators.
Importantly, each person or institution with decision-making authority must be independent (i.e., not beholden to or controlled by any aggrieved party), fair (i.e., must treat each aggrieved party equitably and with respect), impartial (i.e., must be unbiased, unprejudiced, and objective), and ethical (i.e., must comply with any controlling professional standards or cannons of ethics).
Research shows that in societies with a functioning, strict rule of law, economies are stronger and more stable, people are better educated and live longer, and societies are more peaceful.
However, as noted, the constituent parts of the rule-of-law and democracy systems can fray and eventually unravel completely. When the rule of law unravels, society faces severe consequences: citizens lose fundamental rights and protections, trust in institutions collapses, and social order gives way to chaos and instability. Without clear, enforced, and equitable laws, people cannot rely on the justice system or each other, resulting in uncertainty, diminished freedoms, and the real threat of authoritarianism.
Finally, I pose this question. Viewing the constituent parts of the system of the rule of law, how does present-day America measure up? While the answer to this question requires extended discussion and analysis, I suggest the rule of law in our country is not on a firm footing.
At the federal level—and in several states—we are now governed by officials who too often treat the Constitution as optional, despite having sworn an oath to uphold it. In pursuit of partisan objectives or in obedience to executive directives, they have increasingly disregarded statutory limits and basic civil liberties. Recent actions by the Trump administration, including extrajudicial detentions, lethal use of force without clear legal justification, and immigration enforcement practices untethered from due process, raise profound constitutional concerns. These episodes implicate core protections: freedom from unreasonable seizures under the Fourth Amendment, the presumption of innocence, and the guarantees of due process and a fair trial embedded in the Fifth and Sixth Amendments.
In violating our country's rule of law, we risk destroying our democracy.
James C. Nelson is a retired attorney and served as an associate justice of the Montana Supreme Court from 1993 through 2012.
