The Rule of Law: Does It Still Hold America Together?
“I firmly believe in the rule of law as the foundation for all of our basic rights,” Sonia Sotomayor said when nominated for the Supreme Court in 2009. The World Justice Project’s (WJP) 2024 survey found that 96 percent of Americans of both political parties agree it is essential for the future of our country, a higher percentage than found in other advanced democracies. “No one is above the law” is the most common phrasing of this principle. It’s anchored in our founding. The Constitution establishes our commitment to be, as John Adams put it, “an Empire of laws and not men.”
Using the WJP survey, however, the rule of law in the United States in practice is not always what it is in principle. We rank 26th in the world on the overall measure of the rule of law, behind Scandinavian countries, the UK, France, Germany and Canada. More concerning, since 2016 the U.S. has dropped by double digits in the percentage scores on several sub-factors, including the extent of checks on executive power, the extent to which officials face repercussions or accountability for misconduct and whether the transition of power is subject to the rule of law. Nor does the American judiciary escape. In a December 2024 Gallup poll, the confidence of Americans in our judicial system dropped to 35 percent from 59 percent in 2006. It’s not surprising then that Supreme Court Chief Justice John Roberts recently warned that “dangerous”” statements “from across the political spectrum have raised the specter of open disregard for federal court rulings.”
Attacks on the federal judiciary are just one concern. The mob attack on the Capitol, the willingness of Congress to cede power to presidents whose actions, including the use of Executive Orders, appear to many to sidestep “consent of the governed” since they emerge without Congressional debate, the politicization of the courts (national and State) and the perception of unethical behavior by some Supreme Court justices also threaten respect for and adherence to the rule of law. So as well do social media attacks and other threats against judges, politicians, election workers and even teachers and librarians, most of which never lead to legal repercussions. Many Americans also sense a dual system of justice – one for the wealthy and powerful, another for everyone else, including open defiance by some defendants of jury verdicts and court orders.
The United States, given its federal system, has the most laws of any country in the world and also the most lawyers per capita. Yet James Madison, referring to proposals for what became the Bill of Rights, observed that laws – which he acknowledged are “parchment barriers” - would not be enough to protect liberty. Something more basic must serve as the foundation for rule of law. In his book on Abraham Lincoln, the rule of law and democracy (Our Ancient Faith), historian Allen C. Guelzo observed that: “[U]nderlying the laws are currents of something more volatile and less easily glimpsed,” what Alexis de Tocqueville in his nineteenth century analysis of American democracy called mores. These are the values, customs, assumptions and what Tocqueille called “habits of the heart” essential to foster a people’s commitment to democracy, including the rule of law.
As Guelzo put it, “[W]ithout some sense that there are truths which not even majorities can defy, democracy becomes rudderless, hollow, morally relative, and difficult to sacrifice for.” The Declaration of Independence’s invocation of “natural law” states as such truths our unalienable rights to “life liberty and the pursuit of happiness.” To this, Lincoln added what he called “our ancient faith” - “consent of the governed.” We can certainly include as well practices such as a belief in the political equality of all people, civil discussion and debate and fair and honest elections.
Yet “mores” and core values are where we have work to do. Without more self-restraint, moderation, humility, honesty, compassion, civility and courage, the rule of law rests only on the threat of legal consequences. As we’re seeing, that’s not enough.
Institutions as well as individual citizens also have a critical role to play. Moral education needs religious institutions to separate from political entanglements to better play their historic role in developing core values. The family, as a child’s first teacher of how to be a citizen, must shape character and demonstrate behavior necessary for children to understand and value the rule of law. Our educational institutions at all levels must improve civics education. If citizens understand more about our founding, history and the part the rule of law plays, the chances improve that they will demand more fidelity to it – and honor it themselves. Other institutions certainly must do better too, especially government officials and social media, some of whom have for too long inflamed public passions and behavior that degrades the rule of law.
Laws alone will not preserve the rule of law. Character must be its ultimate guardian.
Photo Credit: succo - pixabay.com
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