Constitution Day series | Why the Rule of Law Matters—The View of a U.S. Diplomat (ret.)

Guest Post by Alain G. Norman, MSc, JD

September 17^th is Constitution Day, a day to remember and celebrate the remarkable American Constitution and Bill of Rights, which have, for some 250 years, served as a touchstone for those “yearning to breathe free,” as the poet put it, both in the United States and around the globe.

Yet, not only have the principles enshrined in the U.S. Constitution—such as limits on governmental powers, freedom of religion, and freedom of speech—been challenged by authoritarian rulers outside the U.S. during the last 250 years, but the current political climate within the U.S. leads some to question whether constitutional norms and the Rule of Law can be preserved in our homeland.

Given the urgency with which many Americans are currently arguing about various matters relevant the effectiveness of the Rule of Law—e.g., the scope of presidential powers—I will focus on why Americans should care about our venerable Constitution and the Rule of Law.

Here is the bottom-line up front, or “BLUF” as they’d said at the Pentagon:

If you want to prevent men with political, military, police, and/or economic power from abusing their power, only a system of strong and functional checks and balances—a.k.a., the “Rule of Law”—will keep you and your community safe and able to prosper economically, culturally, spiritually, and intellectually.

Let me proceed in three parts: First, I will summarize what the downsides are, for most people, when the Rule of Law is non-existent or weak. Second, I will review the key features of the “Rule of Law” that can enable people to enjoy liberty, prosperity, and true safety. Third, I will sketch a few ideas as to what Americans can do to “preserve, protect and defend the Constitution of the United States” as the presidential oath of office puts it.

I. Why Care About the Rule of Law?

Human history provides many examples of the misery and violence that bullies have caused to their people, and/or neighboring nations. The downsides of inadequate Rule of Law are also evident today, given many nations’ authoritarian rulers or poor governance, generally.

Specifically, when political and economic elites disdain accountability and the Rule of Law, people suffer in three major ways:

(1) Rampant corruption that keeps many people poor and, often, living in squalid conditions. I’ve seen the results of extreme corruption in, for instance, Haiti and the Central African Republic.

(2) Repression of political, religious, or even artistic expression by those whom the “men of power” deem a threat or designate as scapegoats. I once visited the Soviet Union, and saw for myself what decades of dictatorial, single-party, rule produced and, unfortunately, that model still operates in Communist China and North Korea.

(3) Underdevelopment of educational, healthcare, and/or public infrastructure systems, that impede the ability of people to reach their full intellectual, health, and/or economic potential. Several Latin American countries, in which I have worked, show that such problems can occur even in nations with authoritarian, not just totalitarian, political systems.

II. OK, So What Are We Talking About?

So, what constitutes good governance and the Rule of Law?

Details vary among countries (as I know both from studying Comparative Government and law, as well as from my work experiences), but there are at least four mutually reinforcing dimensions to the Rule of Law, namely:

(A) Separation of governmental powers;
(B) Space for open and non-violent political and intellectual contestation;
(C) Laws and regulations that protect and/or promote both good governance & individuals’ rights; and
(D) Societal expectations and constitutional norms that support accountability.

Let me elaborate on each of these features in turn:

(A) Separation of governmental powers: Governmental powers and duties should be distributed both within the national government and between the central government and local governmental bodies. So, a national government’s powers will be spread across at least three, largely co-equal, branches of government—namely, the legislative, executive, and judicial branches. At the same time, states, provinces, and/or major cities ought to have the ability to function rather autonomously, and/or to have leaders elected at the relevant local level, not appointed from above by the central government.

This last point—local elections—leads to the next key feature:

(B) Space for open and non-violent political and intellectual contestation: Not only should elections, as is often mentioned, be “free and fair” but there should exist a robust “civil society.” This means there must be space for people to associate freely in the form of political parties and in civic organizations that, for example: Freely report on current events and problems; work on socio-economic issues without governmental control; and that can freely monitor elections to ensure these are orderly and fair. America currently retains many elements of a strong civil society, such as multiple political parties, diverse news media, independent professional associations, independent labor unions, universities with tenured professors, and philanthropic foundations, as well as election-monitoring groups of citizens. But—as item “D” (below) indicates—people in civil society and in government entities need to be imbued with the desire to ensure good governance, to follow due process, and to respect human rights in order to achieve individual liberty and public well-being which are the aims of the Rule of Law.

(C) Laws and regulations that protect and/or promote both good governance and individuals’ rights: The Rule of Law includes having legislation and administrative procedures that permit or strengthen such fundamental rights as freedom of speech, the right to a fair and speedy trial, the right peaceably to assemble, the right to petition government for the redress of grievances, and—overall—the right of individuals to pursue happiness. In addition to constitutional provisions and laws respecting individuals’ rights, there ought to be clear rules and fair processes to ensure that government is as effective, as responsive, and as “clean” as possible in all of its branches and at all of its levels. In the U.S., for instance, we have public Congressional hearings, and the Administrative Procedures Act to help ensure that Executive Branch agencies do not act arbitrarily but do use taxpayers’ money properly. In some countries, oversight of governmental operations might include an “Ombudsman’s” office.

And last, but not least:

(D) Social expectations and constitutional norms that support accountability: Although most countries of the world now have a single written document that serves as a constitution, what gives any constitutional text its power is the willingness of people to insist that their rights be respected by those with political, economic, police, and/or military power. The will and the ability of citizens to defend their rights and/or to hold corrupt or incompetent leaders accountable depend on two key things:

• The society’s norms (a.k.a., citizens’ expectations) as regards what is or is not proper behavior by governmental and economic leaders and entities, as well as by individuals; and
• The vitality of civil society organizations.

These last two important, if hard-to-measure, elements of a functional Rule of Law system, are in addition to the extent to which the inevitable disagreements between separate branches of governmental power might enable some accountability. That is, although the judicial branch—especially in America’s Constitutional history—can play a key role in checking Executive or even Congressional power, the expectations, attitudes, and actions of every individual help to determine the extent to which one branch of government, one political party or person (whether civilian or military), or even big corporations can accumulate dangerous amounts of power.  

Around the time the U.S. Constitution was written, this dimension to a functional, yet rights-respecting, form of government might have been termed “republican virtue” and its importance was captured in the story about Benjamin Franklin being asked by a woman, as he left the Constitutional Convention, what sort of government the U.S. would have, and his responding, “A republic, madam, if you can keep it.”

To bring the issue a bit more up-to-date, and to illustrate what is otherwise more of a qualitative, rather than quantitative element of the Rule of Law, let me offer two “war stories” (or, at least, personal anecdotes) which—perhaps because they don’t involve less developed nations—may be all the more relevant to question of whether, and even how, Americans should “preserve, protect, and defend” their Constitution.

First, when I was a Consular officer serving at the U.S. Embassy in a foreign country, I was tasked with visiting Americans who had been arrested to ensure that they were being treated decently. In that country, pre-trial detention without bail was the normal practice, yet almost all the Americans—whether admitting guilt or not—were outraged at the prospect of being held in jail before and during trial, rightly feeling that being out on bail would help to reinforce a presumption of innocence.

Second, and perhaps more amusingly, one summer when I went to visit my then 80+ year old French grandmother in Paris, I casually remarked that, since my last visit, the city had put an asphalt cover over the cobblestones of a street that ran past her building. “Oh,” she replied, “they say that’s ‘urban improvement’ but it’s probably because the authorities don’t want us to build barricades!” I laughed quietly at the realization that she, in true Parisian fashion, was still fierce enough to think about how to defend her rights or resist oppression.

III. Conclusions & Next Steps

To conclude, achieving good government, with and through the Rule of Law, is not easy; but the need for the Rule of Law is clear. Those with political, economic, police, and/or military powers, must be held accountable through such things as elections, litigation, and public oversight. Otherwise, those “men of power” will not only limit citizens’ individual freedoms, but they will—inevitably—make socio-economic conditions worse, as they unendingly seek to increase their personal wealth and power.

Again, only a system of strong and functional checks and balances, a.k.a. the “Rule of Law,” will keep you and your community safe and able to prosper economically, culturally, spiritually, and intellectually.  So that is why, my fellow Americans, you need to care about—and insist upon—good governance through the Rule of Law.  

Someone might ask, however, “What can I do to ‘preserve, protect, and defend the Constitution of the United States’?”

First—to take the elements of a functional system of Rule of Law in somewhat reverse order—consider speaking to people in your community about what your expectations, interests, and concerns are. For example, you might attend and speak at meetings of local government councils, or of business or social associations. You could also write to local news outlets, or similar.  

Additionally, consider joining or financially supporting civil society organizations (such as AAROL) that promote good governance and/or accountability, generally. Many examples of such organizations could be cited, but they might include, for instance, any of the non-governmental organizations (NGOs) listed on, for instance, the University of Pennsylvania’s Center for Ethics and the Rule of Law Interns Guide or AAROL’s Mapping Organizations Supporting the Rule of Law resource.

Note that the above suggestions dovetail with element “C” of the Rule of Law—supporting or actively being involved with civil society organizations.

Second, monitor proposals at the local, state, and federal levels to amend laws or regulations. A key problem facing the U.S. today is the degree to which, if any, “Executive Orders” (or, “E.O.s”) by the President can or should so modify or revise existing legislation or administrative practices, that presidential powers would be unduly expanded. You do not have to be a lawyer to look into what laws and cases say, but it would make sense to be in touch with local or state bar associations to see what they might be thinking or doing about possible changes to the law at different times and places. Again, speaking out about what you consider appropriate, or problematic, is your right and duty as a citizen.

Third, there is the option of writing or calling your representatives in your state assembly or in the U.S. Congress. Although Congress has been called “the broken branch,” it is still a powerful institution and relatively sensitive to ordinary citizens’ opinions between elections (as opposed to the Executive Branch, if/when a President and his immediate circle think they received a “clear mandate” from the electorate at the last election). Still, it never hurts to write to the White House, if so moved.

To strengthen one’s voice, and to leverage the mutually reinforcing nature of the main dimensions to a functional Rule of Law system, consider working with an association, or mobilizing groups, to draft and send in possible amendments to existing or pending legislation. This might include trying to work with one or more lobbying firms that have developed relations with decision-makers in the state or federal capital. The effort to influence what legislators do via substantive proposals, and/or lobbying, might be undertaken in addition to efforts—especially by NGOs—to organize public demonstrations or public discussions of issues at relevant venues (e.g., town halls, campuses, or media outlets whether online or on air).            

In short, a few years ago, a book came out asking “What’s the Matter with Kansas?” but the state motto of Kansas “Ad Astra per Aspera” (“To the Stars through Difficulties”) should inspire everyone today: Questions may have arisen about the commitment of some of our leaders to the norms and parameters set out in the U.S. Constitution and Bill of Rights but, by remaining attentive and active in support of the Rule of Law, American citizens can ensure the blessings of liberty and prosperity for ourselves and our posterity.

ABOUT THE AUTHOR: I’m Alain Norman, an attorney who has, over almost 30 years, often worked on promoting the rule of law and good governance in various countries. This started when I worked with the American Bar Association (ABA) to help with legal reforms in the former Soviet Bloc and then became the first liaison of the ABA to the International Criminal Tribunal for the former Yugoslavia. Having served over 20 years as a U.S. diplomat, and having earned a Master’s degree in Comparative Government from the London School of Economics & Political Science, I can offer readers/listeners a good deal of experience both in assessing, and in helping, nations’ political and legal systems to improve as regards to human rights, anti-corruption efforts, and the administration of justice.

---