Why law abiding young people should cherish the rule of law

I imagine that few Duke students have spent much time thinking about the rule of law or worrying about its potential demise. 

After all, Duke students are almost always law-abiding citizens that, for the most part, do not need to fear arbitrary arrest and prosecution. I imagine very few have ever been hauled into criminal or civil court to defend themselves and had to rely on a lawyer, judge or jury to make sure they were not treated unjustly.

So why should Duke students fret about the possibility that the rule of law might be eroded depending on the results of the next election?  

The reason is that the rule of law is the foundation of a free society. Once the rule of law erodes, it is difficult to recover. Without the rule of law, life as you know it, even as a student at Duke, would be unrecognizable compared to today. 

So, what is this amorphous concept of the “rule of law” and why is such an important component of a liberal democracy?

At its most fundamental, the rule of law is a core restraint on the exercise of governmental power. The rule of law requires that when the government affects the citizenry, it must act consistent with a set of preexisting rules put in place by democratically elected bodies accountable to the people. The rule of law also requires a set of institutions, like an independent judiciary, capable of enforcing these rules and making sure they are applied fairly. 

For example, consider student loans and Pell Grants.  Students don’t get notice that arbitrarily tells them how much money they are going to get in loans and grants (yes, I know FAFSA was messed up this year — but you know what I mean). Rather, in our rule of law society, Congress enacts laws that establish how student loans and Pell grants are going to be calculated. Executive agencies, like the Department of Education, interpret these laws and publish a set of detailed rules and instructions about how loans and grants are calculated. After getting your financial information, Duke applies the rules and calculates the proper loan and/or grant amount. If you don’t agree with the calculation, you can submit an appeal to Duke arguing that the rules were not properly applied to your individual circumstances.  

But consider what could happen if the United States were ruled by an individual determined not to be constrained by the rule of law. This leader sorts society into favored and disfavored groups. This president could order his Secretary of Education, a total loyalist who he appointed, to give larger student financial aid to the parts of society he believes deserves them and low or no assistance to groups of students he disdains.  

The sad answer is that there is no constitutional provision that codifies the rule of law. The Constitution provides only one remedy to restrain a lawless president — impeachment by the House and conviction and removal by the Senate, which has never occurred in our 248 year history. This summer’s Supreme Court decision that presidents are immune from criminal prosecution for actions that fall within their defined constitutional duties has made it even more difficult to hold future presidents accountable for lawless conduct.  

The rule of law is an unwritten “norm.” It is a culture of law-abiding that has permeated our society and has been institutionalized as a fundamental principle within our government. 

For example, there is a long tradition, written into executive branch policy, that presidents should not interfere with the Department of Justice’s discretionary decisions on opening criminal investigations and seeking indictments. This “norm” exists to prevent politics from impacting one of the most powerful actions any government can take — prosecuting a person for a crime and taking away personal liberty. 

But this norm is not an ironclad enforceable law. There is nothing stopping a president from violating it. Indeed, a president could appoint a loyalist Attorney General who also does not respect the rule of law, then that appointee could acquiesce in allowing the president to use the criminal justice system as a tool of politics. The same holds true of other agencies with coercive power like the Federal Bureau of Investigation, the Internal Revenue Service and on and on. 

The ultimate protection against abuse of the rule of law is the people themselves. We are the ones responsible for protecting the rule of law by carefully scrutinizing those who seek the awesome power that comes with the office of the presidency (as well as those who run for other executive offices like governor or mayor). 

A citizenry that plays fast and loose with giving power to an individual that finds law a mere inconvenience and cares not a whit for the norms and traditions of democracy is playing a dangerous game. 

For once the electoral votes are counted and the Chief Justice administers the oath of office, all the power of the presidency immediately vest in that one person. Norms and traditions can be ignored with impunity. 

So, when you go to cast your ballot this year, and I hope you do, it is all of our solemn duty, to consider which candidate will respect and protect the rule of law that keeps our society safe and free.  

David Schanzer is a Professor of the Practice in the Sanford School of Public Policy. This piece is part of the “Virtues of Democracy” column, a series of op-eds by faculty and student contributors across Trinity College and the Sanford School of Public Policy. The column typically runs on Tuesdays or Thursdays.