Six Steps to Rebuilding Rule of Law in America

The immediate crisis is only symptomatic of chronic pathologies that have persisted for decades.

The grotesque killing of George Floyd by police in Minneapolis last week was a startling illustration of the rule of law deficiencies in America. Violence and looting by certain protesters have been condemned as a breakdown in law and order. Make no mistake though: Long before recent events the rule of law was under siege in America.

While the Trump Administration bears responsibility for inflicting acute harms, less noticed is that for decades the US has been suffering chronic deficiencies in rule of law, maladies that predate the current president. Six major rule of law failings must be addressed.

1. Systematic unfairness and injustice in the criminal justice system. The overwhelming unfairness of criminal justice in America has been well documented. African Americans and Latinos have suffered vastly disproportionate violence by police and in criminal justice generally. Shoddy forensic science, coercive plea bargaining, wrongful convictions, unprecedented overuse of incarceration for nonviolent offenses, the growth of private profit-making prisons, and substandard correctional conditions must top the list. It is impossible to dissociate these practices from systematic racial injustice.

2. Massive levels of organized corruption and influence peddling. The Citizens United Supreme Court decision overturning limits on campaign-related spending by interest groups has distorted and debased American democracy. Further, the revolving door between government service and high-priced lobbying firms has highlighted the substantial benefits that private interests expect to gain by hiring ex-officials to curry political favor on their behalf.

3. Inequities and injustice in housing and tenant rights. The harsh use of foreclosure and eviction inflicts tremendous harm on poor families including children. Current plans to provide some relief for mortgage holders and tenants during the COVID-19-induced economic crisis only highlights the inherent brutality of housing laws. Huge shortages in civil legal aid to protect housing rights compounds the unfairness of the system.

4. Infringements on voting rights that disproportionately affect minority voters. Successive federal court decisions have paved the way for Republican-led efforts to impede voting by erecting major hurdles to voter registration, preventing absentee balloting, removing citizens from the voting rolls automatically for failing to vote in recent elections, and barring current and former inmates from voting.

5. Violation of migrants’ rights. The Constitution provides the president with plenary authority over immigration. It’s reasonable for governments to exercise controls over immigration, but they must respect immigrants’ human rights. Most troubling is the shockingly brutal family separation policy, which has inflicted misery and particularly hurt children. Blocking refugees from even asserting their claims for asylum is also shockingly callous. Migrants may not be entitled to equivalent protections as citizens, but the basic breaches of due process the system permits are completely inconsistent with the spirit of the rule of law.

6. Abuse of power and undermining checks and balances by the executive branch. Last but by no means least, this rule of law defect is manifold. The Trump Administration has daily shown wanton disregard for government ethics, systematic actions to block congressional oversight, gutting independent executive-branch accountability mechanisms, political interference with civil service functions, appointing unqualified officials routinely, gross nepotism, to list only a few of its sins. The recent decision to fire the head of the body overseeing $2 trillion in Covid-19 relief expenditures, was particularly brazen. Add to this list the draconian and unaccountable national security measures instituted and maintained under successive administrations since 9/11.

All of these challenges are complex and require sustained reconstruction. Previous government crises in American history have spawned major institutional renewals. Far-reaching ethics and oversight improvements following the Teapot Dome and Watergate scandals offer useful precedent for what’s needed today.

Complicating these challenges is the fact that paradoxically, these injustices and abuses have generally been applied using legal tools. There is an important if abstract distinction between applying the letter of the law and upholding its spirit. Simply following legal rules or accepted interpretations does not mean a society lives up to the rule of law. Intangible considerations like fair play, reasonableness in interpretation, avoiding the appearance of impropriety, forbearance, are essential elements to the rule of law.

Another factor behind many of these breakdowns is the decades-long effort to populate the federal judiciary with right-wing ideologues. Already problematic before his election, under Trump the situation has worsened grievously. Not only are his judicial appointments mostly extreme in their views but large numbers have fallen short of the basic the qualifications expected for these important roles.

Restoring the rule of law in America cannot be accomplished by the Democrats alone. The conditions are so grave that only a collaborative approach can deliver lasting and significant change. The process must be truly bipartisan. However justified complaints about the Trump Administration’s conduct in office might be, a punitive approach will prove counterproductive.

The Republicans for Rule of Law initiative offers a glimpse of the kind of approach that’s needed. It is essential that Republicans of moral conscience end the denials and tacit acceptance of racial oppression that many in the party have accepted for so long. Sensible thinking by more centrist Republicans may build bridges towards a renewed sense of shared civic purpose among a broader segment of the public.

While Democrats and Republicans might disagree strongly on specific government policies, one of the strengths of American constitutional democracy has been a shared belief that the law should rule. This goal is not an end in itself but a condition for a just society. It is now abundantly clear that when the immediate crisis abates, America will need to embark on the long road to rebuilding the rule of law.

International lawyer and Executive Director, Rule of Law for Development Program (PROLAW), Loyola Chicago Law