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    A Guide for Leading Community Discussions

    What Is the Rule of Law and Why Is It Fundamental to American Democracy?

    Background and Purpose

    The American political system is experiencing polarization and turmoil at levels not seen in over 50 years. Faith in democracy has never been lower. Almost half of the U.S. population is embracing authoritarian ideas and acts long viewed as antithetical to democratic self-government. 

    What is commonly referred to as the “Rule of Law” is now increasingly contested and politicized.  While this concept is generally seen as foundational to our constitutional democracy, it is not often well-defined – which makes distortion and abuse of the idea easier and more dangerous. 

    The ABA Task Force on Democracy has created this discussion guide to equip lawyers, educators and other community leaders to hold conversations with everyday Americans about the Rule of Law. Laypeople should be able to understand what the Rule of Law means, why it is fundamental to the democratic process and what it requires of all of us. And lawyers have a professional responsibility to help make that happen. 

    Framework and An Analogy

    Immigrants seeking US citizenship must pass a test which includes this foundational question: What is the Rule of Law? Applicants are told there are four acceptable responses. This discussion guide will use those four responses as the framework for discussion.

    But before delving into those, it can be helpful to open a community conversation with an analogy from sports that conveys the spirit of the Rule of Law:

    • Whether it’s basketball or soccer or baseball, the game is played by individuals who all pre-commit (i.e., agree in advance) to following a set of clearly articulated rules that cannot be changed mid-game.
    • The rules apply equally to all individuals, regardless of position, fame, talent or wealth.
    • There is an independent party, the umpire or referee, who is responsible for enforcing the agreed-upon rules and resolving disputes in a fair and unbiased fashion.
    • The decisions by the umpires or referees must be respected by all participants in the game.

    What makes such rules work is a set of norms. A breakdown of these norms – especially norms of precommitment to rules and acceptance of adjudicated outcomes – can lead to a breakdown of the game itself. Imagine if in a baseball game the batter and baserunners don’t like an umpire’s call that ends the inning and then the players refuse to leave the field – or, worse, the players encourage their fans to storm the field to prevent further playing of the game.

    Democracy is not a game. But its effectiveness and legitimacy depend on an analogous combination of rules and norms. In self-government as in sport, rules that seem unjust or outmoded can be changed when there is enough demand from participants. But such changes are themselves subject to rules and norms about how to decide things together.

    Facilitators’ Notes

    • The key idea is that people pre-commit to a common set of rules and agree to follow the rules and abide by decisions of the umpire or referee.
    • Emphasize that this system does not favor one side over the other or one political party or philosophy over others.
    • This concept of agreeing in advance does not mean that the rules cannot be changed over time. Indeed, over the course of our history, the laws have been modified, for example, to rectify past mistakes or in response to changing notions of fairness or equality.

    The Rule of Law According to the U.S. Citizenship Test

    The U.S. Citizenship Test has four different acceptable answers to the question “What is the Rule of Law?” The first is that no one is above the law. Second, leaders must obey the law. Third, government must obey the law. And fourth, everyone must follow the law.

    For each of these four answers we provide a set of talking points to guide discussion.

    Facilitators’ Notes

    • All the acceptable responses overlap in certain ways but each of them is useful in illuminating a particular aspect of the Rule of Law. And using the structure of the four “official” responses can help give structure to the conversation.
    • Across all four responses, the Rule of Law embodies a norm of forbearance. As citizens, we recognize that our preferred candidates and policies will sometimes prevail and sometimes be defeated. The Rule of Law requires better winners and better losers.
    • These general principles are vitally important in the voting context.  While there are several factors that may affect the vote in any election, it is imperative that people respect the outcome of fair and open elections.  When people exaggerate discrepancies or spuriously label the voting process as somehow rigged or corrupt, the democratic process is weakened.
    • While it may seem obvious to lawyers and others involved in the legal system, the Rule of Law is the fundamental base upon which are elections processes are built and our elections are conducted.  All the various constituencies have a vital role: Congress and the Executive Branch in adopting laws governing the conduct of elections; the Judicial Branch in resolving disputes about the administration of elections; and citizens in exercising their rights, observing the various rules established for voting, and respecting the outcome.
    • Find case studies from both American history and contemporary political life that help illustrate these ideas. Analogy and parable can also convey the points.
    • Use the points below to form questions rather than make assertions. Draw people out into a conversation.

    Answer No. 1:  “No One is Above the Law”

    • The Founders’ formulation of our democratic republic is a product of Western political philosophy and practices that evolved over  centuries.
    • Many scholars and historians track this back to the Magna Carta, which that the king was not above the law and that the supposedly “divine right” of kings and queens was in certain respects subordinate to other natural rights.
    • Later centuries saw the democratic evolutions that curbed the concentration of power in the hands of despots and required the exercise of state power to be fair and non-arbitrary. The American Revolution was a peak expression of these trends.
    • American democracy rejected rule of a king in favor of rule by elected representatives acting with the consent of the governed and subject to the rules and restrictions of a written constitution
    • When we say “no one is above the law” today, we refer not only to monarchs but to the powerful and prominent. In many ways, this is the key aspect of American democracy — the concept of the Rule of Law applying to all persons regardless of their status or position.
    • We know this rule is an ideal – there are times and places when certain people do seem to act as if they are above the law. The question for us is: should we accept that?

    Facilitators’ Notes

    • This formulation may seem obvious or even trite to modern ears. However, it was really quite radical when the American Revolution occurred, and the Constitution was adopted.
    • It is important to acknowledge the fact that we are describing an ideal and, at its founding, the US fell far short of this ideal. Our founding documents were a compromise that shamefully left slavery intact. Equally shameful is the fact that our laws then and even some to this day have allowed certain Americans to behave as if they were above the law.
    • Acknowledging this uncomfortable truth will ensure that the conversation about the rule of today meets people where they are. But from there, make clear that the ideal is nevertheless vitally important – and that much of American political history consists of groups of people (often marginalized groups) pushing their government and their fellow Americans to live up to that ideal.    
    • In response to the often painful failures of our system to live up to our ideals, many have adopted a nihilistic attitude that the entire system is hopelessly corrupt and incapable of being fixed.  If enough people adopt this attitude, it will become a self-fulfilling prophecy. In leading this discussion, giving space for these reasons for cynicism is necessary before you can encourage and nurture a desire to uphold the Rule of Law.

    Answer No. 2:  “Leaders Must Obey the Law”

    • This is an obvious implication of the first formulation of the Rule of Law and flows logically from the rejection of the king being above the law
    • Elected representatives and other government officials are subject to the same laws and regulations as any ordinary citizen
    • The US Constitution sets up a carefully constructed system of checks and balances in part to ensure that officeholders cannot abuse power and that no one branch is above the others or above the law
    • The Legislative Branch is charged with proposing and enacting laws (with approval of President), the Executive Branch is responsible for implementing and carrying them out and the Judicial Branch is the final word on interpreting the laws and settling disputes
    • The Civil War and Watergate are examples of times when elected leaders deviated so far from this principle that they broke the system, forcing conflict and structural reform
    • If leaders are not held to the same standards as ordinary citizens, respect for the Rule of Law is diminished and ultimately people begin to see the entire system as illegitimate
    • What do you think happens to a society when leaders are not held to the same set of standards of behavior that we hold ourselves, our neighbors, families, and coworkers to? 

    Facilitators’ Notes

    • Again, remind participants that the U.S. system is an explicit rejection of what the Founders had seen throughout Europe in the latter half of the 18th Century.
    • Emphasize the importance of separation of powers in keeping one official or branch from establishing absolute rule. The system is set up so that the three branches co-exist equally and serve as checks and balances on each other
    • Historical example of Watergate: An executive branch that flouted rules and norms was reined in by Congress and the courts, reaffirming the notion that even the President must obey the law. 

    Answer No. 3:  “The Government Must Obey the Law”

    • A critical component of our system is that the government is bound by and must act in conformity with the law
    • The Constitution (including the Bill of Rights) contains many provisions setting out certain rights of individuals that the government must respect (e.g., freedom of religion, no unreasonable searches and seizures, trial by jury of peers)
    • We have an independent judiciary established to provide a place for citizens to argue grievances against the government
    • Compare this with autocratic regimes like Russia, Hungary and Turkey where courts are not independent and are captured by the autocrat’s underlings, leaving no mechanism to hold government accountable for complying with the law
    • Can you think of occasions when American citizens have used the law to hold a particular US government representative or official to account?

    Facilitators’ Notes

    • A hallmark of the U.S. system has been a court system, especially at the federal level, where ordinary citizens can challenge government actions that trample individual rights
    • In the 20th Century, a stellar example was Brown v. Board and federal decisions that dismantled segregation.
    • The Bill of Rights enshrines basic freedoms and individual rights that cannot be violated by anyone, especially the government.
    • The loss of Rule of Law would mean loss of these freedoms, such as freedom of speech, freedom of religion and right to bear arms
    • Examples that your participants may raise from U.S. history – such as Jim Crow or the internment of Japanese Americans during World War II – could open up an important layer to the discussion of Rule of Law. Just because something is legal and done “under color of law” does not make it just. Again, the remedy for that kind of situation must be more, not less, commitment to law and democratic processes
    • People across the ideological spectrum have such a deep mistrust of government that this response often provokes strong feelings. Let participants air any feelings they might have – and then ask them: What are the ways that we govern our government?

    Answer No. 4:  “Everyone Must Follow the Law”

    • The law applies uniformly to everyone, without which society would devolve into a state of anarchy or chaos – or of the kind of arbitrary and authoritarian abuse of law, which is anathema to democratic ideals.
    • In the U.S. system, the executive branch is responsible for uniform enforcement of the laws adopted by the legislature.  The judicial branch is charged with determining whether the law has been violated and imposing any punishment for violation.
    • ·      unjust, citizens must have wide leeway to protest those laws, or to engage in civil disobedience and accept the consequences as a means to raise awareness.
    • Critical to the functioning of this system that the application of the law and determination of punishment be seen as unbiased and nondiscriminatory – and when it is not seen this way, the law itself can provide paths for remedy and reform
    • Do you have faith that other people in your community follow the law?  Do you think that people are generally treated fairly by law enforcement officials when there might be gray area?  How can we explore what this means for the integrity of the Rule of Law itself in the United States?

    Facilitators’ Notes

    • A hallmark of the U.S. system has been a court system, especially at the federal level, where ordinary citizens can challenge government actions that trample individual rights.
    • Discuss a society where this concept doesn’t apply: quickly becomes anarchic or fascistic, a place where might makes right, rule is by force rather than the consent of the people, laws apply differently to disfavored groups than to groups in power.
    • Discuss dependence of this principle on having clearly articulated laws and regulations and applying them in unbiased, non-arbitrary and nondiscriminatory fashion.
    • Again, allow for the point that in the United States, administration of justice can often be unequal according to color or class or majority status. And then point out that a key aspect of the Rule of Law is that it gives us the tools to change rules so that they are more just – and that the alternative, dispensing with law or the Rule of Law altogether, is assured to result in injustice.
    • Ultimately, this response is about civic faith – belief in each other as much as in our institutions. Without that, even perfectly honest enforcers of law and administrators of justice cannot sustain a democracy.