Threats to the rule of law: state courts, public expectations & political attitudes
“The law makes a promise: neutrality.1 If the promise gets broken, the law as we know it ceases to exist.” These are the words of Supreme Court Justice Anthony Kennedy.2 They remind us of the potential vulnerability of our system of justice. It is a system erected by our federal and state constitutions and made manifest in thousands of concrete ways through laws and the enforcement of laws. But, ultimately, it is a web of relationships grounded in a moral compact, a promise of fair and unbiased justice. “If the promise gets broken, the law as we know it ceases to exist.”
Those of you who grew up in the United States–the birthplace and stronghold of constitutional democracy–may take for granted the concept of a just government.
But as one who has had personal experience of the arbitrary, often brutal abuse of official power, I never can. Yes, in the South Africa of my youth there were duly enacted statutes, and a sophisticated network of executive agencies and courts to implement and enforce those statutes. But apartheid South Africa’s laws had one primary aim: to protect and consolidate the power of the powerful. Here it is different. The United States has given the world much. But unquestionably this country’s most enduring contribution to human progress is the structure of government in which a foundational, written charter apportions public power, guarantees fundamental rights, and entrusts the ultimate protection of those rights to an impartial judiciary. Constitutional democracy so defined has been the foundation of our security and prosperity.
For two centuries America stood in splendid isolation in its chosen form of . . .
Endnotes
- 1This paper is taken from a talk given at the 225th Annual Meeting and 1902nd Stated Meeting of the American Academy of Arts and Sciences held on May 10, 2006.
- 2Quoted in Shirley S. Abrahamson, “Judicial Independence as a Campaign Platform,” reprinted by the Washington State Bar Association, available at www.wsba.org/media /publications/barnews/2005/mar-05-abrahamson (on file).