The Rule of Law
Even As We Try to Export the Ideal of Justice By Law, Not Whim, Some in America Resist That Very Ideal

By MARCI HAMILTON


hamilton02@aol.com
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Thursday, Oct. 23, 2003

After the Berlin Wall fell, Eastern Europe became a fresh breeding ground for democracy. Accordingly, American experts of all stripes traveled across the Atlantic with their trusty copies of the United States Constitution to explain how good governance can be accomplished.

They had the best of intentions, and in some circumstances, actually provided some assistance. The problem with exporting a constitution, though, is that constitutions must be made to fit their people. As a result, we have learned that the American system does not necessarily work for everyone. Indeed, many of its peculiar features probably only work for us.

We have also learned, however -- after several years of pushing our constitutional format -- that there is one indispensable element in a free society. It is the rule of law.

By that phrase, I mean the ideal under which every citizen is governed by the same law, applied fairly and equally to all; government favors may not be bought; and justice is administered blindly, in the sense that it never stoops to favoritism. Under this ideal, government decisions are not the whims of individuals. Rather, they are duly enacted into laws, that are then obeyed as they were written.

One can decree governance structure and individual rights until one is blue in the face, but if there is no rule of law, then there is neither order nor liberty. Individual countries can best decide for themselves whether to opt for a Parliament, a Congress, or another form of legislature, or whether to opt for a President or a Prime Minister. But one element is necessary for any representative democracy to succeed: The rule of law.

Exporting the Rule of Law

Public servants such as Justice Sandra Day O'Connor and former Pennsylvania Governor and U.S. Attorney General Richard Thornburgh have invested enormous amounts of time into the project of exporting the rule of law to countries trying to establish democracy.

Justice O'Connor has led the American Bar Association's Committee on the Central and Eastern European Law Initiative (CEELI), traveling to those countries -- as well as many others around the world -- countless times to carry the message. Similarly, by his own account, Thornburgh has been to at least 40 countries on the rule of law mission.

What these public servants and many others are doing is invaluable: They are exporting that which is most precious to the American system: the principle that all are equal under the law.

Even as we export this precious principle, however, there is evidence that it has lost ground here at home. And our credibility in urging others to adhere to this ideal, depends heavily on how closely we ourselves are able to adhere to it.

One Problem With Adherence to the Rule of Law: File-Swapping

Two recent trends are very disturbing, in this regard. One is a trend of law flouting: Millions of students, raised in the Information Era, have been taught to think by the hacker culture that whatever they want on the web they can have--regardless of the copyright law.

For them, compliance with the law is optional -- and it is an option one considers based on personal preference, not obligation or duty. An entire generation thus seems to believe it has the right to pick and choose among the laws on the books, at least on the web.

Why is this happening? Several reasons can be isolated. The shock of the Internet, and the time lag between its advent, and the advent of cyberlaw, is partially to blame. But the prevalence of cultural relativism must take some blame too: For some, a culture of lawbreaking is just as valid as a culture of obedience to the law.

This lawlessness won't last forever. Strong forces within the society--from government to business to the courts--are slowly but surely building the necessary legal fences on the web. But it remains to be seen whether the culture will keep pace. And it's hard to predict whether the harm done to the principle of the rule of law for this generation can ever be fully repaired. Will young people accept the rule of law only reluctantly, and never internalize it or fully understand its virtues?

One Problem With Adherence to the Rule of Law: The Notion of Mandatory Exemptions

Meanwhile, others have argued not that they are entitled to break the law but -- equally dangerously -- that they are exempt from it. They have claimed, contrary to the Supreme Court's decision in Employment Div. v. Smith,that they should have a statutory and constitutional right to mandatory exemptions from the law.

Since at least 1990, religious institutions have been arguing for a right to trump any law that burdens their religious conduct. They have rolled out the Religious Freedom Restoration Act, both at the federal and state levels, and the Religious Land Use and Institutionalized Persons Act. Worse, they have done so under the deceptive banner of "religious liberty" -- as though religious liberty in the United States has meant freedom from the rule of law.

There seems to be no limit to the insistence of religious institutions on keeping themselves immune from legal obligations or judicial process--even when the victims are children. In the Catholic Church scandal -- where no one can dispute that a great evil has occurred -- the Church has insisted on invoking the so-called "church autonomy" defense to impede clergy abuse prosecutions and civil suits. Even when it comes to blatant criminal activity, the Church still considers itself exempt from laws everyone else complies with -- such as routine discovery requests in child sexual abuse cases.

It is an extremely troubling development in American society when the mainstream religious institutions traditionally looked upon as leaders of morality are busy arguing that they should not be held accountable to the criminal laws governing everyone else.

At the time of the framing, by contrast, preachers were instrumental in instituting the rule of law, sermonizing in favor of obedience to legitimately enacted laws. It is sad that we have now departed so far from the standard they once set.

Equally disappointingly, many mainstream religions keep seeking statutory rights to avoid the law even though their own theological traditions dictate obedience to the rule of law. In departing from that vision, many have left their best theological contributions to this society behind.

The Supreme Court's Laudable Insistence on the Rule of Law.

Exceptionalism has led to some of the worst Supreme Court opinions in history. Consider one of our most despicable: Dred Scott v. Sanford. By declaring that a slave was, and always would be, property, the Court made a horrific, and historic exception to the constitution's insistence on protecting all persons.

That decision was not only wrong from an ethical point of view, but also because it thwarted the rule of law, which ought to apply equally to all persons. Taking a class of citizens out of the category of persons protected as such by law is perhaps the most profound way the rule of law can be undermined.

Meanwhile, refusing to make exceptions to the general application of the law has led to some of the Court's most shining moments. In 1997, for instance, in Boerne v. Flores, the Supreme Court rightly declared unconstitutional the misguided Religious Freedom Restoration Act, a law that attempted to give religious institutions special privileges to break the law others did not enjoy.

The religious groups that criticized Boerne as a new Dred Scott fundamentally missed the point. Dred Scott treated an entire race far worse than another race, thus violating the core principle of equality at the heart of the rule of law. It subjugated one group to another. Boerne, and its predecessor Employment Div. v. Smith, refused to treat one group--religious individuals--better than all other citizens. Rather, those two historic decisions paid homage to the rule of law, cementing the long-held rule that religious individuals are subject to the rule of law just as much as anyone else. Religious belief does not excuse illegal conduct, and that is as it should be.

Only a legislature, after duly considering the public good, is in a position to determine whether an exception should be made where a particular legal rule substantially burdens a religious practice. The emphasis, in a culture committed to the rule of law, must be on the public good, not solely the individual religious believer's needs. Were state and federal legislatures properly trained on the public good, current exemptions for child medical neglect and for clergy child abuse reporting might well not exist.

The ultimate goal of our Constitution is not just liberty, but ordered liberty. It is not the liberty to do whatever we want, whenever we want to, under whatever exceptions we devise for ourselves, at whatever cost to others we happen to inflict. Rather, it is the liberty to exist in society confident that we are governed by laws that apply equally to all.

When laws are riddled with unjustified exceptions, or simply ignored or flouted, this liberty is crucially undermined. File-swappers don't just cost record companies a few extra dollars, and those who seek special child abuse reporting exemptions don't just cost children their well-being. These types of actions have more intangible costs too -- for they harm an ideal: The ideal of the rule of law.

For years, our rule-of-law missionaries have made noble attempts to convince other countries of this virtue of our system. Now, maybe it is time to bring them back to our own shores to remind us again what makes this country great.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on constitutional issues is available on this website. Her email address is hamilton02@aol.com.

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