Rule of Law Crucial to American Government

Songwriters have an allure with the law. See, for instance: “I Fought the Law” by the Clash, “Lawyers, Guns, and Money” by Warren Zevon, “End of the Innocence” by Don Henley and Bruce Hornsby, “This Side of the Law” by Johnny Cash, and “Alice’s Restaurant” by Arlo Guthrie. There are many more songs about the law.

This crossed my mind when one of my neighbors asked me recently about the “rule of law” and what that meant exactly. Of course, this was in the context of the decision not to prosecute Hillary Clinton for her email security lapses. While I have serious concerns about the decision not to prosecute, this article does not make a judgement about that call. As someone who has made thousands of decisions about whether to charge someone or not, I have read good reports about FBI Director Comey and his integrity, and do not know enough about the details to question his decision. The rule of law, however, is a critically important piece of our justice system and worthy of an article.

The rule of law, in its simplest form, is that nobody is above the law. All people, Presidents and Kings included, are treated the same under the law. The rule of law appeared in print in the Magna Carta in 1215. Article 39 stated: “No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers, or by the law of the land.” While this language is hard to follow today, the intent was that no person’s life, liberty, or property could be arbitrarily taken away by the King, nor was the King himself above the law.

In other words, no person’s fate was in the hands of a single person (the King), nor could one person (the King) get away with not being subject to the law of the land. This is critically important to our society. This protects from having a dictator suspend the law to suit himself. As James Madison wrote in Federalist Paper No. 51, in 1788: “If men were angels, no government would be necessary. In framing a government which is to be administered over by men, the great difficulty lies in this: you must first enable government to control the governed; and in the next place oblige it to control itself.”

This is why the framers put in place three branches of government, to separate powers so no one branch could obtain absolute power over the law. For our system to work, the “rule of law” is all-important. Every member of Congress, every president, every judge, and every public official swears to uphold the Constitution when they take office. This is not a formality. Each branch of government swears to stay within its enumerated powers as set forth in the Constitution.

For the rule law to work, the World Justice Project has set forth four universal principles which must be present:

The government and its officials as well as individuals and private entities are accountable under the law;

The laws are clear, publicized, stable, and just; are applied evenly; protect fundamental rights, including the security of persons and property and core human rights.

The process by which laws are enacted, administered, and enforced is accessible, fair and efficient; and

Justice is delivered timely by competent, ethical and independent representatives and neutrals who are sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

These principles apply across cultures, nations, and governments. For a just society to exist, these core principles are essential. While the United States has arguably been the greatest country to ever exist, we need to hang on to these principles--accountability, personal rights, property rights, fairness, and independence—i.e. the rule of law, to continue to be a great country.

Judge Russell Fagg has been a State District Court Judge for over 21 years, handling over 25,000 cases. Fagg is a past president of the Montana Judges Association.