The rule of law

                In the United States, the rule of law is said to prevail. As you are doubtless aware, the rule of law is a key component of any genuine liberal democracy. It can be defined as the principle by which all people should be treated justly and equally in a court of law regardless of political beliefs, ethnicity, gender, sexuality or social background. In short, we should all be treated on an equitable basis and absolutely no-one should be above the law. Even the President can face the legal process. For instance, Richard Nixon was forced by the Supreme Court to hand over tapes regarding the Watergate investigation. He had originally sought to restrict public access to those tapes on the basis of executive privilege. The Supreme Court’s decision was the catalyst for Nixon’s eventual resignation. More recently, George W. Bush had to face court proceedings with regards to the Rasul case. As with Nixon, the ruling went against the President. It should also be noted that the Head of State can be impeached by the Supreme Court. This is not the case in other comparable democracies (such as the United Kingdom).

This being politics, there is of course a counter-argument to reflect upon. For example, some conservatives argue that members of the judiciary adopt a liberal mindset that is contrary to the concerns and outlook of ordinary Americans. This is significant because, according to conservatives; the Supreme Court should limit itself to a stance of judicial restraint. Those on the left however claim that disadvantaged groups within society fail to receive a fair hearing. On both sides of the political spectrum, there is an implication that the judicial system fails to uphold the rule of law.

The extent to which the rule of law exists has been subject to debate for many years. Take the case of Charles Beard’s thesis on the Constitution (which by implication relates to the actions of the judiciary in relation to the rule of law). Beard argued that our Constitution was motivated by the personal financial interests of the founding fathers. Rather than build a system based solely upon the rule of law, the framers of the Republic sought to protect their own personal property and economic standing. For instance, George Washington was the wealthiest landowner in the country and he managed to secure a constitutional guarantee that the newly formed nation would honor its lenders. George Washington had of course provided significant funds towards the American Revolution, and his role may well have more to do with personal interest than any wider concerns if one was to accept Beard’s revisionist thesis. The widely-respected political commentator Richard Hofstadter broadly agrees with Beard’s thesis on the Constitution.

In regards to the founding fathers, it should be noted that John Adams argued that the American system of governance should be “a government of laws and not of men.” His words seem very clear in both their intent and purpose. However, in practice the actions of politicians have at times failed to uphold the rule of law and the judiciary has often failed to exert sufficient power and authority to curtail those abuses. The most obvious illustration from recent times concerns the war against terror, during which a number of ancient civil liberties have been overturned. For example, under the Patriot Act the official authorities can intercept private E-mail communication. The Treasury Department also has the power to cancel financial transactions involving foreign agents and individuals, and the Department of Justice has the power to detain non-citizens without a formal charge being made. Other related examples include wiretapping, the controversy surrounding Abu Ghraib, the on-going saga of Guantanamo Bay and the use of waterboarding against terrorist suspects.

                Another issue to consider in this section concerns the actions of American foreign policy and its continued disregard for international law. The rule of law within the international community has regularly been ignored by administrations from both main parties when the national interest has been deemed to be at stake. For example, during the Bush administration the US seemed to flout international law over Iraq, climate change, the International Criminal Court and the World Trade Organisation. Despite gaining a Nobel Prize (!), Obama has done little to change our image amongst the international community. In truth, the United States of America is highly selective in how it applies and recognizes international law.

                When assessing the rule of law in the context of the United States, it has to be acknowledged that the judicial branch of government has to a considerable extent upheld the rule of law despite the activities of both the legislature and the executive. In relative terms at least, one would have to concur with Thomas Paine’s famous observation that “in America the law is King.” The Supreme Court has a great deal to do with that. Whilst far from perfect, it remains a significant bulwark against the power of the legislative and the executive branches of government.