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Threats to the rule of law: state courts, public expectations & political attitudes.

Article Excerpt
"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 government. Today our form of constitutional democracy has become the world's gold standard of government. (3) Countries as diverse as India, Lithuania, South Africa, and Canada have staked their future on the promise of constitutional democracy. While we embrace these extraordinary developments, are we in the United States turning away from our foundation? I ask that question because a convergence of potent developments is exerting significant pressure on our form of government: attacks by politicians and others on the constitutional role of our courts to be free from political interference, the massive influx of special-interest money into judicial selection and retention procedures, and the loosening of ethical constraints on what judicial candidates may and may not say about cases likely to come before them. Combined and unchecked, these developments will have a wide-ranging, permanent, and damaging impact on our freedom, our security, and our prosperity.

In thinking about our structure of government today, we would do well to recall how--and why--our government came to be. We can pinpoint its creation. The year? 1780. The place? The Commonwealth of Massachusetts. The document? The Massachusetts Constitution, in which the principle of constitutional democracy first gained institutional and practical form. It begins with a ringing promise:

All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. (4)

Grand words, but was it possible to design a scheme of government to realize those...