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The Rule of Law vs the Law of Rule

Updated: Mar 28, 2023

The Supreme Court’s draft statement on abortion clarifies an issue I thought a lot about when writing A Climate of Justice: “Can civilians depend on the enforcement of the rule of law?” I guess they cannot, and neither can we.

In the Chapter on The Civic, I made the argument that with the world-wide agreement on the Geneva Protocol to protect civilians in times of war, civilians were not dependent on the generosity of persons, but on the law for their protection. I knew that laws had to be enforced, but I assumed that civilians could at least make an appeal that they should be enforced.

In this regard, I followed the arguments of Martin Luther King Jr. who spoke of the Constitution as a “promissory note” of equal treatment that now should be realized. Laws, in other words, were not descriptive statements of current relations, but rather normative statements that give us a lodestar to change current relations.

I knew that laws had been used to justify slavery, segregation, as well as allowed lynching and white terrorism. At the same time, laws had been used to protect workers from harm and children from abuse. There are laws “on the books” that are the result of courageous struggles for civic and human rights. Trump, Putin, and now the Supreme Court, have shown us how tenuous it is to ensure that what we write turns out be to right.

The hallmark of a constitutional democracy is that no one is above the law, which means as well that no one is below the law. Laws, in other words, should not be used as instruments of oppression, which is what the Supreme Court is set to do. They can do this because the majority lied during a Congressional confirmation process and now rule the roost.

Where does that leave us? It leaves us with the only thing we have left: the ballet box. This election is not just about democracy or autocracy, its also about the rule of law or the law of rule. No one is safe until we restore the democratic foundation of the law.

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