In My Words: Let's not trump the rule of law
Elon Law Dean Luke Bierman recently published a column in regional newspapers about the importance of the rule of law to the American system of governance.
The following column appeared recently in the Greenville (S.C.) News and the Greensboro, N.C. News & Record via the Elon University Writers Syndicate. Views are those of the author and not necessarily of Elon University.
Let's Not Trump the Rule of Law
By Luke Bierman (email@example.com)
There is much to worry about in the nascent Trump administration and that’s without even giving an iota of consideration to policy or people. The failure to understand the essential nature of legal process has inhibited the ability of this group to undertake their work on behalf of the American people. That is an assault on the fundamental principles associated with the rule of law that underlies all that is essential about the American system of governance.
Foreign leaders unable to contact the newly elected president due to a lack of plan and execution of legal requirements puts American foreign policy at risk. A transition team delayed in working with the current administration due to a failure to acknowledge legal requirements by not signing required documents puts the government at risk of not being ready on Inauguration Day.
Uncertainty over the status of the Trump business empire due to lack of foresight and planning for compliance with conflict and other laws puts the administration at ethical risk. Appointees who cannot serve until compliance with conflict of interest requirements is certain puts the American enterprise in jeopardy. Ignoring intelligence briefings that may provide clues to the norms of international law suggests unearned impunity.
Woe is us. A disregard for legal process, apparent during the campaign in many ways, is coming home to roost. The world is a complicated place, far beyond the complete knowledge of one person. Indeed, in a democratic republic with constitutional demands of separate institutions sharing power to check and balance their realms of authority, one person cannot be all knowledgeable and all powerful. That is something with which we all should be able to agree.
The legal demands of this complicated world keep those checks and balances in place. Our government – federal, state, local – demands republican principles. The Constitution imposes them, on the federal government through the interwoven connections created by the Framers, and on the states through the Guarantee Clause in Article IV, section 4.
These are not mere words. They are finely crafted institutional demands made over more than 200 years of experience and put into place by law, derived from all the sources from which legal requirements emanate. This is complex because the issues government faces on the public’s behalf are complex. That requires faith in our constitutional design and system.
This government of ours, the American experiment in self-government, is not a business. It is not profit motivated, managed by a board of directors and shareholders. It is a polity that interacts with other governments - some friend, some foe, some in between. It is characterized by some short-term goals and some long-term goals. It is predictable yet unpredictable. It is precious yet complicated. It is transparent yet secretive. It is local yet national. It is peaceful yet warlike. It seeks liberty yet focuses on security.
Yes, it is complex.
This complexity finds expression in the rule of law. It is through our complicated system of law making and law interpreting and law implementing that we are able to bring together these varied strains of our American experience. Institutional demands and forces quite different from those in the marketplace of commerce are necessary to hold the America we have come to love together. It is our commitment as a nation to the rule of law that weaves us together, in a tapestry of civic faith.
If our new leaders forsake that understanding by failing to honor our commitment to the rule of law, by eschewing in the earliest days of their collective responsibility to hold true to our decision to entrust them with the keys to our democracy, then there is indeed much to worry about. We as Americans, bound together by our common devotion to the institutions that connect us under the rule of law, must be vigilant to ensure that we are not imperiled by cavalier attitude toward our most fundamental of principles.
These times are fraught with peril. Failing to adhere to strictures imposed by legal requirements can deliver a moral blow that threatens our American exceptionalism.
Benjamin Franklin’s oft-quoted answer of “a republic, if you can keep it,” when asked about the form of government the Framers created in Philadelphia, remains just as relevant today as it was two centuries ago. And if the rule of law at the heart of our experiment is ignored, perhaps it doesn’t matter whether we could keep it.
The better question may be, are we up to it?
Luke Bierman is dean and professor of law at Elon University School of Law in Greensboro, North Carolina.