Protecting and Defending is Insufficient: Envisioning a More Equitable Rule of Law

The rule of law is one of the foundational principles of our democratic system. As evidenced by the Trump administration’s attacks on the independence of lawyers and judges, its refusal to comply with court orders, and its devastation of the civil administrative state, the rule of law is being threatened in unprecedented ways. In responding to these challenges, it is critical also to recognize that the rule of law has been instrumental in creating and perpetuating social, economic, and racial inequities in American society. In this light, it is perhaps not surprising that the current administration’s efforts to create an authoritarian government with power centralized in the executive are cloaked in assertions that it is defending and preserving the rule of law. In other words, the Trump administration does not see the rule of law as an obstacle or inconsistent with an authoritarian regime. To ensure that the current battle over the rule of law is not simply a means to preserve the status quo, we need to envision a rule of law that is not instrumental in perpetuating inequity, that is not able to be coopted to further authoritarianism, and that reflects the true democratic principles of our founding documents.