Robert H. Henry and Sterling Knoche: We know it when we don’t see it

Justice Potter Stewart famously observed that although pornography is sometimes difficult to define, “I know it when I see it.” The rule of law can also be abstract, but most Americans know the rule of law when they see it. More precisely, they know it when they don’t see it. And as of late, they have not seen it.

Here in Washington and across the country we have seen attacks on the rule of law. These attacks threaten the rights of all citizens and the personal safety of our public servants.

Shaped by living under the whims of an oppressive monarch, our Constitution’s framer John Adams, the feisty country lawyer who molded the American republic, designed our country to be “a government of laws, and not men.”

Although precise definitions vary, the core of the rule of law is that everyone, especially the government, is bound by and entitled to the benefit of publicly made laws.

Lord Thomas Bingham, one of Britain’s most highly regarded jurists, described hallmarks of societies not governed by the rule of law: “The midnight knock on the door, the sudden disappearance, the show trial … the waging of aggressive war.” The existence of any one of these occurrences’ casts doubt on a country’s rule by law. Do any sound currently familiar?

Although the phrase has not been used, the horror many Americans have felt over recent events is the breakdown in our rule of law. Warrantless searches, masked agents, the lack of independent investigations, the denial of court hearings, the defiance of court orders, and the entire “justice” process being carried out summarily on the street.

We know it when we don’t see it.

But the rule of law is not a perpetual motion machine, it takes all people to maintain and uphold it. Yes, the law must have its guardians, the judges, and the United States was the first country to enact a constitution that sought to ensure the independence and impartiality of such judges by creating a judiciary as an equal and independent branch of its government.

The issue is not partisan. The key framers of our Constitution, James Madison of one political party, and Alexander Hamilton of the other, realized that this new branch, the judiciary, was left out when the strong powers were divided among the branches. Hamilton knew that the judiciary had neither “sword” nor “purse,” that is, neither the military of the executive branch, nor the budget of the legislative branch.

Hamilton’s point was that it was difficult for the judiciary to defend itself, especially when it is called upon to umpire one of the other branches. That call often comes, and over the past couple of decades there have been an increasing number of cries to dispense with, or even kill, the umpire. Those cries seem to occur mostly when an administration strikes out in court.

Here in Washington, Judge John Coughenour, appointed by Ronald Regan, received hundreds of death threats after ruling the Trump administration’s birthright citizenship executive order was unconstitutional. Over the past year, 400 federal judges were the targets of serious threats, an increase of 78% from four years ago, according to the U.S. Marshals Service.

This brings into play the other “people” involved in the rule of law. That “people” is us – all of us. For “we the people” established our Constitution, exchanging some of our rights for self-government, and a primary purpose, our forbearers proclaimed, was to “establish justice.”

When our courts rein in a president, or exhort a noncognizant Congress, they are applying the rule of law, but they have no sword or purse to enforce or defend their rulings. The decisions need citizen defenders. For “as citizens of this democracy, you are the rulers and the ruled, the law-givers and the law-abiding, the beginning and the end,” Adlai Stevenson reminded us during the Cold War.

When citizens serve on a jury, this dormant duty emerges, they realize that all of a sudden, they “become” the law. Citizens are the law-givers in their case, and they are guided by independent and impartial judges’ instructions, ensuring that the truth is sought, rights are honored, due process of law pursued, and most importantly, that all citizens, even the President himself, must follow the law.

We no longer have the privilege of dormancy, we must all work to ensure we continue to have “a government of laws, not men.”

Judge Robert H. Henry, of Seattle, served as chief judge of the U.S. Court of Appeals for the 10th Circuit, and attorney general of Oklahoma. Currently he is jurist-in-residence at the University of Washington School of Law and a member of Keep Our Republic’s Article III Coalition. Sterling Knoche, of Madison, Wisconsin, is counsel for Keep Our Republic.