LAW DAY: Rule of Law Underpins Contemporary Issues

By 
Scott Stewart
The Daily Record

This Law Day, we’re asked to reflect upon the the rule of law in our society. The Omaha Bar Association’s theme, “Celebrating the Rule of Law in Our Country,” and the American Bar Association’s theme, “Advancing the Rule of Law Now,” both invite us to explore the concept of the rule of law and its role in society.

The rule of law is one of those foundational concepts that becomes hard to define precisely while also encompassing what’s meant in everyday use. It’s similar to how we talk about the United States as being a democracy when a political scientist might quibble and say we’re a constitutional republic. (Canada is a constitutional monarchy, but that doesn’t make it less democratic.)

The World Justice Project offers a framework for understanding and analyzing the rule of law internationally.

The nongovernmental organization founded in 2006 as a presidential initiative of the American Bar Association outlines four universal principles that defines the rule of laws as “a durable system of laws, institutions, norms, and community commitment that delivers accountability, just laws, open government and accessible justice.”

In essence, the rule of law is the notion that an agreed-upon set of rules will be followed instead of the edicts of a particular person or cabal — a government of laws, not people. But to put such an institution into practice requires upholding that ideal. Like any other human endeavor, the effort to uphold the rule of law sometimes falls short — whether in practice, say through corruption, or in principle, say through intentionally not enforcing the law.

The rule of law provides a foundation for justice, but it doesn’t necessarily guarantee it. The law, of course, can be used in reprehensible ways, just as it can be used to redress grievances.

Slavery, genocide and other crimes against humanity take place within legal structures, and efforts to advance the cause of liberty and justice sometimes — really, all too often — are deemed unlawful. Right now, we’re seeing laws being advanced that target protesters in the wake of last summer’s Black Live Matter demonstrations; Iowa killed such a bill this session, but North Dakota, South Dakota, Oklahoma and Tennessee have passed new laws, according to the American Civil Liberties Union.

On the other hand, we can point to numerous examples of the advancement of freedoms taking place through legal means — whether that’s the expansion of LGBTQ rights through judicial action or the ratification of the 19th Amendment, even if the Equal Rights Amendment has continued to fall just short of adoption.

The rule of law provides the basis for freedom of expression and of the press, which enables us to have this discussion, or for groups like the OBA to hold gatherings of its members.

• • •

President Dwight D. Eisenhower famously said, “The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.”

Eisenhower proclaimed the first Law Day in 1958, referring to the totalitarianism that led to World War II as an example of what happens without the rule of law.

The rule of law ebbs and flows. While it’s foundational to our society, it’s not necessarily bedrock. It’s up to each generation, each citizen, to ensure that the rule of law continues to be upheld. Where it’s slipped or absent, it needs to be advanced. Where it’s established, it needs to be preserved.

What’s the alternative? Trent Tanner, co-president of the Nebraska Chapter of the Federalist Society, told The Daily Record that when the rule of law isn’t present, “the consequences of citizens’ actions depend on the whims and vagaries of government officials and bureaucrats, instead of on the fair and objective application of just laws.”

“Freedom and agency suffer, and with them human prosperity,” Tanner said in an emailed statement.“This is why Lady Justice, in courthouse statutes around the world, is so often depicted wearing a blindfold: if her scales tip against me or her sword falls on my head, it is probably because I violated the law rather than because she didn’t like the color of my skin, the religious garb I wear, the political party I belong to, or how little money I could offer to pay her.”

In contrast, societies with the rule of law provide an avenue for the advancement of freedom and for the creation of a more just society.

Danielle Conrad, executive director of the ACLU of Nebraska, told The Daily Record that her organization fights “for equal treatment under the law for those who are most denied that promise, including those who express unpopular viewpoints, those who seek the freedom to exercise their religion free of government interference, those who seek equal treatment from the courts and those who seek equal access to our great public schools.”

“There was a time when, more often than not and when it mattered most, Nebraska’s attorneys general, secretaries of state, governors and state senators put integrity and respect for the rule of law above cynical self-interest, partisan shenanigans or shifting political winds. Instead, they wielded their power and made difficult choices in the public good while respecting the rights of those in the minority. If we want our children and grandchildren to grow up in a thriving democracy, we must each commit and recommit to embodying these proud traditions in our daily practice and daily lives,” Conrad said in an emailed statement.

That work wouldn’t happen without the rule of law. Nor would efforts to bolster minority rights, address racism and seek a better America for all — regardless of who they are.

Creighton University School of Law student Traemon Anderson, president of the Black Law Student Association, told The Daily Record that the rule of law can be seen in the Supreme Court decisions in Dred Scott v. Sandford (1857) and Brown v. Board of Education (1954)

“In Dred Scott, the U.S. Supreme Court ruled that all African Americans, whether free or slaves, were not American citizens and thus could not sue in federal court,” Anderson said in an emailed statement. “The court’s opinion further condemned African Americans as property and solidified the rights of slaveowners to be constitutionally protected. This case displays the outright disregard for African American’s lives and the lack of protection extended by the Rule of Law under the Fourteenth Amendment. In Brown v. Board of Education, the U.S. Supreme Court ruled unanimously that the doctrine of separate but equal unequivocally violated the U.S. Constitution. This case showed the growth of American society and the justice system, along with displaying the recognition of African Americans’ protection under the constitution. The Rule of Law is a powerful tool that allows us to hold our society and governmental actors accountable and protects minorities’ rights as we move forward.”

• • •

Earlier this year, our nation witnessed a moment that quickly resonated as historic — and perhaps horrific, depending on your political perspective.

The Jan. 6 insurrection at the U.S. Capitol made real the worries of some pundits and other  observers that President Donald Trump might attempt a coup to retain power after he lost an election that Republican and Democratic election officials certified as valid and that courts have refused to overturn citing a lack of evidence of alleged widespread fraud.

Those rioters who stormed the Capitol, seeking to stop the counting of electoral votes, were “fed lies,” according to Senate Republican leader Mitch McConnell, who rebuked the attack.

“They were provoked by the president and other powerful people, and they tried to use fear and violence to stop a specific proceeding of a branch of the federal government,” McConnell said, according to The Associated Press.

The Jan. 6 insurrection could have been a crossing of the Rubicon, especially had the rioters been successful in their aim. But Congress stepped up to the challenge, ratifying the results of the election. Trump still continues to be dismissive of the election results, but he didn’t attempt to remain in power. There was no eviction necessary from the White House.

Still, the prospect that could have been necessary is shocking. Conspiracy theories remain, and the legacy of that moment likely will be felt for some time yet in American history. Notably, there are still people out there participating in the QAnon belief system.

As we continue to address other challenges in our country — mass shootings, racism, health care, economic inequality, immigration, terrorism and many others — we can expect that the division over the 2020 election will continue to resurface.

Some progressives still feel the wounds of the 2000 election. While Al Gore contested those results, he ultimately accepted the Supreme Court’s decision. He didn’t set up a government in exile. He didn’t attempt to undermine confidence in the U.S., even though studies suggest more people in Florida went to the polls to vote for Gore than they did George W. Bush.

In Bush v. Gore, the per curiam opinion stated, “None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution’s design to leave the selection of the President to the people, through their legislatures, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.”

Elections have hitherto been resolved through the rule of law, and in 2020 they continued that tradition. But there were clearly those who would have preferred otherwise. That’s why this year’s Law Day theme is critical. We all have a duty to uphold the rule of law.

• • •

This special edition of The Daily Record explores the theme of the rule of law from a variety of perspectives. We offer reflections upon the theme itself from many members of the legal community on Page 8B, and you can read a longer Law Day reflection from OBA President David J. Koukol in the “regular paper” on Page 2A.

We explore international trends in the Rule of Law, as well as the United States’ steady decline in global rankings, on Page 9B. If you’re interested in seeing the full rankings from the World Justice Project, you can find it at worldjusticeproject.org/rule-of-law-index.

Daily Record reporter Molly Ashford explores the topic of expanding the right to counsel for tenants facing evictions in a story on Page 10B. The lack of legal representation in civil matters can have just as devastating an impact on a person’s life as wrongful outcomes in criminal proceedings, so it’s unsurprising to see this issue being brought up in Nebraska, as it is elsewhere across the country.

In a story on how countries are responding to climate change (Page 12B), Daily Record contributor Elizabeth Elliott looks at how international negotiations rely upon the rule of law and how they ultimately require political power to achieve their goals. Elliott also explores the intersection of regulation and the rule of law (Page 13B), looking at the trade-offs between expertise in crafting regulations and the compliance complexities that they can create.

Back in our “regular paper” section, The Daily Record offers a trio of stories (Page 1A) that serve as a guide to how to use our publication. Newspapers such as ours, and the myriad other news outlets in the community, all serve an important role in keeping people informed, both through news stories and public notices. Those, in turn, enable people to be engaged in their community, advocate for change within the framework created by the rule of law, and — if we’re being honest — make some money by being plugged into what’s happening in the community around them. For a country to abide by the rule of law, communication is critical, and the news industry has an important role to play in its preservation, too.

Additionally, as part of our annual Law Day offerings, we preview today’s OBA Law Day luncheon (Page 1B) and recognize the recipients of the inaugural Laurie Smith Camp Integrity in Service Award (Page 3B), Robert M. Spire Public Service Award (Page 7B), OBA Public Service Award (Page 11B) and Alfred G. Ellick Lawyer Referral Service Award (Page 6B).

David Golbitz’s interview with Judi gaiashkibos, the inaugural recipient of the Smith Camp Award, is especially worth a read. The staff of The Daily Record lament Smith Camp’s passing, but it’s been heartening to see such an outpouring of support to preserve her legacy.

Additionally, we take a look at the book donation project organized in Smith Camp’s honor (Page 4B), remark upon the impending return of in-person events (Page 6B) and celebrate the winners of the Law Day poster contest (Page 14B) and essay contest (Page 15B), the latter of which members of The Daily Record editorial staff helped judge this year.

We hope that you enjoy this special edition. We look forward to seeing you — well, perhaps just your name — at the Law Day luncheon today. We also thank you for taking the time to join us in reflecting upon the importance of the rule of law — in our country, in our community and in our world — as we all strive to advance together into an uncertain future.

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