To be or not to be: America on the brink

Hamlet’s question, “To be, or not to be,” poses a timely existential question for America: “To be” for democracy under the rule of law; or “not to be,” to do nothing and allow the nation to commit political suicide. We have been led to the brink by a man so self-absorbed as to be insensible to the harm he has caused at the head of a political party that values victory above virtue, an equally power-obsessed opposition, and a public that waivers between placid indifference and a rabid desire for rapid change that they would willingly abandon the rule of law.

Although the phrase was not yet in common use, the principles embedded in the rule of law exist in many of our founding documents – The Virginia Declaration of Rights, The Declaration of Independence, The Constitution and “The Bill of Rights,” and many subsequent amendments to the Constitution.

Moreover, the Constitution Project has identified 115 out of 126 national constitutions that expressly include the rule of law as necessary to a free civil society

The outgoing administration has flagrantly ignored the essential premise of the rule of law that everyone is bound by the law. We know that this is an ideal of which we often fall short; the law does not always treat everyone equally. But today we are witnessing a disregard for this principle that far surpasses previous examples of government corruption in this country. From the president there is a call to overturn an election that has been certified fair and legal, and in the halls of Congress, the statehouses controlled by his party, and his grassroots supporters there is a near universal echo of approval. One can understand, perhaps even forgive the president’s supporters because they desperately want to believe that the man they put their faith in four years ago will yet save them. What none of us should forgive is the blatant repudiation of responsibility from those elected officials who care more about their political agendas than the people they serve.

Two forces are working to undermine obedience to the law: the quality of leadership and what the Founders called “factions.”

The Roman orator Cicero observed that a good public leader will “dedicate himself unreservedly to his country, without aiming at influence or power for himself; and will devote himself to the state … in such a way as to further the interests of all.” Where do we see such qualities in those legislators and chief executive that would suggest their commitment to the rule of law?

The second force jeopardizing the rule of law is “factions,” the extreme animosity between the major parties. Alexander Hamilton and James Madison understood the threat to democracy posed by political parties making this threat the subject of two of The Federalist Papers. While Hamilton held out hope that a strong central government would be “a barrier against domestic factions,” Madison correctly recognized that factions, motivated by impassioned common interests could threaten adversely the rights and interests of other citizens to the permanent detriment of all.

George Washington foresaw the dangers of political parties in his 1796 Farewell Address, observing that “[t]he alternate domination of one faction over another … is itself a frightful despotism. … The disorders and miseries, which result, gradually incline the minds of men to seek security and repose in the absolute power of an individual.”

So where does this leave us today? Our current president calls on governors, state legislators, members of the federal government, and even Justices of the Supreme Court to come to his aid in overturning what he continues to call a “rigged” election. Mr. President, please, read Cicero’s “Duties of the Individual to the State.” As for his misguided elected followers, please, remember your oath to uphold the Constitution and to honor your promises to your constituents.

​ We must all remember that the rule of law exists to protect our rights, but with these rights come responsibilities; and if you fail in your responsibilities to promote, protect, and stand up for the rule of law, there will be repercussions. We must choose “to be” rather than its alternative “not to be.” As John Adams warned in 1804, “There has never been a democracy yet that did not commit suicide.” For all the generations to come, let us work together to prove Adams wrong.

This "op-ed" was originally published in The Roanoke Times on December 20, 2020.  It was written by Timothy Isaacs, Executive Director of the Center for Teaching the Rule of Law, and John Koehler Co-Chair of the Lawyers’ Advisory Council at the Center. The views expressed therein are those of the authors.