“Timid people prefer the calm of despotism to the tempestuous sea of liberty.”
Thomas Jefferson wrote those words in 1797 expressing concern about the direction in which American politics was heading. He criticized government officials who were more interested in maintaining power and their public sinecures than serving people and the national interest.
Jefferson warned that privileged influential people were unfairly benefiting from financial dealings with the government, and that a growing Anglophile-monarchist-aristocratic self-interested faction was trying to restore the British monarchy’s system of favoritism, exploitation, coercion and corruption that he had listed in the Declaration of Independence as the 27 root causes of the American Revolution.
In his mind, the American people had gone to sleep while opponents of liberty bound them down with “lilliputian ties.” However, as Jefferson hoped, the American Gulliver awoke, broke free, and to this day continues through good times and bad mapping its uncharted progress as the first and longest lasting republic in history that is based on democratic principles.
Without doubt that is because the founders anticipated the need to stymie government officials when they exceeded their constitutional authority.
In Federalist No. 10, James Madison explained that political factions inevitably would vie to serve their own purposes rather than the common good. That is the reason the Constitution separated powers among the three branches of the federal government and the concurrent state sovereigns.
Other countervailing structural bulwarks and the Bill of Rights were designed to check and balance the exercise of power and hold government accountable to the ultimate American sovereign, we the people.
Federalist No. 51, penned by either Madison or Hamilton, eloquently argued that given human nature such devices were necessary to control the abuses of government power: “If people were angels, no government would be necessary. If angels were to govern people, neither external nor internal controls on government would be necessary...”
Democracy is neither simple, convenient, efficient nor expedient, and it usually is messy. The U.S. Constitution, including the Bill of Rights was, is now, and will be for as long as it lasts, the controlling framework of government.
It is a complex, imperfect, intentionally unfinished symphonic masterpiece of an orchestral score for all of America’s different constituencies to play their parts.
The Rule of Law established by the Constitution is the one thing all of us have in common. It is what makes each and all of us Americans.
Maintaining the constitutional safeguards for the rule of law is harder than passively accepting plausible rationales or devil’s bargains for abandoning them, or slumbering like a real-life Gulliver, while democracy is torn down piece by piece.
Yet it is worth the effort, because democracy once lost is enormously difficult if not nearly impossible to restore.
According to Steve Levitsky’s and Daniel Ziblatt’s book, “How Democracies Die,” the four key indicators for identifying and combating authoritarian behavior are rejection or weak adherence to democratic legal rules, denial of the legitimacy of political opponents, toleration or encouragement of violence and curtailment of civil liberties of opponents, including the media.
We have learned this because, since the ratification of the U.S. Constitution, many democracies which followed our lead have crumbled slowly rather than overnight. Eventually they were replaced by some form of dictatorial rule.
That happened, in Italy, Germany, Venezuela, China, India, Russia, Turkey, and Iran for example.
Securing and maintaining some authoritarian control follows a familiar playbook: ignoring constitutional limitations and norms; using executive power to squelch criticism and dissent; weakening the judiciary; curtailing and censoring the press, media and educational institutions and the arts; using government power to intimidate, punish and retaliate against adversaries, forcing conformity to dogma and targeting scapegoats and victims of bigotry.
On a brighter side, just as the U.S. has overcome serious threats such as the rise of McCarthyism in the 1950s, other countries have survived serious threats to freedom and justice, including Belgium, Britain, Costa Rico and Finland.
Moreover, mercifully we have not descended into the hell of the worst authoritarian regimes where political opponents and outcasts are imprisoned and murdered and newspapers and communications channels are shut down with journalists being abused or worse.
But we can feel the heat from here. The future of democracy is not yet set indelibly. Rather, it is in our hands to write and revise before it becomes history.
For starters, the concept of the rule of law is so generally regarded as an indispensable foundation of democracy that might be assumed to be self-evident and can be taken for granted. Neither are correct.
We must do more to explain its meaning, purpose and importance and guard against those who would misappropriate it to justify ruling by illegal orders and authoritarian rules.
The World Justice Project, currently led by University of South Carolina Law School Dean and former American Bar Association President William Hubbard, defines the rule of law as a durable system of laws, institutions, norms and community commitment that delivers four universal principles: accountability, just law, open government and accessible and impartial justice.
Contributing to the effort to sustain democracy does not require engaging in every good fight and winning all the battles.
Each volunteer can prioritize and take on even just one of the most clear-cut and pressing wrongs to attack, such as if a public official were to say it is illegal to criticize them or threatens to punish journalists, entertainers, lawyers and judges who are disliked.
In Jacksonville, you may recommend to people that they can learn more about our founding principles and values by visiting the new first in the nation display of the ABA traveling exhibit at the JU College of Law on the history and continuing relevance of the Declaration of Independence.
It is worth visiting and seeing this informative and interesting presentation about the Declaration, which was signed by as many as 34 courageous lawyers as that founding document approaches its 250th anniversary next year.
There is an urgent need for more legal educators and lawyers to be drum majors for justice and the rule of law.
They can step into this role by mustering the courage and commitment to teach, uphold and defend our constitutional democracy.
This is not partisan. It is professional duty and civic responsibility.
In the recent words to our Jacksonville law students of the longest serving federal appellate court judge in America, Gerald Tjoflat of the 11th Circuit Court of Appeals, who was appointed to the bench first by President Nixon and then by President Ford, said “My job, and the lawyer’s job, is not about politics. It is about reading the law and applying the facts to the law.”