When the founding fathers signed the US Constitution on September 17, 1787, they laid the foundations for a national government that was strong, but not omnipotent. The federal government was divided into three branches — executive, legislative, and judicial — and a series of checks and balances were created to ensure no single branch of federal power could assert dominance over the others. Powers not assigned to the federal government were left to the states, ensuring a degree of balance between federal and state authorities as well. Ultimately, these provisions aimed to ensure power would remain in the hands of the people of the US, and ultimately to protect the new nation from authoritarian rule.
In doing so, the constitution established the fundamental framework for the rule of law in the US, laying the foundations for democratic governance, and ensuring that all individuals and entities, including the government itself, are accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated.
Nearly a quarter of a millennium later, though the constitution remains the law of the land, Americans are losing confidence in its ability to protect the rule of law, according to a report released Tuesday by the World Justice Project (WJP). In US Rule of Law Trends & the 2024 Election, the WJP finds:
A majority of Americans view the current state of the rule of law in the United States negatively, despite their positive associations with the concept of rule of law itself. This dichotomy reflects growing concerns over the actual implementation and integrity of the rule of law in the country. While both Democrats and Republicans overwhelmingly agree on the critical importance of the rule of law for the future of the United States, its democracy, and their own lives, these shared beliefs mask deeper concerns about the erosion of government accountability and institutional trust.
Key Findings of the WJP 2024 Rule of Law Report
According to the WJP, respondents across the board felt the rule of law is both crucial and under threat. Unlike many of the trends tracked in the report, this contention evaded partisan lines, with upwards of 90% of Democrats and Republicans alike agreeing that the rule of law is critical to US democracy, the future of the country, and their own lives.
But since 2013, confidence in the key rule of law principle of public accountability has diminished.
Confidence that high-level officials will be held to account for breaking the law has dropped by 30 percentage points across voter demographics. Asked if they believed high-ranking officials would be held accountable for breaking the law, 37% of Democrats said yes, while only 30% of their Republican counterparts agreed.
Americans have likewise lost faith in the functionality of the Constitution’s systems of checks and balances. Asked whether they believed the other federal branches could effectively stop a president’s illegal conduct, only 63% of voters voiced confidence in Congress to do so, an increase from 52% in 2021, but a decrease compared to 76% in 2016. Asked the same about the courts, 68% voiced confidence, a slight increase since 2021 (65%), but a pronounced decrease since 2017 (84%). Confidence in the citizenry to hold a president to account, however, increased, from 30% in 2021 to 49% in 2024 — the highest figure since the WJP began tracking this issue in 2013.
The percentage of Americans who believe people must obey laws enacted by officials they did not vote for slightly increased, which the WJP interprets as a signal that the societal sense of civic responsibility is diminishing.
And public perception of the fairness of the US justice system and the news media have also dropped precipitously in recent years.
Combining decreased public trust in US institutions and the media’s reliability in reporting key developments with the apparently weakening sense of civic responsibility, many voters are approaching the upcoming presidential elections with a lack of confidence that they will be free and fair.
As explained in the report:
The legitimacy of the 2024 presidential election is … in question, with approximately one-third of respondents indicating they would not accept the election’s results if their preferred candidate does not win. This sentiment is particularly strong among Republicans, nearly half of whom say they would not accept the election results if the Democratic candidate wins. This points to a potential crisis of legitimacy that could undermine the stability of the electoral process.
These findings substantiate a growing body of evidence of American disillusionment in the rule of law. Pew Research Center has drawn similarly grim conclusions, writing last week: “Americans are unhappier and more divided than most [based on an international comparison] about the state of their democracy, and particularly gloomy about its prospects for improvement.” A July study by Pew revealed that nearly three-quarters of Americans believe the US used to be a good example of democracy, lighting the way for other countries to follow, but that it no longer is.
Differing Interpretations of the Rule of Law
A core problem seems to be that the rule of law itself has become a moving target in the US, with Republicans and Democrats at odds about what it means, and what its protections extend to.
As described above, while Americans are broadly gloomy on the state of the rule of law, their views diverge on specifics. This phenomenon has been particularly apparent in the criminal prosecution of Trump. After he was convicted on felony charges of issuing hush money payments earlier this year, a Reuters/IPSOS poll asked respondents whether they believed the prosecution upheld the rule of law. An overwhelming majority of Democrats — 89% — said it did. Nearly the same proportion of Republicans (87%) disagreed, opining the prosecution was mainly politically motivated and aimed at preventing Trump’s return to the White House.
Both parties refer to the imperative of upholding the rule of law in their 2024 platforms, but both cite different examples of what that would look like, and accuse the other of weakening the rule of law.
As stated in the Republican Party platform:
Republicans will offer a clear, precise, and USA oriented plan to stop the Radical Left Democrats’ Weaponization of Government and its Assault on American Liberty. We will restore Government of, by, and for the People, ensuring Accountability, protecting Individual Liberties, and fixing our once very corrupt Elections. We commit to upholding the Constitution of the United States, appointing judges who respect the rule of law, and defending the Rights of all Americans to Life, Liberty, and the Pursuit of Happiness.
Per the Democratic Party platform:
Trump refuses to defend core tenets of our democracy: the Constitution, the rule of law, our system of checks and balances. He still doesn’t accept the plain truth, upheld by scores of courts, that he lost in 2020, even describing himself as a “very proud election denier” – and he has never agreed to accept this year’s results. After years undermining public faith and confidence in our elections, he has warned of a “bloodbath” if he loses now. He lionizes the convicted criminals who perpetrated the January 6 attack on our Capitol and brave police, calling those insurrectionists “patriots” and “hostages” while promising to pardon them.
The parties specifically diverge on the state of the judiciary in their respective platforms, with Republicans arguing for the preservation of the status quo and Democrats urging reform.
The Republicans write:
We will maintain the Supreme Court as it was always meant to be, at 9 Justices. We will not allow the Democrat Party to increase this number, as they would like to do, by 4, 6, 8, 10, and even 12 Justices. We will block them at every turn.
The Democrats write:
The [Supreme] Court’s attack on a wide range of long-established American legal principles – from overturning Roe and eliminating the right to choose, to weakening voting rights and civil rights, to granting immunity for presidential crimes – in fact undermines the rule of law.
As Polarization Flourishes, the Rule of Law Dims
As we mark Constitution Day and Citizenship Day, these stark shifts in perception raise a critical question: Can the rule of law survive this level of polarization?
The Founding Fathers viewed the rule of law as a cornerstone of the new republic, embedding this principle deeply within the Constitution. They created a system of checks and balances, separated powers among three branches of government, and established due process rights to ensure that no individual or entity — including the government itself — would be above the law.
In today’s politically polarized climate, it is crucial to remember that the founders intended the rule of law to transcend partisan divisions, serving as a unifying force that binds the nation together under a common legal framework, regardless of political affiliation.
Both parties warn of the existential threat the other poses to the rule of law. Perhaps this in itself is the issue. This partisan approach to constitutional interpretation is evident even in official statements. For instance, in a presidential proclamation issued to honor Constitution and Citizenship Day, President Joe Biden emphasized his party’s platform:
I believe America is at an inflection point, one of those rare moments in history when the decisions we make now will determine the fate of our Nation and the world for decades to come. That is why we must continue to protect the rights guaranteed by our Constitution and the values that make our Nation who we are. We must protect the right to vote … We will continue to work to protect women’s reproductive freedoms and their constitutional right to choose. We continue to call on the Congress to restore the protections of Roe v. Wade in Federal law once and for all. And we will continue to preserve and strengthen our democracy and will never walk away from the values that have made us the greatest Nation in the history of the world: freedom and liberty.
We need to stop using the rule of law and our founding constitutional principles as justification for attacking the views of half our nation’s citizens. Rather than focusing on strengthening the partisan divide, our leaders need to address the erosion of faith in the rule of law.
To achieve this, several steps could be taken. Enhancing civic education, promoting bipartisan dialogue on constitutional principles, and increasing transparency in government processes could help bridge the partisan divide. Ultimately, for the constitutional principles underlying US rule of law to survive another quarter century, it is imperative that leaders on both sides of the aisle learn to prioritize the supremacy of the rule of law over inter-party squabbles.
