Santa Clara Law Review Volume 61 Number 2 Article 3 6-3-2021 The Rule of Law: A Necessary Pillar of Free and Democratic Societies for Protecting Human Rights Bessler, John D. Follow this and additional works at: https://digitalcommons.law.scu.edu/lawreview Part of the Law Commons Recommended Citation John D. Bessler, The Rule of Law: A Necessary Pillar of Free and Democratic Societies for Protecting Human Rights, 61 SANTA CLARA L. REV. 467 (2021). This Article is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion in Santa Clara Law Review by an authorized editor of Santa Clara Law Digital Commons. For more information, please contact [email protected]. THE RULE OF LAW: A NECESSARY PILLAR OF FREE AND DEMOCRATIC SOCIETIES FOR PROTECTING HUMAN RIGHTS John D. Bessler* This essay traces the history and development of the concept of the Rule of Law from ancient times through the present. It describes the elements of the Rule of Law and its importance to the protection of human rights in a variety of contexts, including under domestic and international law. From ancient Greece and Rome to the Enlightenment, and from the American and French Revolutions to modern times, the Rule of Law has played a key role in societies around the world. The essay discusses definitions of the Rule of Law, its origins, and its development over time, including in Europe, America’s founding period, and the post–World War II era. In particular, the essay discusses the intellectual contributions of historical figures such as the Italian criminal-law theorist Cesare Beccaria, the French jurist, Baron de Montesquieu, and American revolutionaries who played major roles in laying the now centuries-old foundation for the development of the modern-day Rule of Law concept (i.e., in drafting early American constitutions and laws, including the U.S. Constitution and its Bill of Rights). The essay explores a wide range of topics, from the creation of the United Nations and the ratification of international conventions and human rights treaties, to the adoption of South Africa’s post–apartheid constitution, to Donald Trump’s continuous and systematic assault on the Rule of Law, human rights, and democratic institutions and norms. The essay also highlights the Rule of Law’s symbiotic relationship to the protection of fundamental human rights such as the rights to equality, to vote, and to be free from discrimination, cruelty and torture. Arguing that various Trump Administration acts and policies (e.g., separating children from their parents at the U.S.-Mexico border and the death penalty’s use) and the outrageous and brazen efforts of Donald Trump and his campaign and allies to discriminate against and disenfranchise * Professor of Law, University of Baltimore School of Law; Adjunct Professor, Georgetown University Law Center. 467 468 SANTA CLARA LAW REVIEW [Vol:61 voters violate core Rule of Law principles, the essay concludes by emphasizing the Rule of Law’s continuing and critical importance to the protection of civil liberties and fundamental human rights in the twenty- first century. TABLE OF CONTENTS I. Introduction ............................................................................. 469 II. The “Rule of Law” Concept .................................................... 481 III. The Ancient Origins of the Rule of Law, and Its Importance Through History ................................................... 488 IV. The Role of the American Revolution .................................... 499 V. From the Enlightenment to Modern Conceptions of the Rule of Law ....................................................................... 510 VI. The Universal Declaration of Human Rights and Equal Protection of the Laws ............................................................ 525 VII. Tyrannical Rule and Abuses of Power vs. the Rule of Law ... 540 VIII. The Rule of Law’s Importance to Safeguarding Civil Liberties and Human Rights .................................................... 559 IX. The Death Penalty as the Ultimate Violation of the Rule of Law ............................................................................. 565 X. Hindsight and a Crystal Ball: The Past and Future of the Rule of Law ............................................................................. 578 XI. Conclusion ............................................................................... 585 2021] THE RULE OF LAW 469 I. INTRODUCTION Donald Trump and his administration routinely violated people’s human rights,1 including those of asylum seekers,2 refugees,3 minorities,4 and migrant parents and their children at the U.S.-Mexico border.5 In the 2020 presidential election, Donald Trump’s failed but 1. See, e.g., Linda Greenhouse, Opinion, Four Years of the Trump Administration in Court. One Word Stuck in My Head., N.Y. TIMES (Nov. 19, 2020), https://www.nytimes.com/2020/11/19/opinion/trump-policy-mean.html (“During four years struggling to keep up with the flood of court cases challenging the refusal by various Trump administration officials to follow the law, a word has come to mind so often that I can’t shake it. It’s the word ‘mean.’ There’s a meanness to the man and to the policies issued from the sycophantic bubble that passes for his administration.”); Jasmine Aguilera, Judge Requires the Government to Explain Why Undisclosed Data on Missing Separated Parents Was Not Provided Sooner, TIME (Dec. 3, 2020, 6:30 PM), https://time.com/5917728/separated- families-border-data-government/ (“A federal judge is now requiring the government to provide an explanation as to why data on missing separated parents was not disclosed at an earlier date. The data includes phone numbers and addresses that could help locate some of the more than 600 parents who have still not been found after they were separated from their children at the southern U.S Border between 2017 and 2018.”); Bill Frelick, The Trump Administration’s Final Insult and Injury to Refugees, HUM. RTS. WATCH (Dec. 11, 2020, 6:00 AM), https://www.hrw.org/news/2020/12/11/trump-administrations-final-insult-and-injury- refugees (“The administration of US President Donald Trump chose Human Rights Day— December 10—to finalize what has come to be known as its ‘death to asylum’ rule . Now scheduled to go into effect on January 10, the rule creates insurmountable procedural barriers, evidentiary burdens, and qualification standards to prevent three groups, especially, from being able to exercise their right to seek and enjoy asylum in the United States: Central Americans fleeing gang violence; women and others fleeing domestic abuse; and people fleeing persecution on the basis of sexual orientation or gender identity.”). 2. See Rebecca Rainey, Trump issues sweeping new curbs on asylum eligibility, POLITICO (Dec. 10, 2020, 4:21 PM), https://www.politico.com/news/2020/12/10/trump- issues-sweeping-new-curbs-on-asylum-eligibility-444429. 3. See, e.g., Reuters Staff, Trump administration sets record low limit for new U.S. Refugees, REUTERS (Oct. 28, 2020, 5:31 AM), https://www.reuters.com/article/us-usa- immigration-refugees/trump-administration-sets-record-low-limit-for-new-u-s-refugees- idUSKBN27D1TS (“The Trump administration has slashed the number of refugees it will allow to resettle in the United States in the coming year, capping the number at 15,000, a record low in the history of the country’s modern refugee program.”). 4. See Press Release, NAACP, NAACP Sues President Trump For Systematically Trying To Disenfranchise Black Voters (Dec. 22, 2020), https://naacp.org/latest/naacp-sues- president-trump-for-systematically-trying-to-disenfranchise-black-voters/ (quoting Derrick Johnson, the NAACP’s president, as saying, “President Trump and his allies have repeatedly and unsuccessfully tried to overturn the 2020 presidential election results and undermine confidence in our democracy. Across the country—from Detroit to Milwaukee, and Atlanta to Philadelphia—they have targeted areas with large numbers of Black voters and made baseless, racist claims to attempt to not count their votes.”). 5. Emily Cohodes et al., Opinion, Op-Ed: The crime against migrant children that Biden needs to repair, L.A. TIMES (Dec. 8, 2020, 3:00 AM), https://www.latimes.com/opinion/story/2020-12-08/immigration-family-separation-policy- trump-administration (“More than 5,400 children have been detained and separated from their parents at the U.S.-Mexico border by the Trump administration since 2017. Many families remain separated, and the violence of this policy has been compounded by the government’s failure to keep track of the families it tore apart as it sent children to shelters all over the 470 SANTA CLARA LAW REVIEW [Vol:61 systematic, anti–democratic efforts to disenfranchise voters,6 including even after the November 3rd election,7 only confirmed Donald Trump’s total disdain for individual rights and the Rule of Law.8 Notoriously, on January 2, 2021, in a recorded, hour-long telephone call with Brad Raffensperger, Georgia’s Republican Secretary of State, Trump brazenly threatened him and his lawyer with criminal prosecution and demanded that he “find 11,780 votes.”9 country and then deported their parents.”); Daniel Gonzalez, 628 parents of separated children are still missing. Here’s why immigrant advocates can’t find them., USA TODAY (Dec. 11, 2020, 1:52 PM), https://www.usatoday.com/story/news/nation/2020/12/11/immigrant-advocates-cant-locate- parents-separated-border-children/3896940001/