A cornerstone of a liberal society is checking the government’s power before, during, and after it interacts with ordinary people. Let’s take an example of each to show you what a lack of these limits means in practice.
Before: Tony Tan is a San Jose software engineer. He’s attended protests and volunteered to document ICE activity in his city. With his background, he understands the value of privacy. Which is why he’s challenging the city’s use of automated license plate readers (ALPRs). In conjunction with the increasingly well-known surveillance services firm Flock Safety, the city has installed almost 500 ALPR cameras around the city. These devices take photos of license plates as cars drive past and upload them to a database where they’re stored for thirty days. Thousands of government workers around California can then access this data and with the help of AI can piece all the individual photos and locations together and recreate the daily movements of San Jose residents, including Tony’s. It’s a real-life panopticon with few rules—and no warrants—governing its use. Before the city has even come into contact with Tony it already knows where he’s gone and what his daily habits are.
During: In 2016, Joe and Russell Marino were running their family’s fourth-generation farm in southern New Jersey when U.S. Department of Labor agents hand-delivered them a citation for $550,000. The fines overwhelmingly related to paperwork violations for their seasonal workers who were fully paid and taken care of. But the reason the U.S. Supreme Court will hear their case this November is not to figure out whether the fines are legitimate or even whether they’re unconstitutionally excessive. It’s to determine whether they have the right to an impartial court to decide that question while they are defending themselves. The “court” they were forced to go through, and which ruled against them below, is itself part of the Department of Labor.
After: Early one morning in her Sandy Springs, Georgia, home, Cathy George heard police banging on her door. Moments later she saw guns directed at her after confusedly letting the officers in. She then helplessly stood nearly naked in the hallway while they ransacked her place, exclaiming they were looking for a man she had never heard of. After a while they admitted he wasn’t in her place. That’s because this man not only had no connection to her but had already been apprehended four months earlier. Negligently not checking the facts, they not only raided the wrong home but tried to find someone who had already been found. Cathy is clearly in the right. So what did the authorities do to compensate her? Nothing. She’s suing for damages and the government claims it has immunity.
In each of these scenarios, many things aren’t working, but one is above all others: the rule of law. The rule of law can be a bit abstract to get a handle on. But in these before, during, and after situations, we can see it concretely. For Tony Tan, it’s the safeguard of a warrant. His local police—not to mention thousands of other people across California—shouldn’t have unbridled discretion to know everywhere we travel without an outside check. That traditionally has come in the form of a warrant approved by an impartial judge. For the Marinos, the rule of law manifests itself as a court that isn’t tied to the very same entity prosecuting them. At a minimum, an impartial trial means the judge doesn’t have the same boss as the prosecutor. And for Cathy George, it’s a chance to have a day in court where the government will be forced to compensate her for the wrong it does not deny it caused. The officers who wrongly tore apart her home will not be above the law but beholden to it.
Each of these situations is a bit different. Similar “before, during, and after” examples would have their own nuances. What ties them all together, though, is an outside check on the state’s power (1) when it prepares to use that power, (2) while it uses it, and (3) after the use is over.
Rights Aren’t Everything
An impartial judiciary—what is often called an “independent” judiciary—is one piece of the bigger puzzle of the rule of law. For years my colleagues and I at the Institute for Justice have advocated that judges should not be afraid to impartially enforce the law against the government. IJ is a public interest law firm and most of what we do is sue the government—federal, state, and local—when it violates people’s rights. We’ve generally done this through championing individual rights that we’ve grouped as “pillars”: free speech, property rights, and economic liberty.
All the while we have seen ourselves as advancing the rule of law. Our philosophy has been that judges cannot simply defer to what our legislative and executive branches want to do. Exercising their duty to say what the law is will further not only the individual rights we specialize in advancing, but a free society that also embodies the rule of law itself.
In the United States, with our system of written constitutions and “higher law constitutionalism,” this often manifests itself through a judge ruling a law is “unconstitutional.” And that has been most of IJ’s work, challenging what we argue are unconstitutional barriers to people pursuing the American Dream, such as earning a living, living in their own home, or speaking out in the public square. But judges checking the government doesn’t have to invoke the glamour of the Constitution. It often functions at a much more basic level where a statute is clear and yet it’s just not being followed. We’ve taken many cases like that too as they intersect with specific liberties. For example, we’ve represented innocent victims of civil forfeiture where police operated outside the law when seizing our clients’ property and trying to keep it for their own departments’ budgets.
In recent years, though, my colleagues have been representing more people like Tony, the Marino brothers, and Cathy. They all have individual liberties that IJ is trying to protect, such as Tony’s Fourth Amendment right to be secure. Yet their stories point toward a shared value greater than the sum of those liberties. Therefore, after seeing so many people ensnared in systems of unaccountable surveillance, or tangled up with self-interested prosecutors and judges, or holding the bag after officials break down their door and are offered no compensation, we’ve reconceptualized some of our work. It’s led us to group a branch of our efforts as not just about the specific liberties we’ve been fighting to protect for decades, but something even broader. That’s why we recently launched a new “Rule of Law” pillar to better focus and highlight these efforts.
The Rule of Law is Big. Really Big.
No one act of Congress, no one lawsuit, and no one organization can comprehensively protect the rule of law. Indeed, what rule of law simply means engenders serial debate among the most enlightened philosophers. Even individual thinkers have changed their minds on that question. Just one example is Friedrich Hayek. At one time, in his The Constitution of Liberty, he placed great emphasis on the preannouncement of legal rules and their general applicability as satisfying the rule of law. Later, however, in Law, Legislation and Liberty, he moved toward a need for laws to be made organically through a common law process. Go beyond Hayek and you will find a never-ending set of essays with their own takes on what is, and what isn’t, the rule of law.
All that being said, there is wide agreement on what constitutes at least the core of the rule of law. I wrote at greater length on what that core is in this essay. To briefly summarize here, the rule of law demands that laws apply generally to everyone, that they be enacted and made public before being enforced, that the society within which the rule of law operates respects freedom of speech and conducts free elections, and that there be checks and balances within the government regulating its exercise of powers. That’s not meant to be a definition but I submit it is a description that is hard to fully disagree with.
All of the criteria in that description are important but it’s the last that we at IJ are most concerned with in our new focus. Different people—not one executive or one legislative body—need to do the making, enforcing, and adjudication of laws. And those different people should be questioning—not rubber-stamping—each other as to whether the law is being followed. For example, when a judge reviews a warrant application, they shouldn’t approve it just because the police asked for it.
When these checks and balances are ignored there are, of course, fewer checks. The potential for abuse and injustice inevitably goes up. Enforcing those checks is a core of the liberal tradition, championed by everyone from Montesquieu to Justice Antonin Scalia.
Guarding Against the Guardians
What does this mean in the context of Flock surveillance, agency courts, and consequence-free police misbehavior? It means someone has not guarded against the guardians. An impartial judiciary that can check what the rest of the government is about to do, is doing, or has done helps keep it within the bounds of the law. Without it the rule of law decays—or falls altogether.
The rule of law has all kinds of problems in today’s world. Much of what we see in the news every day that relates to a lack of the rule of law involves world leaders, national elections, and even armies on the move. But the lack of the rule of law also manifests itself in ordinary people simply trying to live their lives. It’s our hope at the Institute for Justice that by continuing to fight for clients like Tony, the Marinos, and Cathy while organizing them within a wider “rule of law” pillar, we can advance an impartial judiciary and the larger rule of law that ordinary people like them need. It’s a small part of a larger struggle for protecting our liberal society. But we think it’s a necessary one. And we invite you to check out our efforts and join us.
