“Rule of Law” – Is it under Siege?

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This last year has seen surprising developments throughout the Western world. Probably none is more surprising than the changes that have been the consequences of the election of American President Donald Trump. His daily Tweets (his preferred means of communicating White House policy it would seem) are often confusing, contradictory, and,…, well…, frankly concerning. Like many, I have found many of President Trump’s pronouncements troubling. They demonstrate to any who have the most basic comprehension of the proper functioning of western democracies that he does not understand or appreciate the importance of basic constitutional norms. Like freedom of the press. Or worse, like rule of law.

On Wednesday, October 11, 2017, he stated to the reporters in the White House ““it’s frankly disgusting the way the press is able to write whatever they want to write, and people should look into it.” He had Tweeted earlier that day “With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!” The President of the United States attacking the very freedom of the press??? Suggesting that news agencies have their licenses revoked for the news that they broadcast???

When Donald Trump took the oath of office to become the President of the United States, “[he did solemnly swear (or affirm) that [he would] faithfully execute the Office of President of the United States, and [would] to the best of [his] Ability, preserve, protect and defend the Constitution of the United States” (changes made to switch to the third person singular and the past tense). “Preserve, protect and defend the Constitution of the United States”.
The last time I checked, one of the most important elements of the United States’ Constitution was expressed in the First Amendment. The First Amendment, enacted in 1791, states:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”

There are thousands of judicial decisions that have interpreted these words but it is fair to say that the First Amendment and the protection if offers to freedom of speech and of the press are reflected in the constitutional laws and principles underpinning western liberal democracies around the world. While nothing is absolute, freedom of the press and, specifically, the press’ freedom from governmental control or interference, is a key feature of any liberal democracy and that is the reason why it is embedded in the United States’ Constitution.

The President’s primary responsibility is to preserve, protect and defend the Constitution, not to erode, undermine and attack it. President Trump’s statements, whether made orally or in Tweets, show a blatant disrespect for this essential democratic constitutional rule respecting freedom of the press. However, it also underscores his failure to appreciate that, in so doing, he is also undermining the sacrosanct principle respecting the rule of law. When the President of the United States of America, arguably still the most powerful individual person in the world, can strike out at the very constitutional foundations of that country with apparent impunity, when he can assault the First Amendment in such a cavalier manner, we must all sit up in alarm.

Because what he is doing is saying that, notwithstanding the express words of the Constitution, notwithstanding his solemn oath to uphold that Constitution, he is above the law, the most fundamental law. He clearly believes that he can do this without consequence. So far, he has been able to do this with the only practical effect being that the press itself has shot back.

History has shown that when persons in power start to demonstrate open disregard for the law, and the people acquiesce and allow them to do so, the world becomes a far more dangerous place. We are fortunate that the United States’ Constitution has so many checks and balances that it will be harder for President Trump to carry out the sort of takeover of government that would allow for a more despotic form of governance. Nevertheless, the Western world, including the people of the United States, should not underestimate the vast array of powers that President Trump has at his disposal, both legally and practically. For instance, practically, he can take steps that will lead the United States (and likely other allied nations) into a war. (His bellicose remarks regarding The Rocketman of North Korea seem to indicate that this outcome is not beyond the realm of the possible.) So many steps taken and comments made by this President show that he has little respect for the judicial system, the legal rights of minorities, and basic constitutional principles. And when leaders show disrespect for the rule of law, the people start to lose respect for the rule of law. And if enough people lose respect for that concept, despotism can occur.

The defence of the principle of rule of law falls to all of us who are fortunate enough to live in societies where it is a foundational rule. We here in Canada must be vigilant to the dangers that the rule of law is facing in the Western world. We are not immune to the forces that have caused our southern neighbours to choose a leader who directly attacks the legal foundation of their country.

I remain

Constitutionally yours,

Arthur Grant

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2 thoughts on ““Rule of Law” – Is it under Siege?

  1. While I agree with Mr. Grant, I do not believe he states the case forcefully enough in respect of the danger Democracy faces. My own view is that we are now witnessing two parallel and increasingly related conflicts. The first, the obvious one, is between Democracy on one hand and authoritarian and especially dictatorial states and regimes. It is so blatant to contrast Canada, France, the UK, Germany, the Benelux and Nordic countries on one hand, versus Russia, Turkey, Venezuela and Egypt on the other, that the exercise induces no surprise. The first group is Democratic and observant of the rule of law (even though no country has a perfect record). The second list comprises states that practice neither Democracy nor the rule of law (though of course there are degrees of dictatorship). It is the second type of conflict, a more insidious one, on which we must shed clearer light. Inside some Democracies, such as for example the United States at the present time, there is a fundamental struggle between proponents of Democracy based on legality and its opponents, who favour political achievements and ideological results above all else, even to the detriment of the principles derived from the Constitution. Those who believe in @results@ at the expense of the rule of law may claim to be Democratic but if fact they no more understand the essence of Democracy than does President Trump. Democracy not only tolerates dissent but requires diversity of opinion. Democracy admits the free press, does not rely on meaningless sloganeering and aims at the public interest, not that of a small coterie of the wealthy and powerful. The line of distinction that runs through these factors is the view that dialogue, rational discourse and tolerance for the views and rights of others is more important than success and victory through raw power. The current President is interested only in winning. That is why he cannot understand Democracy and has no grasp of the US Constitution. This is a clear and present danger!

  2. As always, Mr. Tardi has stated his position forcefully and eloquently. I do not disagree that democracy is subject to great danger. I will disagree on one point, however, and this is only a point that varies by mere degrees, not wholesale opposition. Mr. Tardo states that “[d]emocracy … does not rely on meaningless sloganeering…” I would agree if he said “democracy should not rely on meaningless sloganeering…: But democracy, as practised in every modern democratic society, has and will likely continue to engage in sloganeering – much of it, frankly, so vague as to be meaningless. But the citizenry of such societies often form attachments to such slogans, frequently each person taking her own meaning from the slogan in question. Slogans such as “liberty” are no more meaningful than “Make America Great Again”. But the difference between Mr. Tardi’s statements and mine is, again, only one of degree. His statement that democracy is under attack converges with my concern that rule of law, a cornerstone of democratic life, is in jeopardy and that we must all be vigilant. Thank you Mr. Tardi.

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