Are we losing the rule of law?

Especially since Jan. 6, 2021, talk of “saving democracy” is everywhere.

There are, however, several serious threats to our democratic form of government that aren’t quite as glaring as American citizens storming the capital. There’s the vast administrative state. The over-regulation of everything from Washington. Suspicion over the integrity of our elections. A $32 trillion national debt. But the most immediate danger to our liberty as a republic is the erosion of the rule of law, the only guarantor of political equality.

We see it daily and dramatically in neighborhood shoplifting. Several states have downgraded theft of goods under $1,000 from a felony to a misdemeanor, signaling that store merchandise is, with potentially minor inconvenience, free for the taking. Drugstore pocketing quickly became outright pillaging and organized smash-and-grabs from high-end stores and large retailers. Businesses have closed, seeing no protection for their wares and no hope for profit.

Foolish laws that allow this sort of anarchy aside, the rule of law has three fundamental features.

We see this in a failure to faithfully prosecute the law. District attorneys overlook crimes that don’t affect them in their privileged lives but devastate ordinary people on the street. For example, Alvin Bragg in Manhattan and George Gascón in Los Angeles stopped prosecuting lower-level crimes, including drug possession, turnstile jumping, and prostitution, and even resisting arrest, in the name of their own notions of equity and social justice. Illegality became no bar to criminal misbehavior.

On a national level, we see government-sanctioned lawlessness on our open southern border. There are apparently two ways to enter the country: the legal, arduous way and the never-mind-the-law, walk-right-in way. Though most of these migrants are honest people fleeing terrible hardship, the deluge—aside from being lawless—has poisoned communities across the country with violent crime and deadly drugs.

We see a danger to democracy in the unequal enforcement of the law. Federal agencies like the FBI and the IRS have been used by partisan interests to target politically disfavored groups. For example, according to the group Catholic Vote, there have been only two arrests out of more than 80 incidents of vandals who have terrorized crisis pregnancy centers since the leak of the Dobbs decision. But the misdeeds of government agencies are not limited only to sins of omission. The Biden Justice Department sent the full force of the law against a pro-life protester who scuffled with an aggressive clinic escort near an abortion facility. Guns and battering rams before dawn at his family home. The Obama administration used the IRS to target conservative organizations.

The government should be protecting our liberty, not punishing the way we lawfully exercise it. It is especially important that the FBI be above suspicion of abusing its power and influence for partisan purposes.

A threat to democracy also looms in the impartial adjudication of the law. After George Floyd’s death under the knee of a Minneapolis police officer, a mob response to any police shooting became ordinary and accepted. Still greater violence was threatened if the courts or police investigations did not bring the “right” decision. The mob knows. The mob is righteous. The mob rules. There have been no prosecutions or even any arrests of people who protested last summer, in violation of federal law, outside the homes of the Supreme Court justices who voted to strike down Roe v. Wade. Indeed, the picketing continues.

If the law is not for all, it is not law.

God rules His creation by law. The Apostle John writes that “sin is lawlessness” (I John 3:4). God gave His kingdom a law for its good government. So governments that serve as God’s ministers for good, whether they acknowledge it not, should govern by law. As God is not a respecter of persons, this law must be applied equally to all by disinterested judges. The rule of law, then, entails both equality before the law and equal protection of the law.

America was founded by people shaped by and steeped in this Biblical tradition. John Adams said the revolution was fighting for “a government of laws and not of men.” When laws no longer govern or when they are partial to one side or one faction, when party preference or social bias pushes the hand of justice one way or another, when Lady Justice peaks beneath her blindfold before rendering her judgment, government has become tyranny, a tool used by some for their advantage over others.

The heart of democracy is political equality and the great guarantee of it is the rule of law. Selective law enforcement in pursuit of policy goals undermines democracy—what Abraham Lincoln called government of the people, by the people, and for the people. The loser is always democracy—and that means all the people.