Being an Advocate for Democracy and the Rule of Law

• Citation: Vol. 51 No. 1
• Year: 2025

Being an Advocate for Democracy and The Rule of Law Vol. 51 No. 1 Pg. 5 Vermont Bar Journal Spring 2025

by Joshua Diamond, Esq.

Being an Advocate for Democracy and The Rule of Law

I have been deeply concerned, like many of you, about the state of our democracy. The rule of law is a cornerstone of our democracy, and the actions by our federal government have brought the rule of law to a crisis point. This is not hyperbole. Our esteemed Chief Justice Paul Reiber reflected during his remarks at the Vermont Bar Association's Mid-Year Meeting that "it appears there is an effort in Washington, D.C., to destroy the public's faith in the courts, in our system of justice, in this country."^[1] Yet, diminishing respect for our independent judiciary and faith in the rule of law has been eroding for some time. We are not powerless to stop this dynamic. As lawyers we can help stem this tide and be an advocate for democracy and the rule of law.

The Rule of Law is Foundational to our Democracy.

The nexus between the rule of law and our democracy is reflected in the words of James Madison, written even as our Constitution was being drafted:

"If men were angels, no government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."^[2]

Our democracy operates when its representative government passes laws to govern its citizens. The rule of law ensures fidelity to the decisions of the people's representatives. The rule of law also prevents tyranny and absolute power by one person or even a branch of government. In the United States, this is accomplished by dividing power through the three co-equal branches of government. This "ensure[s] that no one person is able to gain absolute power and stand above the law."^[3] An essential component of the separation of powers is an independent judiciary. As United States Chief Justice Marshall (1755-1835) wrote in the seminal case of Marbury v. Madison, "[i]t is emphatically the province of the Judicial Department to say what the law is."^[4] The courts decide when the other branches of government exceed their authority or impermissibly invade the civil liberties of individuals.

Judicial independence is indispensable to the operation of the rule of law. Given the gravity of decision making by judges, it is an "absolute necessity of maintaining a judiciary not vulnerable to inappropriate influences."^[5] At the Virginia constitutional convention. Chief Justice Marshall said:

[The judge] has to pass between the government and the man whom that government is prosecuting—between the most powerful individual in the community, and the poorest and most unpopular. It is of the [foremost] importance that in the performance of these duties he should observe the utmost fairness. The judicial department comes home in its effects to every man's fire-side—it passes on his property, his reputation, his life, his all."^[6]

Marshall's principle is, of course, central to the functioning of the country today as it was when it was first enunciated. "This principle means that we treat people equally under law and how we treat others is not dependent on what party is in office or what individual or group is targeted for favored or disfavored treatment."^[7]

In addition to the independence of the judiciary, a critical component of the rule of law is consent by the governed and those who hold power. As President Eisenhower reflected after the seminal Brown v. Board of Education decision, "'the very basis of our individual rights and freedoms is the certainty that the President...will support and ensure the carrying...