The Rule of Law both as an abstraction and as practiced in the United States is suffering the worst possible fate.  It is being ignored.  It is being evaluated in the darkest recesses of the American soul and found wanting, but not openly debated in deliberative public forums where the process of discussing conflicting values and ideals can lead us to not only a collective standard, but to a deeper understanding of its importance.  If we are ever to find our way back to the America promised in the Constitution and the Declaration of Independence, we must immediately bring the discussion into the public arena.

Obviously a nation whose government systematically violated its own laws and international law in its implementation of torture as an intellingence gathering method has lost touch with the importance of the rule of law in our lives and the life of our nation.The fact that we are dithering over whether or not to even formally investigate these criminal actions speaks volumes about our connection to the rule of law and its role in a civilized society of equals.  In such a society, the equality of citizens is buillt on the equal application of the rule of law.  All are bound by the same set of rules, are judged by the same system of adjudicaiton, and if found to have violated the law, suffer the proscribed consequences. To even consider that our leaders, our government and the people who staff it are somehow to be held to a different standard or to no standard at all should be sufficiently troubling to at least warrent an investigation into the circumstances under which the law was violated.  To ignore a potential violation of the law at the highest level of our government errodes the glue that holds our society together and leaves us trying the live and work together without the vital guidelines that make that possible.Ordinary citizens must stand up for and protect our own stake in society and our own equality by insisting that an investigation into the law breaking of the Bush administration take place.  That the appropriate charges be filed if the evidence collected supports such charges and that those charged are tried under the guidelines established in the Constitution. We must not continue to argue the case for or against torture in the media.  We must have it argued in a court of law. A court of law, including the Congress in cases of impeachment as designated in the Constitution, is the only way to re-establish the principle of law and to therefore re-inforce the bonds and tacit agreements which hold us together.

In my talks with my collegues, friends and students, I often find the same, rather cavalier, attitude regarding the Constitutional protections outlined in the Bill of Rights.  There is a strong presumption of guilt for those who find themselves under investigation, or indicted, or on trial.  These "criminals" ought not be protected by the law.  They ought to be punished by it.  When I try to engage these well meaning, educated people in a discussion of why these provisions exist, that the presumption of innocence protects us all from being falsly accused and punished, it tends to be a very brief conversation ending with the assertion that good people don't need these protections because they don't commit crimes, don't associate with those who do, and therefore would not find themselves in the position of needing to take advantage of these protections.  It is hard to shake the faith folks have in the vagaries of fate.  It is much easy to shake their faith in the basic fairness and justice inherent in the rule of law.

This problem is not unique to the right side of the political and social spectrum.  The left also makes the same errors.  Today we find the Obama administration arguing that legal rules agaisnt hearsay are not part of the American legal tradition and can be discounted  when the government sees an overwhelming reason to do so.  It doesn't take a degree in law to see the flaw in this line of thinking.  One of the most basic protections granted all in the Bill of Rights is the right to confront our accusors.  That is why hearsay is prohibited in most cases and why  exceptions to this rule made for convenience would undermine the rule of law and the very fabric of society.  We would no longer be applying the law fairly to all.

I continue to be stunned by the ease with which we as a nation have dispatched habeous corpus.  Is there a more basic human right than to be able to challeng our dentention in front of a legally proscribed neutral arbiter?  Yet, we seemingly readily ignore this most basic right when it is more convenient to do so. 

In all of these examples, not only are we being undermined as a society, we are actively participating in our own dismantling.  Our equality under the law is what holds us together.  When the law is ignored to serve a short term goal, and some are no longer required to follow the law, we are no longer a society of equals.  It is time for us to have an honest conversation about the importance of the rule of law and the equality that it creates.  If not we risk the very things we most want to protect.