Mark Constitution Day with a renewed commitment to accountability

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Today marks the 235th anniversary of the signing of the US Constitution. It is time to celebrate this remarkably enduring framework for our democracy and to soberly reflect on the current challenges it faces.

The Framers’ extraordinary achievement was the codification of a system of checks and balances to prevent abuse of authority and ensure the rule of law – that fundamental principle of fairness, that no one is above the law and that the law applies equally to all. This system is the envy of the world, but it shouldn’t be taken for granted, and there are growing signs that it’s under strain.

According to the World Justice Project Rule of Law Index (I am the executive director of the World Justice Project), the rule of law in the United States has deteriorated by 6% over the past five years. The nation ranked only 27th out of 139 countries assessed in 2021, and next month we will know the latest ranking with the release of the 2022 Rule of Law Index.

The Index is widely recognized as the leading measure of the rule of law around the world and is used by the United States Agency for International Development, the United States Department of State and the United States Millennium Challenge Corporation to inform the investment, aid and foreign diplomacy. Perhaps it’s time to look inward and consider what this data also tells us about the health of our own democracy.

The Rule of Law Index measures the performance of countries across eight factors: Constraints on Government Powers, Safeguards Against Corruption, Open Government, Fundamental Rights, Order and Security, Regulatory Enforcement, Civil Justice and Justice criminal. Over the past five years, the United States’ rule of law performance has eroded most precipitously (16%) in the index factor measuring constraints on government powers. This factor measures checks on executive authority, for example from the legislature, judiciary, independent audit agencies, media and civil society. On the index measure of whether government officials are disciplined for misconduct, the United States ranks only 33rd in the world, and its score on whether the civil justice system is free from improper government influence places it a pitiful 41st out of 139 countries – just ahead of Latvia and below Namibia.

Index scores are calculated based on surveys of legal practitioners and ordinary citizens in each country, assessing how they experience and perceive their government’s performance. These polls indicate that Americans’ confidence in the current effectiveness of our system of checks and balances is eroding.

Between 2016 and 2021, we saw a 30% drop in expectations among the general population of the United States that a senior government official taking public funds for personal gain would be held accountable. Over the same period, we saw a 27% drop in responses from legal practitioners regarding the likelihood that a powerful or politically connected person would face legal consequences for a non-violent crime.

Put simply, this data shows that a growing number of Americans do not believe the rule of law is valid or that no one is above the law.

The erosion of Americans’ faith in the rule of law requires urgent attention and principled leadership at all levels and in all branches of government to advance and accept reforms that will strengthen accountability for all, even – in fact, especially – when such reforms go against the personal interests of the leaders.

This means strengthening legislative and judicial ethics, including for the Supreme Court. It means abandoning the partisan gerrymandering that allows representatives to choose their constituents rather than the other way around. This means strengthening the independence and authority of inspectors general to root out corruption and undue influence in government. And that means that those responsible for the January 6 insurrection, Holocaust deniers and others who seek to undermine the integrity of our electoral system, the ultimate check of authority, must be held to account.

Only with such measures can the United States hope to reverse the steady erosion of its rule of law and honor the vision of responsible governance that the framers had two centuries ago.

Elizabeth Andersen is the executive director of the Global Justice Project.

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