Today marks the 235th anniversary of the signing of the U.S. Constitution. It is a time for a celebration of that remarkably durable framework for our democracy, and for sober reflection on the current challenges to it.
The Framers’ extraordinary achievement was the codification of a system of checks and balances to prevent abuse of authority and guarantee the rule of law — that fundamental principle of fairness, that no one is above the law, and that the law applies equally to all. That system has been the envy of the world, but it should not be taken for granted, and there are growing signs that it is under stress.
According to the World Justice Project Rule of Law Index, (I am the executive director of the World Justice Project) rule of law in the United States has deteriorated by 6 percent over the past five years. The nation ranked just 27th out of 139 countries evaluated in 2021, and next month we will learn the latest ranking with the publication of the 2022 Rule of Law Index.
The index is widely recognized as the leading measure of the rule of law worldwide and is used by the U.S. Agency for International Development, the U.S. Department of State and the U.S. Millennium Challenge Corporation to inform investment, aid and diplomacy abroad. Perhaps it is time to turn our gaze inward and scrutinize what these data tell us about the health of our own democracy as well.
The Rule of Law Index measures country performance across eight factors: constraints on government powers, guarantees against corruption, open government, fundamental rights, order and security, regulatory enforcement, civil justice and criminal justice. Over the past five years, the U.S. rule of law performance has eroded most precipitously (16 percent) in the index factor measuring constraints on government powers. This factor measures the checks on executive authority, for example from the legislature, the judiciary, independent audit agencies, the media and civil society. On the index measure of whether government officials are sanctioned for misconduct, the United States ranks just 33rd globally, and its score for whether the civil justice system is free from improper government influence puts it at a pitiful 41st out of 139 countries — just ahead of Latvia and below Namibia.
The index scores are calculated based on surveys of both legal practitioners and ordinary people in each country, gauging how they experience and perceive their government’s performance. These surveys 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 percent decline in the U.S. general population’s expectations that a high-ranking government official taking public money for personal benefit would be held accountable. During the same period, we saw a 27 percent decline in legal practitioners’ responses about the likelihood that a powerful or politically connected person will face legal consequences for a nonviolent crime.
Put simply, these data drive home that a growing number of Americans do not believe that the rule of law holds or that no one is above the law.
The erosion of Americans’ trust 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 reinforce accountability for all, even — indeed, especially — when such reforms run contrary to leaders’ personal interests.
This means strengthening legislative and judicial ethics, including for the Supreme Court. It means abandoning partisan gerrymandering that permits representatives to pick their voters rather than the other way around. It means reinforcing the independence and authority of inspectors general to root out corruption and improper influence in government. And it means accountability for those responsible for the Jan. 6 insurrection, election deniers and others who seek to undermine the integrity of our electoral system, the ultimate check on authority.
Only with such steps can the United States hope to reverse the steady erosion in its rule of law and honor the vision for accountable governance that the framers had two centuries ago.
Elizabeth Andersen is the executive director of the World Justice Project.