David M. Crane, founding Chief Prosecutor of the Special Court for Sierra Leone, writes a motivating commentary on the way forward to reclaim the rule of law in the United States, now that the Presidential Elections are over...
The election is over. The process has begun to transition to the next administration. What must be preserved is the Constitution of the United States. The cornerstone to the success of the Republic is the rule of law. Without it we are no different than any tinpot government in some dark corner of the world.
Tyrants have and continue to use the law as a shield, even a mirage, to give a sense of stability and lawful use of power. Throughout history this can be seen as leaders who do step away from the law have cursed the soul of a nation and disrupting the international order. The law is a two edged sword and can be used to bolster efforts by any autocrat to remain in power. It is imperative to understand that the lessons learned from these efforts have left nothing but death and destruction. The United States has been that one country that has shown that the rule of law works, not perfectly, but it allows for a more stable social order.
The world will dim, the light of the law diminished, should the United States step away from that rule of law. We are admired around the world for this. Regardless of the outcome of any election, the peaceful transfer of power has been admired and copied by leading democracies. This must be what happens now. Any efforts otherwise must be faced down, under law.
Public servants who serve selflessly, most behind the scenes, all have sworn an oath to preserve and protect our Constitution from all enemies, foreign and domestic. American citizens also have an obligation to honor that Constitution that begins with “We the People…” Regardless of who is in power we need to honor the rule of law and hold our elected officials to the law.
The legal profession is the ONE profession that must step up to ensure that our laws are respected. Lawyers are the heart of the Republic’s ability to exist under law. At this time of national stress due to a divided country and the looming shadow of a pandemic, we need to ensure that the backbone of our efforts to put this country on the road to recovery politically and practically is through our laws carefully advanced over decades of jurisprudence.
Lawyers have to hold tight the Constitution and on a daily basis recall their oaths taken when joining their various state bars that they will “preserve and protect”. Now that the election is over we must come together as a country, putting the Republic over party. We’ve done that before and we can do it again. We are one nation under God, with liberty and justice for all. Lawyers across this great land have ensured this every day since the founding of this grand experiment in democracy.
This nation has met greater challenges than where we are now. Over time the one bright red thread of meeting these challenges have been the law, preserved and honored by the legal profession. As lawyers we must continue this centuries old tradition of the rule of law. Justice Robert H. Jackson called it “liberty under law”. Without the law, there is no liberty.
Professor David M. Crane is a long time contributor to JURIST. He has practiced law for over 40 years and was the founding Chief Prosecutor for the Special Court for Sierra Leone and the founder of the Global Accountability Network seeking justice in Syria, Yemen, and Venezuela. He is the co-author of the “Caesar” Report.
Suggested citation: Professor David M. Crane, Preserving and Protecting the Rule of Law Now That the Election is Over, JURIST – Academic Commentary, November 6, 2020, https://www.jurist.org/commentary/2020/11/david-crane-american-elections/.
This article was prepared for publication by Khushali Mahajan, a JURIST staff editor. Please direct any questions or comments to her at firstname.lastname@example.org
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