Pod Insights Civics 101 What is the Rule of Law? About this episode What is the rule of law? It's certainly not the same as the rule of men.
This episode was recorded live at the John J. Moakley Courthouse in Boston. It features the voices of Justice Patricia Alverez and Justice Gustavo A. Gelpí.
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Transcript Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.
0:11 Nick Capodice? Good evening, ladies and gentlemen. I'm Nick Capodice.
0:13 Speaker 01 I'm Hannah McCarthy.
0:14 Nick Capodice? And we are here today for a very special edition of Civics 101 Live. For those out there who are listening who are not in the room, we are at the Stephen G. Breyer Community Learning Center at the Moakley Courthouse in merry old Boston. Hold on, before we start, I've always wanted to say this. This episode of Civics 101 was recorded in front of a live studio audience.
0:35 Speaker 01 Nick, was that everything that you have always dreamed of?
0:37 Nick Capodice? It absolutely was. Did you ever watch Lost, the show Lost?
0:40 Speaker 01 I did. I believe that I stopped watching around the fourth season.
0:45 Nick Capodice? Did many of you watch Lost when it came out? Thank you, heavens. Yeah, of course, right. That's the correct answer to that. And you know on the show where the guy goes "previously on Lost"?
0:53 Speaker 02 Previously on Lost.
0:55 Speaker 01 Yes.
0:56 Nick Capodice? Okay. The guy who did that voice was a chairman at ABC who quit, who forcibly resigned just before the show came out. And then they brought him in secretly to say "previously on Lost." So he's like doing a secret perpetually in the Lost canon.
1:13 Speaker 01 Was that like a Last Jabs thing? Sort of like, "All right, well, I'm taking this with me."
1:17 Nick Capodice? I'm gonna be on the show forever.
1:22 Nick Capodice? So Hannah, we are not here today, though, to talk about hatches and polar bears?
1:27 Speaker 01 We are not, though we have mentioned John Locke quite a bit on the show. But let's get to it, Nick. What are we doing here today?
1:36 Nick Capodice? Today on Civics 101, we are talking about one of the most frequently used and infrequently defined expressions in the world of civics: the rule of law.
1:49 Speaker 03 You know, Trey, what we know is that this administration is anti the rule of law.
1:55 Speaker 04 Activist judges, liberal judges with a political bent, it's a threat to the rule of law.
2:00 Speaker 05 The president himself has led a full-frontal assault on the Constitution and the rule of law.
2:08 Speaker 06 Donald Trump believes that following the rule of law, and this is crucial, is for suckers.
2:15 Nick Capodice? And it's no coincidence, this episode is coming out just before May 1st. For anyone out there, May 1st is Law Day. It's not a federal holiday or anything, but since 1958, we have recognized Law Day as an occasion to reflect upon and celebrate law. And also, Hannah, I don't know, did you know that May 1st is International Workers' Day, AKA May Day? And there's a whole story there about May Day and Law Day. We are not going to get into it.
2:41 Speaker 01 We also don't have time to get into the Ancient Spring Festival, or Maypoles, or anything like that. But Nick, did you know why pilots say "May Day", in the case of an emergency?
2:52 Nick Capodice? I thought we said we were going to stop all the factoids.
2:54 Speaker 01 It's just, this is a really, this is a really good one.
2:56 Nick Capodice? Alright.
2:56 Speaker 01 It comes from the French "May Day", for "help me".
3:00 Nick Capodice? I did not, I actually did not. Did any of you know that? Of course. The whole room nodded and said, "Of course", so more fool me, 80% of the room. But, we have been goofing around, just to get started, but seriously, for one second, I would love everyone here in this room, just to think to yourself, for one little bit, what to you is the rule of law?
3:19 Speaker 03 I think that the way to explain the rule of law is by talking about what the rule of law is not.
3:27 Speaker 03 So, the rule of law, it is not a law, and it's not a set of rules enacted by a country. It is not the rule of men.
3:40 Speaker 02 Well, the rule of law, in very, very basic terms, means that all persons are treated equally under the law.
3:49 Speaker 03 My name is Patricia Alvarez. I'm a senior justice in the 4th appellate district of Texas, and I am very happy to be here.
3:57 Speaker 02 My name is Judge Gustavo A. Helpi. I am a United States Circuit Judge, for the Court of Appeals for the First Circuit, which sits in Boston. And the jurisdictions within the First Circuit are Massachusetts, New Hampshire, Rhode Island, Maine, and Puerto Rico, where it's much warmer during the winter. And it's a story for another day, as to why Puerto Rico is part of the First Circuit, but I'm proud that it is.
4:25 Nick Capodice? We have two uniquely qualified guests to lead us through this one today. And I'm gonna leave the next step up to you Hannah. Judge Alvarez started with what the rule of law is not. And Judge Helpie started with what the rule of law is. Which of those would you wanna go through first?
4:41 Speaker 01 So you know what they say about drawing a face? So it can be incredibly difficult to get the nose correct. Drawing a human nose is a really difficult task. So the advice that a lot of new artists are given is, don't draw the nose at all. Draw the rest of the face and the nose sort of emerges. You draw everything else, you draw what the nose is not. So let's start with what the rule of law is not and maybe the rule of law will emerge.
5:10 Nick Capodice? I'm glad you opted to go with what it's not because the term "rule of law", it's kind of difficult because the word "rule" is kind of complicated. It means a lot of different things. Rule can mean like, you know, "I am ruled by a lord or a liege or a king or something." A rule can be a rule, like "you've gotta do this", "you've gotta do your homework before you can play video games." Or a rule can be a guideline, right? You know, "rule of X", "rule of thumb", "the rule of thirds in photography", "in writing, the rule of three", which is that things are better in threes. I just did it there, for example. But the rule of law, as Judge Alvarez said, it is not a rule, like "you've gotta do this", it is certainly not a guideline.
5:54 Nick Capodice? It is a system. All of us, we, all of us in this country are ruled by the law and we are not ruled by men.
6:04 Speaker 03 The rule of men is what a group of leaders want the law to be for their benefit only, not for the benefit of everyone else, but for their benefit. It could be not a group of men, it could be a political party, it could be a group of people, it could be a society, or it could be one person. The rule of men is so important to understand because it only satisfies the desire, the rights of the very few or of one person. And the rule of law is totally different than that.
6:42 Nick Capodice? I actually have a very good quote by Thomas Paine about this, and I wrote it down. Would you mind reading a slightly expedited version of it?
6:49 Speaker 01 "But where, say some, is the king of America? I'll tell you, friend, he reigns above and doth not make havoc of mankind like the royal brute of Great Britain. In America, the law is king. For as in absolute governments the king is law, so in free countries the law ought to be king, and there ought to be no other."
7:15 Nick Capodice? Thank you, Les, well done.
7:17 Speaker 01 So, thinking about this Thomas Paine quote, Nick, freedom is inextricably linked with rule of law. And as it so happens, that's how I see it too. So now I would love to focus on what Judge Helpie said the rule of law is. We talked about what it's not, what it is. That all people are treated equally under the law. And I'd also like to come back to that later, because I do think that deserves a little more interrogation.
7:45 Nick Capodice? Yeah, the notion that all people are treated equally under the law does deserve interrogating.
7:49 Speaker 01 But he did say, in addition, that everyone has the same obligation under the rule of law. What is that obligation?
7:57 Speaker 02 Well, for example, no one can be discriminated in employment on the basis of race, ethnic origin, sex. That's how the law protects everybody equally. Now, the obligation is that an employer, for example, has an obligation not to discriminate. So, individuals have the rule of law that applies to them. The law guarantees that they will not be discriminated against, but if they are, they will go to court. Same thing. An employer has to follow the law and guarantee that he is not discriminating against any individual.
8:33 Nick Capodice? All right, this is our agreement. If we are under the rule of law, it is a two-way street. In its best form, it is not unlike a healthy relationship. We are protected by the law, and in that protection is the recognition that we are accountable as well. Everyone else is protected from us. And if you don't have that basic agreement, you're gonna have a bad time.
8:57 Speaker 02 You go to the days of the Old West.
9:01 Speaker 02 Who's right, who's wrong, you draw your gun and you shoot. That's not the way we resolve things in this country. You go to the courts, the courts resolve the controversies civilly. And that's the important thing about our rule of law in our country.
9:16 Speaker 01 Okay, I am very glad that we're getting to the courts here. Because they do seem to me to be the necessary facilitator of the rule of law. And because I'm fairly sure that I am currently in a room with more judges than I've ever been in a room with before, to my knowledge, right?
9:33 Nick Capodice? Right. To your point Hannah, absolutely necessary. But in order for courts to play a role, in order to facilitate the rule of law, they have to maintain five immutable ironclad characteristics. Laws do as well. Now, I found this quintet, this little group of five immutable characteristics from the Rule of Law Education Center, not in the United States, from our neighbor and friend, our democratic ally. This is the country that gave us the secret ballot. This is the country that champions democracy sausage at the bowls. This is the country that enforces mandatory ranked choice voting.
10:13 Speaker 01 I have a feeling you have Waltzing Matilda queued up right now.
10:16 Nick Capodice? I think I might, let me see.
10:20 Nick Capodice? Our gentle neighbor to the far, far, far south, southwest, or east, depending which you go, Australia, thank you Australia. The five rules for the rule of law to exist. Laws must be, one, fair. Laws have to apply to everyone regardless of status. Two, they have to be rational. Laws cannot be arbitrary. You can't have a law against something or someone because you don't like them. Number three, laws must be predictable. The punishments for breaking the law must be clear. Nobody should be thrown in jail for something they had no idea would result in that. Number four, laws must be consistent. Similar circumstances for similar people are dealt with in the same way. And finally, laws must be impartial.
11:06 Nick Capodice? The judicial branch, which makes decisions on laws, must be independent.
11:11 Speaker 01 That's a helpful list.
11:12 Nick Capodice? Thank you. I like it.
11:14 Speaker 01 I do want to get into that last one, though. An impartial and independent judiciary. We've talked about this many times on this show. You know, judges are humans. They're not empty vessels through which the Constitution flows.
11:28 Nick Capodice? No, they are not. They are humans. Justice wears a blindfold, but behind that blindfold is a thinking, considering, human head.
11:36 Speaker 01 So how do we define an independent judiciary?
11:40 Nick Capodice? Here is Justice Alvarez.
11:42 Speaker 03 So what is an independent judge? Well, the independent judge is that judge that acts within his or her authority. Number one. And number two is a judge that can rule, that can give an opinion, if it's at the appellate level, give an opinion without the fear of being harassed, without the fear of being placed in jail. Okay? So that's what it means to be independent. To be independent also means that the executive and the legislators set forth our salaries and set forth, you know, our benefits and so forth.
12:25 Speaker 03 Despite that, we as judges can act, can rule, without fear of the legislators or the executive taking away our salaries. So that's what it means to be independent. Not to do whatever you want to do, but not to fear.
12:43 Speaker 01 I appreciate so deeply a judge actually explaining that. You know, I think that's the first time that we've asked a judge directly what that really means. That was incredibly helpful. And as we're working through these principles, these five principles that you laid out, Nick, these rules for the rule of law, there's the ideal, right? There's the thing, there's the shining ideal, and then there's the practice. We can strive for a perfect democratic republic under a flawless rule of law.
13:13 Speaker 01 But I don't think we are that.
13:15 Nick Capodice? We sure are not.
13:17 Speaker 01 And I do not want to make this episode moot. But you know, if I asked a room full of random people, are all people in America treated exactly equally under the law? I don't know if everyone would say, yes, absolutely.
13:32 Nick Capodice? Do you want to try?
13:33 Speaker 01 I'm a little nervous, but yes, I do. Let me ask this room. Does everyone here in this room believe that all people in this country are treated equally under the law? No.
13:44 Nick Capodice? That's pretty much what I expected.
13:45 Speaker 01 Yeah.
13:48 Nick Capodice? We're going to get into that, but first we've got to take a quick break.
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16:39 Speaker 01 We're back. You're listening to Civics 101, live from the Stephen J. Breyer Community Learning Center at the Mocley Courthouse in good old Boston.
16:47 Nick Capodice? Here's to good old Boston, the home of the bean and the cod, where the lowls speak only to cabots, and the cabots speak only to God.
16:55 Speaker 01 A little ditty that I have known since a young child. I grew up in Braintree, Massachusetts, so I've known that for a while.
17:02 Nick Capodice? That's right, you and John Adams, coming up in Braintree.
17:04 Speaker 01 Not at the same time, but yeah.
17:05 Nick Capodice? Right.
17:11 Nick Capodice? We are in this courthouse today with a John Adams quote chiseled on the side of it, by the way, because we're talking about the rule of law.
17:20 Speaker 01 So, let's get back to the law applying equally to everyone. Because, Nick, as we gestured to earlier and as we polled the room, it does not seem to.
17:32 Nick Capodice? Right. So for this, I would like to begin with sort of a broad 30,000-foot look at this and then sort of home in on obvious inequalities in our justice system, if that's okay.
17:43 Speaker 01 That's okay.
17:44 Nick Capodice? So, let's take something like stealing, right? Stealing writ large, it's against the laws. But stealing a car is not the same as stealing a pack of gum. And that's one of the reasons we have different categories of things like violations and misdemeanors and felonies and felonies in different classes and degrees.
18:03 Speaker 01 Do you remember that commercial from the 90s about piracy?
18:07 Nick Capodice? Oh, you wouldn't download a car?
18:10 Speaker 01 Yes. That commercial pained me every time I saw it. I can neither confirm nor deny that Napster played a part of my childhood, but it hurt to watch that.
18:21 Nick Capodice? I have to tell you, I didn't know, I don't know if I would or not, but when I was 13, I might have downloaded a car if I could. But let's say it's two people who stole the same thing, or three people who stole the same thing. Let us go with the good old literary chestnut, a loaf of bread.
18:36 Speaker 01 And we're not going to get into the broken window panes and the attempted theft of the silver candlesticks.
18:42 Nick Capodice? We're not going to, Javert. But seriously, one person steals a loaf of bread to feed a hungry family, another steals it as a prank, and a third steals it, not because they needed it, but just because nobody was looking and they felt like it. Should all three people get the same punishment?
18:56 Speaker 01 Fortunately, that's not for me to decide, right? That is the job of judges and juries. Lawyers play a role in that, you know, to explore the context of a crime. Judges, maybe with the recommendation of the jury, determine the sentence. I know that is rare, but it happens.
19:15 Nick Capodice? And sometimes that last step, determining the sentence, is much more complicated than I had imagined. And again, here is U.S. Court of Appeals Circuit Judge Gustavo Helpi.
19:25 Speaker 02 And I would say sometimes sentencing is the most difficult aspect of the rule of law, because sometimes we have what are known as mandatory minimums. For example, in drug cases involving large quantities of drugs, or when you have firearms involved, you have to apply the rule of law. You have to apply that mandatory minimum. But sometimes it is tough from the judge's perspective, because you will see an individual who otherwise should not be serving that much time, but for the rule of law, you have to apply it equally to everybody.
19:59 Speaker 01 Okay, so the difficulty that Judge Helpi is describing here is feeling that perhaps a sentence is unfair, maybe, right? But there's a law at the state or federal level saying that certain offenses have to be punished in a certain way. So this is an instance of the rule of law being upheld, even if perhaps to that individual judge, it might not feel fair.
20:22 Nick Capodice? To take it a step further, if a defendant has a really good reason they broke the law, and this law has a mandatory minimum sentence, but this person had really special circumstances, and the judge gives them a lighter sentence, that may be fair, but it is not upholding the rule of law. Now, it is time for us to get into things that are not fair, not the rule of law, and that are definitely happening in the United States of America. The law should, but does not, apply equally to everyone.
20:56 Speaker 01 I'm glad that we're talking about this, because to me, it gets at the very many steps that have to occur for the law to be applied inequitably, right? Where and how you grew up, how you're perceived by others, how you're perceived by law enforcement, even the laws that guide your city or state, has your legislature crafted them in a way that might put you in scrutiny's way more than somebody else? And we know, based on the stats, that race and money play a huge part in this. We know that an innocent black person is seven times more likely to be wrongfully convicted of murder than an innocent white person, that black Americans are incarcerated at five times that of the rate of white Americans.
21:41 Speaker 01 There's so much data on this. So Nick, this makes me wonder what role a democracy could or should play in ensuring its citizens are set up to succeed under the rule of law. And then, you know, the money element, wealthy people, they can pay fines, they can pay their bail, they can hire the best lawyers.
22:02 Nick Capodice? You said the best lawyers. You said the most powerful law firms, right? And it's fitting that you said those words. Listeners to our show know we have talked in many episodes about unequal treatment of historically marginalized communities, past and present, but we are in a unique timeframe right now when we talk about fractures in the rule of law.
22:24 Speaker 03 Since his inauguration, President Trump has taken 145 executive actions, and many of them, as we've reported here on The Daily Report, have involved immigration, the shrinking of government, but some have also targeted law firms. The president has attacked those in the legal community who, in his opinion, engage in, quote, "frivolous, unreasonable, and vexatious litigation against the United States."
22:46 Nick Capodice? As we are taping this, President Trump has used executive orders to target six law firms, large, wealthy law firms, preventing them from entering federal buildings, ending current federal contracts with them, or removing them as potential firms for future government work. A partner in one firm, Paul Weiss, now that is the name of the firm, it's not one person, it stands for Paul Weiss Rifkin, Warden, and Garrison, this firm did pro bono work in a suit against people who participated in the January 6th insurrection. And there's an executive order, Executive Order 14237, titled "Addressing Risks From Paul Weiss." This executive order stripped them of their ability to continue to operate.
23:30 Nick Capodice? That executive order was lifted after Paul Weiss agreed to do $40 million of pro bono work that supported the agenda of the Trump administration. There are several lawyers and judges in this room tonight, there are other legal professionals in this room tonight as well, and I do not know if they are willing or able to comment on it. So I can, and I will say, if we go back to our list of five things that make the rule of law work, ask yourself, is this fair? Is it rational? Is it predictable? Is it consistent? And is it impartial? And I'm going to leave that to you to decide.
24:17 Speaker 01 All right, Nick. So we have talked about ideal versus reality. Did the judges you spoke with have anything to say about cracks, so to speak, in the rule of law? You know, Payne talked about freedom and rule of law going hand in hand. What happens if and when rule of law falters?
24:40 Speaker 03 And it's called democratic erosion. That's a title that a lot of the great legal thinkers have labeled this phenomenon. So erosion occurs when the captain of one soccer team buys one of the referees. The rules of soccer can be changed now because the referees, you know, they won't pay attention to the rules and they'll do whatever and one team benefits from those rules and the other team does not. It's occurred in Venezuela. It's occurred in Turkey, by the way.
25:21 Speaker 03 It's just occurred in 2010 in Hungary and shortly thereafter in Poland.
25:26 Nick Capodice? Judge Alvarez wrote a paper on this and I have a link in the show notes to anybody who wants to read it. It's tremendously written. She explains how the breakdown in the rule of law is inextricably tied to the breakdown of democracy. And she started with the example of Nazi Germany.
25:43 Speaker 03 Well, you have Hitler coming into power in a very democratic, you know, oriented way. He was voted in. And as he became powerful, as did the Nazi party, they started stripping the government. And they started stripping not only the government, but also the judiciary and the press. And all of the sudden, you had the government of a few, government of men, the rule of men versus the rule of law versus a democracy. And it was...
26:27 Speaker 03 What Hitler and his people wanted. And that's what everyone was submissive to.
26:34 Nick Capodice? And then she moved on. She said, things can happen differently, like in Peru or Argentina, when it happens suddenly overnight, like in a coup d'etat.
26:42 Speaker 03 And it happens really fast. And everyone is just shocked, but, you know, democracy is just finito, terminado. Totally, in one day. And with guns. And with the military if you want to.
26:56 Nick Capodice? And finally, there is one more way.
26:58 Speaker 03 There's another way, and that's the Hungarian way. And the Hungarian way is Viktor Orban, who is very charming, and in his party, the Fidesz Party, and they come into power, they're voted in, and they just swept everything, you know? They're the majority party in parliament, they're the majority of everything. So what do they do? Well, we've got all this power. Let's do something about it. They began very slowly dismantling all the checks and balances. And they started, by the way, with the constitution.
27:37 Nick Capodice? Viktor Orban and his party made drastic changes to Hungary's constitution. They also appointed loyalists to key judicial positions. And he lowered the retirement age of judges, forcing hundreds of them into early retirement in one night.
27:53 Speaker 03 And they started enacting all these laws that benefited only a few. Not everyone. The other problem was that they violated laws. And guess what? They were not held accountable. Why? Because the judiciary wasn't there. They annihilated the judiciary. They totally destroyed it. And so now they're doing what they want to do. So what do you have there? You have very charming people coming into power, destroying the rules.
28:33 Speaker 03 Or enacting new rules that give them more power. The rulers start ruling with the rule of the few men and displacing the rule of law by setting aside the judiciary. So that's what happens with the democratic erosion.
29:00 Speaker 01 All right, so Nick, as you know, something that is very important to me right now in particular is the emphasis that we live in a democracy wherein people do have the power. And it is the role of the media, I think, to help people understand things and to not exaggerate things and to not scare them, right? That is part of our job, that's part of our responsibility. And so many guests who I've spoken to recently have said to me, you know, the important thing about this nation is that all of us, we the people, we are still here, this is still a democracy, we still have power, and that is the most important thing.
29:40 Nick Capodice? Yeah, and I have one more guest to add to your list, Hannah. We talk a lot about the pillars of democracy on the show, and the rule of law stands amongst them. Having now made this episode, if you asked me, what is the rule of law? I might say it is the thing that stops erosion. It stops anarchy, it stops tyranny, and it keeps our democratic republic. Now, I don't believe Judge Alvarez, or Judge Helpie, or any of the people in this room for that matter, want to see that pillar crack, or want to see democracy erode. Unfortunately, for some good news, Judge Alvarez had some advice for the people.
30:21 Nick Capodice? Democracy is still in their hands, but only if they're politically active.
30:26 Speaker 03 And I don't say go, you know, become a Democrat always, or a Republican, you know, it doesn't matter. What you believe in, you become active politically. Always watching that there's no erosion on democracy, that there's no rule of men in our country, and that only the rule of law exists. And that people don't, they don't take the rule of law lightly. Honor it, live it. I think that we can prevent things like what happened to Hungary and what happened to Venezuela and Argentina and Germany. Everyone is accountable. No one
31:11 Speaker 03 is above the law. And I think that our children need to know that.
31:29 Nick Capodice? Well, that is our episode on the rule of law. I've got some massive thanks here. First, a huge thank you to Alison Gerthner for helping organize all this. She works at the Stephen Brier Community Learning Center on Courts and the Constitution at the Mookley Courthouse. After the taping of the episode, we had a wonderful talk with three judges. And since the microphones are off, everybody could be really candid. And it was phenomenal. So thank you, Judge Ireland, Judge Ponzler, and Judge A-Frame. If you want to find out more about Law Day, May 1, I encourage you to check it out. Go to lawday.org. You can see the stuff that the American Bar Association has put together. And thanks to them, too.
32:10 Nick Capodice? Thank you, American Bar Association. And looking at you, Frank Valdez, you're a star. This episode was made by me, Nikita Padice, with Hannah McCarthy. Our staff includes Christina Phillips as a senior producer, Marina Henke as a producer, and Rebecca Lavoy as everything to all things. We say executive producer, but she is technically the director of on-demand audio. But she's so much more than that. Music in this episode from Hanu Dixit, Epidemic Sound, and the inimitable Chris Sabriski. Civics 101 is a production of NHPR, New Hampshire Public Radio.
32:50 Nick Capodice? Break time. But the break is a lie. It is a lie. Did anybody get that joke? The break is a lie? Yeah, I got it out. Hannah and I had a little bet about who would get that joke in the room. It's a poor old joke. All right, you ready to go? I'm ready. Here we go.
33:14 Speaker 04 US democracy is being held together by duct tape. But what if the solution isn't more tape, but a fundamentally different design? Check out More Like Us, the new podcast for more equitable democracy, the award-winning racial justice organization focused on election reform, hosted by me, Colin Cole. Each episode, More Like Us provides smart, accessible conversations at the intersection of policy, culture, and democracy. Hear from the people reimagining our political future without the jargon or the lecture. So follow More Like Us wherever you get your podcasts.
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