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.
To learn more about Law Day and ways you can celebrate the rule of law, click here.
Transcript
Note: this transcript is AI-generated and may contain errors
Nick Capodice: Good evening, ladies and gentlemen. I'm Nick Capodice. I'm Hannah McCarthy, 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. Um, this episode of civics 101 was recorded in front of a live studio audience.
Hannah McCarthy: Uh, Nick, was that everything that you have always dreamed of?
Nick Capodice: It absolutely was. Did you ever watch lost the show? Lost?
Hannah McCarthy: I did, I believe that I stopped watching around the fourth season.
Nick Capodice: Did you all 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, in the show where the guy goes. Previously on lost.
Archive: Previously on lost.
Hannah McCarthy: Yes.
Nick Capodice: Okay. The guy who did that voice was a chairman at ABC who quit, who forcibly kind of resigned just before the show came out. And then they brought him in secretly to say previously on lost. So he's like, he's like kind of doing a secret perpetually in the lost canon.
Hannah McCarthy: Was that like a Last Jabs thing? Sort of like. All right, well, I'm taking this with me.
Nick Capodice: I'm gonna be on the show forever.
Nick Capodice: So, Hannah, we are not here today, though, to talk about hatches and polar bears.
Hannah McCarthy: We are not the. We have mentioned John Locke quite a bit on the show, so. But let's get to it. Nick, what are we doing here today?
Nick Capodice: So 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.
Archive: You know, Trey, what we know is that this administration is anti the rule of law.
Archive: Activist judges, liberal judges with a political bent. It's a threat to the rule of law.
Archive: The president himself has led a full frontal assault on the Constitution, the rule of law.
Archive: Donald Trump believes that following the rule of law and this is crucial, is for suckers.
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 if. 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.
Hannah McCarthy: 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?
Nick Capodice: I thought we said we were going to stop all the factoids because it's just.
Hannah McCarthy: This is a really this is a really good one. All right. It comes from the French May day for help me.
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?
Justice Alverez: I think that the way to explain the rule of law is by talking about what the rule of law is not, 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.
Justice Gelpi: Well, the rule of law in very, very basic terms means that all persons are treated equally under the law.
Justice Alverez: My name is Patricia Alvarez. I'm a senior justice in the Fourth Appellate District of Texas, and I am very happy to be here.
Justice Gelpi: My name is Judge Gustavo, a Gelpi. I'm. 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 this first circuit, but I'm proud that it is.
Nick Capodice: We have two uniquely qualified guests to lead us through this one today, and I'm going to leave the next step up to you, Hannah. Judge Alvarez started with what the rule of law is not. And Judge Gelpi started with what the rule of law is. Which of those would you want to go through first?
Hannah McCarthy: 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.
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. Rule can be a rule like, you've got to do this. You've got to do your homework before you can play video games. Or rule can be a guideline, right? You know, rule of X, rule of thumb, the rule of thirds in photography and writing, the rule of three, which is that things are better in threes. I just did it there.
Nick Capodice: But the rule of law. As Judge Alvarez said, it is not a rule like you've got to do this. It is certainly not a guideline. 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.
Justice Alverez: 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, you know, 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 the rights of the very few or of one person. And the rule law is totally different than that.
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?
Hannah McCarthy: 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 government, the king is law. So in free countries the law ought to be king, and there ought to be no other.
Nick Capodice: Thank you. That was well done.
Hannah McCarthy: 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 Gelpi 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.
Nick Capodice: Yeah. The notion that all people are treated equally under the law does deserve interrogating.
Hannah McCarthy: But he did say, in addition, that everyone has the same obligation under the rule of law. What is that obligation?
Justice Gelpi: 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 aren't, they will go to court. Same thing. An employer has to follow the law and guarantee that he is not discriminating against any individual.
Nick Capodice: All right. This is our agreement. If we are under the rule of law, it is a two way street and 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 going to have a bad time.
Justice Gelpi: You go to the days of the Old West. Who's right? Who's wrong? You draw your gun and you shoot. Uh, 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.
Hannah McCarthy: Okay. I am very glad that we're getting to the courts here. Um, because they do seem to me to be the necessary facilitator of the rule of law. Uh, 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.
Nick Capodice: Right, 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 polls. This is the country that enforces mandatory ranked choice voting.
Hannah McCarthy: I have a feeling you have Waltzing Matilda queued up right now.
Nick Capodice: I think I might. Let me see. Our gentle neighbor to the far, far, far south, southwest or east, depending on which you go. Uh, 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 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. The judicial branch which makes decisions on laws must be independent.
Hannah McCarthy: It's a helpful list.
Nick Capodice: List. Thank you, I like it.
Hannah McCarthy: 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.
Nick Capodice: No, they are not. They are humans. Justice wears a blindfold, but behind that blindfold is a thinking considering human head.
Hannah McCarthy: So how do we define an independent judiciary?
Nick Capodice: Here is Justice Alvarez.
Justice Alverez: 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. 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.
Hannah McCarthy: 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. But I don't think we are that.
Nick Capodice: We sure are not.
Hannah McCarthy: 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.
Nick Capodice: Do you want to try?
Hannah McCarthy: 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?
Speaker11: No, no, no.
Nick Capodice: That's pretty much what I expected. Yeah, we're going to get into that. But first we've got to take a quick break.
Hannah McCarthy: We're back.
Hannah McCarthy: You're listening to civics 101 live from the Stephen J. Breyer Community Learning Center at the Moakley courthouse in good Ole Boston.
Nick Capodice: Here's to good old Boston.
Nick Capodice: The home of the bean.
Speaker4: And the cod.
Nick Capodice: Where the Lowells speak only to Cabots and the Cabots speak only to God.
Hannah McCarthy: On 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.
Nick Capodice: That's right. You and John Adams coming up in Braintree?
Hannah McCarthy: Not at the same time, but. Yeah.
Nick Capodice: Right. 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.
Hannah McCarthy: 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. Right.
Nick Capodice: So for this, I would like to begin with sort of a broad 30,000 foot look at this and then sort of hone in on obvious inequalities in our justice system. If that's okay.
Hannah McCarthy: That's okay.
Nick Capodice: So let's take something like stealing, right? Stealing. Writ large. It's against the law. 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.
Hannah McCarthy: Do you remember that commercial from the 90s about piracy? Internet piracy?
Speaker4: You wouldn't download a car?
Hannah McCarthy: Yes. That commercial pained me every time I saw it. I could neither confirm nor deny that Napster played a part of my childhood, but it hurt to watch that.
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 have. 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.
Hannah McCarthy: And we're not going to get into the broken window panes. And the attempted theft of the silver candlesticks.
Nick Capodice: We're not gonna. 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?
Hannah McCarthy: 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. Um, judges, maybe with a recommendation of the jury, determine the sentence. I know that is rare, but it happens.
Nick Capodice: And sometimes that last step, determining the sentence is much more complicated than I had imagined. And again, here is US Court of Appeals Circuit Judge Gustavo Gelpi.
Justice Gelpi: 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 that mandatory minimum. But sometimes it is tough from the judges 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.
Hannah McCarthy: Okay. So the difficulty that judge help is describing here is feeling that perhaps a sentence is unfair. Maybe. Right. Um, 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.
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.
Hannah McCarthy: 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 scrutinize 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. 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.
Nick Capodice: You said the best lawyers. You said the 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 time frame right now. When we talk about fractures in the rule of law.
Speaker13: 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, engaged in, quote, frivolous, unreasonable and vexatious litigation against the United States.
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. Um, Paul, Weiss, Rifkind, Wharton and Garrison. This firm did pro bono work in a suit against people who participated in the January 6th insurrection. And there was an executive order, uh, Executive Order 14237 titled Addressing Risks from Paul Weiss. This executive order stripped them of their ability to continue to operate. 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.
Hannah McCarthy: 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?
Justice Alverez: And it's called the democratic erosion. And that's a title that a lot of the great legal thinkers have labeled this 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. It's just occurred in 2010, in Hungary and shortly thereafter in Poland.
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.
Justice Alverez: Well, you have Hitler coming into power in a very democratic, you know, oriented way. It 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 a 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 what Hitler and his people wanted. And that's what everyone, uh, was submissive to.
Nick Capodice: And then she moved on. She said things can happen differently, like in Peru or Argentina when it happened suddenly, overnight, like in a coup d'état.
Justice Alverez: 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.
Nick Capodice: And finally, there is one more way.
Justice Alverez: There's another way. And that's the Hungarian way. And the Hungarian way is, uh, Viktor Orban, who is very charming and, uh, and his party, the Fidesz party, and they come into power, they're voted in and, uh, they just swept everything, you know, they're the majority party in Parliament. They're the majority, everything. So what do they do? Well, we 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.
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.
Justice Alverez: 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 Initiated 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 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.
Hannah McCarthy: 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.
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 this 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 Help or any of the people in this room, for that matter, want to see that pillar crack or want to see democracy A road. And fortunately for some good news. Judge Alvarez had some advice for the people. Democracy is still in their hands, but only if they are politically active.
Justice Alverez: But I don't say go, you know, become a Democrat always, or a Republican, you know. It doesn't matter you what you believe in. You become active politically, always watching that. There's no erosion of democracy, that there is 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 and Germany. Everyone is accountable. No one is above the law. And I think That our children need to know that.
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 Allison Gaertner for helping to organize all of this. She works at the Stephen Breyer Community Learning Center on Courts and the Constitution at the Moakley 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 Ponsor and Judge Ephraim. If you want to find out more about Law Day, May 1st I encourage you to check it out. Go to law. Org you can see the stuff that the American Bar Association has put together. And thanks to them too. Thank you American Bar Association. I'm looking at you, Frank Valadez. You're a star. This episode was made by me. Nick Capodice with Hannah McCarthy. Our staff includes Christina Phillips as a senior producer, Marina Henke as a producer. And Rebecca Lavoie is 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 Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio.
Nick Capodice: Great time. Great time. But the break is a lie.
Hannah McCarthy: It is a lie.
Nick Capodice: Did anybody get that joke? The break is a lie. Yeah, I got it. Hannah and I had a little bet about who would get that joke in the room. Uh, it's a portal joke. Are you ready to go?
Hannah McCarthy: I'm ready.
Nick Capodice: Here we go.