Is it possible, at this deeply ideologically divided time, to articulate a set of principles of American constitutional democracy that those across the political spectrum can agree upon? This was our goal in creating, along with Drexel University law professor Lisa Tucker, a project we titled, “We Hold These Truths.” Our objective was to have a diverse group of individuals draft these principles, to release them on the Fourth of July, and to use them for public education.
The first step was to recruit about 20 prominent individuals from across the ideological spectrum to volunteer their time to be part of the drafting effort. As we reached out to people, we were delighted at the enthusiastic response.
The drafters included former Republican Govs. Christine Todd Whitman and Brian Sandoval. It included prominent Democrats such as Stacey Abrams, Pete Buttigieg and Maryland Rep. Jamie Raskin. Retired four-star Army Gen. Wesley Clark and civil rights lawyer Sherrilyn Ifill were among the first to agree to participate. We recruited a conservative former U.S. Court of Appeals judge, Thomas B. Griffith, and a liberal one, David Tatel. Best-selling author Brad Meltzer joined the drafting group. We added prominent law professors, former Yale Law School dean Harold Koh and New York University professor Melissa Murray.
And we succeeded. In a little over a month, we were able to come to unanimous agreement on a set of basic principles of American constitutional democracy. We hope these principles remind us that what unites us as a country, our deeply held underlying values, is greater than what divides us.
We decided early on to focus on five areas: the rule of law, democracy and elections, separation of powers, personal freedom, and equality. We divided into five subgroups to work on these topics and to propose principles to the entire drafting group. There then was the opportunity for responses and revisions.
The key, of course, was to make the statements sufficiently specific so they were not platitudes, but also general enough to be articulation of basic values.
For the rule of law, we stressed that to preserve liberty, fairness and the stability of our democratic society, the power of government and other actors must be limited by law and they must be accountable.
All people, no matter their station, must stand equal before the law, subject to the same rules, protections, privileges and sanctions. The rule of law demands due process, that before the government may deprive any person of life, liberty or property, the individual must have a meaningful opportunity to challenge the deprivation before an independent and neutral adjudicator. Law enforcement — investigations, prosecutions, adjudications and pardons — must be conducted according to law, with respect for human dignity and without regard to the personal or political interests of the executive.
And the rule of law cannot be preserved without an independent judiciary that is neither subject to intimidation by the executive or legislative branches of government, nor beholden to the demands of political parties.
For separation of powers, we stressed that a fundamental structural feature of the Constitution, and its chief safeguard of our liberty, is separating and placing limits upon the legislative, executive and judicial branches of government such that they check and balance one another’s power.
For democracy and elections, the crucial point is that the one depends on the other. We elect representatives to make the laws we must abide by. To succeed, elections must be transparent and fair.
A democratic society enfranchises voters to the fullest extent possible, makes elections accessible and refrains from erecting unnecessary barriers to voting. Voter suppression is antithetical to democracy, and it exists when eligible voters are unable to register to vote, cast a ballot or have that ballot counted. Also, our constitutional republic depends upon our shared commitment to the peaceful transfer of power, to accepting, honoring and respecting election results regardless of whether our preferred candidate wins.
The personal freedoms accorded throughout the Constitution and its many amendments are an essential protection against government tyranny and reflect the inherent rights of every person in the United States.
Democracy depends on freedom of speech and the press. The government has no right to intimidate or punish anyone simply on the basis of their views and ideas. The Bill of Rights protects those suspected and accused of crimes with provisions that limit police searches and arrests, ensure the privilege against self-incrimination and provide for fair trials. Our society respects fundamental aspects of autonomy, including the liberty to make important decisions about one’s life.
Finally, equality is a precondition of freedom. We all are free only when each of us, not just some of us, is free from discrimination, exclusion and threat. Our differences are our strength, not our weakness. Where autocracy and authoritarianism demand allegiance to uniformity, democracy demands the opposite — differences of people and opinion. Every person’s voice is of equal worth in the workplace, the public square and the voting booth. Equality of opportunity — in education, employment and participation in our democracy — is a right, not a privilege regardless of color, ethnicity, religion, poverty or wealth. The government’s decisions about our lives must be free of discrimination, racism, prejudice, and favoritism.
Readers can find the principles, beginning July 4, at www.weholdtruths.com, 249 years after the signing of the Declaration of Independence. Our hope is that Americans of every political persuasion will reaffirm these values, acknowledging that government of, for and by the people — not monarchy, autocracy or religious rule — is the best way to secure life, liberty and the pursuit of happiness.
We are not naive about what can be achieved through this effort. But we strongly believe that there is value in reminding ourselves, in the words of the Declaration of Independence, of the truths that we hold to be self-evident.
Erwin Chermerinsky is the dean of the UC Berkeley School of Law and a contributing writer to Opinion Voices. J. Michael Luttig served on the U.S. Court of Appeals for the 4th Circuit from 1991 to 2006; he was appointed by President George H.W. Bush.
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