Locke and Montesquieu

Equality and the Law
The right to equality before the law, or equal protection of the law as it is often phrased, is fundamental to any just and democratic society. Whether rich or poor, ethnic majority or religious minority, political ally of the state or opponent--all are entitled to equal protection before the law.

The democratic state cannot guarantee that life will treat everyone equally, and it has no responsibility to do so. However, writes constitutional law expert John P. Frank, "Under no circumstances should the state impose additional inequalities; it should be required to deal evenly and equally with all of its people."

No one is above the law, which is, after all, the creation of the people, not something imposed upon them. The citizens of a democracy submit to the law because they recognize that, however indirectly, they are submitting to themselves as makers of the law. When laws are established by the people who then have to obey them, both law and democracy are served.

Due Process
In every society throughout history, Frank points out, those who administer the criminal justice system hold power with the potential for abuse and tyranny. In the name of the state, individuals have been imprisoned, had their property seized, and been tortured, exiled and executed without legal justification--and often without any formal charges ever being brought. No democratic society can tolerate such abuses.

Every state must have the power to maintain order and punish criminal acts, but the rules and procedures by which the state enforces its laws must be public and explicit, not secret, arbitrary, or subject to political manipulation by the state.

What are the essential requirements of due process of law in a democracy?

• No one's home can be broken into and searched by the police without a court order showing that there is good cause for such a search. The midnight knock of the secret police has no place in a democracy.
  
• No person shall be held under arrest without explicit, written charges that specify the alleged violation. Not only are persons entitled to know the exact nature of the charge against them, they also must be released immediately, under the doctrine known as habeas corpus, if the court finds that the charge is without justification or the arrest is invalid.
  
• Persons charged with crimes should not be held for protracted periods in prison. They are entitled to a speedy and public trial, and to confront and question their accusers.
  
• The authorities are required to grant bail, or conditional release, to the accused pending trial if there is little likelihood that the suspect will flee or commit other crimes. "Cruel and unusual" punishment, as determined by the traditions and laws of the society, is prohibited.
  
• Persons cannot be compelled to be witnesses against themselves. This prohibition against involuntary self- incrimination must be absolute. As a corollary, the police may not use torture or physical or psychological abuse against suspects under any circumstances. A legal system that bans forced confessions immediately reduces the incentives of the police to use torture, threats, or other forms of abuse to obtain information, since the court will not allow such information to be placed into evidence at the time of trial.
  
• Persons shall not be subject to double jeopardy; that is, they cannot be charged with the same crime twice. Any person tried by a court and found not guilty can never be charged with that same crime again.
  
• Because of their potential for abuse by the authorities, so-called ex post facto laws are also proscribed. These are laws made after the fact so that someone can be charged with a crime even though the act was not illegal at the time it occurred.
  
• Defendants may possess additional protections against coercive acts by the state. In the United States, for example, the accused have a right to a lawyer who represents them in all stages of a criminal proceeding, even if they cannot pay for such legal representation themselves. The police must also inform suspects of their rights at the time of their arrest, including the right to an attorney and the right to remain silent (to avoid self- incrimination).
  

None of these restrictions means that the state lacks the necessary power to enforce the law and punish offenders. On the contrary, the criminal justice system in a democratic society will be effective to the degree that its administration is judged by the population to be fair and protective of individual rights, as well as of the public interest.

Judges may be either appointed or elected to office, and hold office for specified terms or for life. However they are chosen, it is vital that they be independent of the nation's political authority to ensure their impartiality. Judges cannot be removed for trivial or merely political reasons, but only for serious crimes or misdeeds--and then only through a formal procedure, such as impeachment (the bringing of charges) and trial in the legislature.

Constitutions
The rock upon which a democratic government rests is its constitution--the formal statement of its fundamental obligations, limitations, procedures, and institutions. The constitution of the country is the supreme law of the land, and all citizens, prime ministers to peasants alike, are subject to its provisions. At a minimum, the constitution, which is usually codified in a single written document, establishes the authority of the national government, provides guarantees for fundamental human rights, and sets forth the government's basic operating procedures.

Despite their enduring, monumental qualities, constitutions must be capable of change and adaptation if they are to be more than admirable fossils. The world's oldest written constitution, that of the United States, consists of seven brief articles and 27 amendments. This written document, however, is only the foundation for a vast structure of judicial decisions, statutes, presidential actions, and traditional practices that has been erected over the past 200 years--and kept the U.S. Constitution alive and relevant.

This pattern of constitutional evolution takes place in every democracy. In general, there are two schools of thought about the process of amending, or changing, a nation's constitution. One is to adopt a difficult procedure, requiring many steps and large majorities. As a result, the constitution is changed infrequently, and then only for compelling reasons that receive substantial public support. This is the model of the United States, whose Constitution is a brief statement of the general principles, powers, and limits of government, together with a more specific listing of duties, procedures, and, in the Bill of Rights, the fundamental rights of individual citizens.

A much simpler method of amendment, which many nations use, is to provide that any amendment may be adopted by approval of the legislature and passed by the voters at the next election. Constitutions able to be changed in this fashion can be quite lengthy, with specific provisions that differ little from the general body of legislation.

No constitution like America's, written in the 18th century, could have survived unchanged into the late 20th century. Similarly, no constitution in force today will survive into the next century without the capacity for change--while still holding fast to principles of individual rights, due process, and government through the consent of the governed.