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Rule of Law

The Rule of Law is the foundation for constitutional government and a flourishing civil society. Learn More... Statement of Purpose The American justice system suffers from a prevailing judicial philosophy that treats judging as politics by another name; a dangerous trend to “over-criminalize”—that is, to criminalize conduct that is socially and economically beneficial or is better regulated by the civil justice system or administrative means; and a civil litigation system run amok by frivolous lawsuits and outrageous damage rewards.

To address these three major issues, we seek to reform the “imperial judiciary,” which usurps power that belongs to the political branches of government and wrongly interferes with Heritage’s vision for America. To do this, we must restore the courts to their constitutional role, which is to protect individual liberty, property rights, and free enterprise, and to enforce the constitutional limits on government. We also seek to reverse the dangerous trend to criminalize almost everything. To do this, we must remind legislators of the proper lines between federal and state control, and we must restore the traditional protections afforded the accused by the criminal justice system. Finally we seek to reform America’s civil justice system by restoring it to its traditional role, which is to fairly enforce contracts and property rights, justly mediate disputes involving claims of injury or damage, and follow the rules involving private disputes established by the legislature.

Featured Research

Featured research chosen by Heritage Foundation experts in the rule of law:

Absentee Ballot Fraud: A Stolen Election in Greene County, Alabama

The 1994 Greene County, Alabama, election fraud case shows how easily crooked politicians can abuse absentee ballots to disenfranchise voters. Because the risk of fraud is so high, absentee ballots should be available only to those who truly need them. Additional common-sense steps like signature matching and ID requirements also reduce the risk of stolen elections.

By Hans A. von Spakovsky

Making It a Federal Case: An Inside View of the Pressures to Federalize Crime

A lack of public understanding of the problem of over-federalization results in political pressures that make it difficult for the executive branch to combat the problem. Reform must be pursued incrementally for now, and reform advocates should focus on making the practical benefits of federalism part of the public discourse while eliminating the most egregious examples of over-federalization.

By Rachel Brand

The Senate's ADA Amendments Act: Only Half Bad

Now is not the right time to expand ADA coverage, but if legislation is inevitable, Congress should still reject approaches that muddy the meaning of the law and would inflict unnecessary pain across the economy.

By Andrew M. Grossman

Latest Research

This is the freshest research on the rule of law written by Heritage Foundation experts:

Constitutional Ineligibility: What Does the Emoluments Clause Mean?

December 3, 2008

Determined to avoid corruption and self-dealing in the legislative process, the Framers kept all appointive powers out of the hands of Congress. (See Article II, Section 2, Clause 2.) But corruption could come not only from self-dealing but also from the blandishments of the executive.

By David F. Forte

Inaugural Tickets for Sale? Overcriminalization Strikes Again

November 20, 2008

A new bill introduced by Senator Diane Feinstein (D–CA) would criminalize the sale of inaugural tickets. This sort of knee-jerk criminalization has led to the proliferation of criminal offenses. This broadening of the criminal law cheapens the notion of crime and reduces the law's deterrent effect.

By Andrew M. Grossman

Democracy in Danger: Case Studies of Election Fraud

October 28, 2008

The right to vote in a free and fair election is the most basic civil right, on which depends all of the other rights of the American people protected by the Bill of Rights. As the Supreme Court noted in 2008, however, flagrant examples of voter fraud "have been documented throughout this Nation's history by respected historians and journalists." Those examples "demonstrate that not only is the risk of voter fraud real but that it could affect the outcome of a close election."

By Hans A. von Spakovsky

More Research...

Grand Theft Class Action: Game Over

December 22, 2008

A July 30 decision likely spelled the end of a class-action suit against the makers of the popular Grand Theft Auto videogame series for a sexually explicit "minigame" hidden in one of its episodes. Within that decision may be an insight into how judges think about a certain class of cases that capture public attention.

By Andrew M. Grossman

Obama's Ideas for a Radical Court

October 29, 2008

In a 2001 radio interview that's just come to light, Barack Obama discussed the Supreme Court's role in redistributing wealth. Call it Obama's "Joe the Plumber meets Justice Brennan" moment.

By Robert Alt

Misunderstanding the Role of Judges

October 25, 2008

In his recent endorsement of Barack Obama, Colin Powell mused: "I would have difficulty with two more conservative appointments to the Supreme Court, but that's what we'd be looking at in a McCain administration."

By Deborah O'Malley

Looking for Law in All the Wrong Places

October 9, 2008

Some Supreme Court justices have taken to using international law as a reference point to interpret provisions of the U.S. Constitution. Yale Law School Dean Harold Koh applauds the practice, hailing these justices for ushering in the dawn of a "transnationalist jurisprudence."

By Deborah A. O'Malley

A Tale of Two Hackers

September 23, 2008

Consider two cases. In one, a suburban housewife posed as a teenage boy on MySpace to learn more about her daughter’s on-again, off-again friend. In the other, a gang of computer geeks broke into the personal e-mail account of a vice-presidential candidate because they were seeking smear material

By Andrew Grossman

More Research...

The Tweety Bird Defense

12/31/2008

Those who remember the Warren Court recall imaginative renderings of the constitution to expand criminal’s rights coupled with outright judicial hostility to police. The result was a national crime wave only recently curbed by new police techniques and more favorable rulings from the Supreme Court. Now that Barack Obama has identified Earl Warren as a Read More...

Double Standards In Minnesota Will Lead to Florida Repeat

12/23/2008

Having been a county election official myself many years ago, I know how difficult it can be to administer an election and make the proper decisions when problems ensue. However, the flawed and extremely questionable decisions being rendered by the Minnesota Canvassing Board are remarkable for their inconsistency except for one consistency – they seem Read More...

Crack Clogs

12/18/2008

In April 2007, the U.S. Sentencing Commission lowered the sentencing guidelines for crack. That move was largely uncontroversial as there was wide bipartisan belief that the 100-to-1 crack-to-powder ratio for cocaine offenses were too harsh. More controversial, however, was the Commission’s decision to make the lower sentences retroactive. This past February Attorney General Michael Mukasey Read More...

Fitzgerald’s Priorities Prudent ? This Time

12/11/2008

The arrest of Illinois Governor Rod Blagojevich and his chief of staff, John Harris, may end up being one of the most serious public corruption cases prosecuted by the Justice Department in many years. The 78-page complaint and accompanying affidavit of FBI Special Agent Daniel Cain reads like something out of a Mickey Spillane Read More...

Auto Bailout Includes Kelo-Style Unconstitutional Takings

12/10/2008

A key provision of proposed legislation to bailout General Motors and Chrysler, which say they are on the brink of insolvency, may be an unconstitutional taking of private property. The Takings Clause of the Constitution has been the subject of considerable public interest since the Supreme Court’s Kelo decision involving the taking of a private Read More...

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