Symposium – Executive Overreach and the Rule of Law in Trump II

Due Process or the Rule of Law? Americans Speak a Different Legal Language

The phrase “rule of law” travels easily across borders and languages. In speeches by presidents and popes, in the communiqués of the United Nations and the European Union, it signals something foundational: Law should be general, publicly promulgated, prospective rather than retroactive, and applied by impartial decision-makers. 1 Jeremy Waldron, The Rule of Law, Stanford Encyclopedia of Philosophy Archive (June 22, 2016), https://perma.cc/‌8AKG-9CHH; see also A. Dicey, Introduction To The Study Of The Law Of The Constitution 188-205 (10th ed. 1959). Yet in the United States—arguably the world’s most legalistic society 2 Seymour Martin Lipset, American Exceptionalism: A Double-Edged Sword 20 (1996) (“America began and continues as the most anti-statist, legalistic, and rights-oriented nation.”). —the words “rule of law” stir surprisingly little everyday passion. Ask a Colombian or Chilean law student what stands between democracy and dictatorship and she may invoke el Estado de Derecho (the rule of law). Ask an American law student and you are more likely to hear a different phrase—the due process of law. Right on point, Professor Steve Vladeck recently argued that it is not a “stretch to suggest that due process is what separates democratic legal systems from . . . less democratic legal systems.” 3 Steve Vladeck, Bonus 133: Due Process and the Rule of Law, One First (Mar. 19, 2025), https://perma.cc/‌2GF9-GHEZ. This rule of law versus due process divergence is not accidental; it reflects two distinct historical experiences with threats to constitutional democracy and different visions about how best to conceptualize freedom.

In this Essay, I argue that Americans think fundamentally differently about constitutional threats than do their counterparts in Eastern Europe and Latin America. While Americans have developed a robust conception of due process, rooted in centuries of stable institutional development, they rarely consider constitutional problems through the “rule of law” lens that dominates post-authoritarian societies. This conceptual difference has practical consequences: Elites in post-authoritarian countries are attuned to systemic threats to democratic institutions, while Americans may struggle to respond to wholesale attacks on constitutional governance because their conceptual framework emphasizes process over institutional preservation.

I. Lessons from Shattered Constitutions

Nations that have endured brutal interruptions of democracy possess a visceral sense of what life looks like when law collapses. In Eastern Europe, Soviet-backed regimes taught citizens that courts could be theater, 4 George H. Hodos, Show Trials: Stalinist Purges in Eastern Europe, 1948-1954 (1987). verdicts foreordained, 5 Meelis Maripuu, Cold War Show Trials in Estonia: Justice and Propaganda in the Balance, in Behind the Iron Curtain: Soviet Estonia in the Era of the Cold War 139, 154-169 (Tonu Tannberg ed., 2015). and constitutions printed on tissue paper. 6 In Soviet-backed regimes, constitutions often functioned as semantic constitutions—documents that projected an image of legality and governance but lacked substantive constraints on state power, serving more as ideological instruments than enforceable legal frameworks. See Karl Loewenstein, Reflections on the Value of Constitutions in Our Revolutionary Age, in Constitutions and Constitutional Trends Since World War II: An Examination of Significant Aspects of Postwar Public Law with Particular Reference to the New Constitutions of Western Europe 191, 196-97, 204, 206 (Arnold J. Zurcher ed., 2d ed. 1955). In Latin America, the memories remain vivid of generals who boarded political opponents onto planes and pushed them into the sea, 7 Calvin Sims, Argentine Tells of Dumping ‘Dirty War’ Captives into Sea, N.Y. Times (Mar. 13, 1995), https://perma.cc/‌QF6X-S5WF. or of presidents who simply dissolved congresses 8 For example, Martín Vizcarra of Peru in 2019, Rafael Correa of Ecuador in 2007, Guillermo Lasso of Ecuador in 2023, and Nicolás Maduro of Venezuela in 2017 all dissolved their respective legislatures. See, e.g., Dan Collyns, Peru’s President Dissolves Congress to Push Through Anti-Corruption Reforms, The Guardian (Sep. 30, 2019, 11:16 PM EDT), https://perma.cc/‌PK8B-A9GB; Ecuador’s Correa Says Congress Should Be Dissolved, Reuters (June 23, 2007), https://perma.cc/‌H2UG-7A5S; Venezuela’s New Assembly Declares Itself All-Powerful, CNBC (Aug. 9, 2017, 4:40 AM EDT), https://perma.cc/‌M4MC-KFED. and purged judges. 9 See, e.g., El Salvador Legislative Assembly Removes Supreme Court Judges, Conectas Hum. Rts. (Apr. 5, 2021), https://perma.cc/‌237V-J7JE (detailing the removal of Constitutional Chamber judges by President Bukele’s allies); Venezuela: Chávez Allies Pack Supreme Court, Hum. Rts. Watch (Dec. 13, 2004, 7:00 PM EST), https://perma.cc/‌35KX-GX3B (reporting on the expansion and politicization of Venezuela’s Supreme Court under Chávez); Wilfredo Miranda Aburto, Rosario Murillo Carries Out Great Purge in Nicaragua’s Judiciary, Dismissing Over 900 People, El País (Nov. 16, 2023, 1:10 PM CET), https://perma.cc/‌94Q4-8DSZ (describing the dismissal of over 900 judicial officials in Nicaragua); Bolivia: Dozens of Judges Arbitrarily Dismissed, Hum. Rts. Watch (Apr. 29, 2019, 9:00 AM EDT), https://perma.cc/‌QQS3-7K8R (highlighting the arbitrary dismissal of judges under President Morales); Ecuador: Ensure Judicial Independence, Hum. Rts. Watch (Jan. 29, 2014, 11:44 AM EST), https://perma.cc/‌PUZ6-HQH9 (discussing the removal and appointment of judges during judicial reforms under President Correa). In both regions, autocrats suspended the entire legal order, not just specific procedures. Hence contemporary judges there speak in the language of rule of law as an antidote to past arbitrariness. 10 See, e.g., Ricardo Blanco Herrera, Presidente de la Corte Suprema Ricardo Blanco: “El juez en Chile ha demostrado que es profesional y que no se deja amilanar por presiones internas o externas,” Poder Judicial (Jan. 24, 2024), https://perma.cc/‌G6FY-4YG8; Corte Constitucional [C.C.] [Constitutional Court], abril 27, 2017, Sentencia C-253/17 (Colom.), https://perma.cc/‌P996-JZAX (“The separation of powers . . . aims not only to prevent the infringement of individual liberties by a political regime based on tyranny, but also to enable proper functional specialization through the independent exercise of the powers of each branch or organ of public power. Functional separation, in this sense, serves as an instrument for greater individual freedom . . . .”) (translated by the Author). To these judges, the rule of law means that governmental power must be constrained by law to better protect liberty and democracy.

Schools in Warsaw and Bogotá teach seminars explaining why an independent judiciary matters, how separation of powers can prevent coups, and what constitutional devices shield ordinary citizens from executive whim. 11 See, e.g., Fundamentals of Law 2200‑8P004, University of Warsaw, https://perma.cc/‌EL8N-YY4R (archived July 12, 2025); Foro Académico “Separación de Poderes, Reformas y Control Constitucional,” Universidad Sergio Arboleda, https://perma.cc/‌7E47-SHWZ (archived July 12, 2025). And it is easy to teach those classes with examples that every student would recognize. A Latin American professor might assign accounts of Hugo Chávez’s 2009 order to imprison a judge after she granted bail to a government opponent; 12 See Tightening the Grip: Concentration and Abuse of Power in Chávez’s Venezuela, Hum. Rts. Watch (July 17, 2012), https://perma.cc/‌TP68-78FS. a Czech lecturer might screen footage of political opponents being taken to jail. 13 Czechoslovakia: Wave of Arrests, Time (Mar. 6, 1972, 12:00 AM EST), https://perma.cc/‌3YUT-TZYJ. These examples clarify that the wholesale betrayal of legality and the trampling of judicial independence threaten every liberty downstream. Judges and legal actors in those systems were deterred from upholding constitutional limits on ruling regimes. To this day, when constitutional tribunals clash with governments, foreign newspapers frame the dispute in existential terms: The rule of law itself is under siege. 14 See, e.g., María Jamardo, El Gobierno pone en marcha su plan para controlar el Poder Judicial y desmantelar el Estado de Derecho, El Debate (May 18, 2025), https://perma.cc/‌HLF9-5M59.

Ironically, it was American initiatives that helped cement this institutional focus on the rule of law. Through programs sponsored by the United States Agency for International Development (USAID), the United States exported the “rule of law” language and institutional development frameworks to post-authoritarian societies after the 1960s. 15 Lelia Mooney, Martin Schönteich, Jennifer Windsor & Colette Rausch, Promoting the Rule of Law Abroad: A Conversation on Its Evolution, Setbacks, and Future Challenges, 44 Int’l L. 837, 840 (2010). This export of Anglo-American legal concepts reflects deep historical roots: It was English jurist A.V. Dicey who originated the “rule of law” phrase as a critique of administrative governance in the nineteenth century. 16 See Brian Tamanaha, On the Rule of Law: History, Politics, Theory 63-65 (2004).

Societies in Eastern Europe and Latin America, then, learned to think institutionally about legal collapse because they lived through it, a perspective that shaped their constitutional vocabularies in ways that Americans, lacking this experience, find difficult to fully grasp.

II. The American Inheritance: Due Process as Legal Identity

The United States, by contrast, never experienced a twentieth-century authoritarian rupture. Instead, its history is littered with concerns about following the right legal process. From colonial times forward, English settlers already spoke a language of procedural restraint, because they imported the Magna Carta into their political DNA. What gripped them was not the grand architecture of legality, but one of the rights enumerated in the original 1215 Charter: “No free man is to be arrested, or imprisoned . . . except by the lawful judgment of his peers or by the law of the land.” 17 Magna Carta 1215, cl. 39, Magna Carta Project (emphasis added), https://perma.cc/‌W8Y6-P5AS (archived July 12, 2025). In 1354, this phrase was amended to “due process of law” in a statute that restated the Magna Carta’s guarantees. 18 Magna Carta: Muse and Mentor, Libr. of Cong., https://perma.cc/‌KMB7-28ES (archived July 12, 2025).

By the founding era, the phrase had become central to every major controversy. Federalists and Anti-Federalists clashed over whether the new Constitution gave sufficient protection to the trial by jury of one’s peers and an array of other procedures. 19 The Ratification Debate on the Constitution, Bill of Rights Inst., https://perma.cc/‌Y79Y-Q49F (archived July 12, 2025). Patrick Henry thundered that without explicit protections, “any man may be seized, any property may be taken, in the most arbitrary manner, without evidence or reason. Every thing the most sacred may be searched and ransacked by the strong hand of power.” 20 David H. Gans, Const. Accountability Ctr., “We Do Not Want to Be Hunted”: The Right to be Secure and Our Constitutional Story of Race and Policing 12 (2020) (quoting 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 588 (Jonathan Elliot ed., 1836)). Virginians and others pushed for a Bill of Rights that is almost a due process pamphlet: The Fourth Amendment guards against unreasonable searches, the Fifth enshrines grand jury indictment and bans double jeopardy, the Sixth mandates speedy trials and impartial juries. 21 U.S. Const. amends. IV-VI. Even debates over the alien and sedition laws, 22 Stuart Leibiger, The Alien and Sedition Acts, Bill of Rights Inst., https://perma.cc/‌JDE2-KSP9 (archived July 12, 2025). Lincoln’s suspension of habeas corpus, 23 A Proclamation on the Suspension of Habeas Corpus, 1862: A Spotlight on a Primary Source by Abraham Lincoln, Gilder Lehrman Inst. Am. Hist., https://perma.cc/‌T8WY-384F (archived July 12, 2025). or the Guantánamo detainee cases of the twenty-first century 24 See, e.g., Boumediene v. Bush, 553 U.S. 723, 732 (2008). have turned on the same key question: Was process properly observed?

In the civil context, too, due process reigns supreme. The Supreme Court’s Goldberg v. Kelly decision capped a series of cases—hailed as a due process revolution—by declaring that even welfare benefits are a protected property interest and may not be cut off without due process. 25 Goldberg v. Kelly, 397 U.S. 254, 255, 269-70 (1970). The Court noted that some basic procedural ingredients include advance notice and a hearing where recipients can present evidence. 26 Erwin Chemerinsky, Constitutional Law: Principles and Policies 591 (6th ed. 2019) (“Procedural due process, as the phrase implies, refers to the procedures that the government must follow before it deprives a person of life, liberty, or property. Classic procedural due process issues concern what kind of notice and what form of hearing the government must provide when it takes a particular action.”). Indeed, law students spend much of their first year of law school learning procedural doctrines, like personal jurisdiction, rooted in the Due Process Clause. 27 See Pennoyer v. Neff, 95 U.S. 714, 733 (1877).

This American obsession with due process expanded beyond procedural protections. When the Supreme Court recognized increasingly broad rights to reproductive freedom, including in the now-overturned Roe v. Wade, it rooted them in substantive due process, an approach to constitutional rights protection that is largely unique to American jurisprudence. 28 Roe v. Wade, 410 U.S. 113, 164 (1973).

This procedural mindset is not confined to legal elites; it has spread throughout American popular culture. Americans may not always use the phrase “due process,” but they instinctively invoke its components: the right to your “day in court,” or to avoid “double jeopardy”—phrases popularized by countless legal dramas. 29 Cf. Carrie Menkel-Meadow, Can They Do That? Legal Ethics in Popular Culture: Of Character and Acts, 48 UCLA L. Rev. 1305, 1315-25 (2001) (collecting legal dramas and discussing the portrayal of attorney ethics). Television shows about criminal investigations reinforce procedural thinking by focusing on whether evidence was properly obtained, whether suspects were told their rights, and whether trials followed proper form. 30 See Id. Not for nothing, Justice Rehnquist noted that the procedural Miranda warnings had “become part of our national culture.” 31 Dickerson v. United States, 530 U.S. 428, 443 (2000).

Because of this inheritance, Americans intuitively hear the rule of law as somewhat abstract—perhaps a slogan brandished by presidents when criticizing foreign autocrats. Due process, though, feels personal—a safeguard against unjust treatment, arrest, or prosecution. It evokes the right to your Miranda rights, to confront witnesses, to receive notice of charges, to have a neutral magistrate. If a police officer searches your home without a warrant, you object that your “due process rights” were violated; you don’t say the officer offended the “rule of law.” Because Americans did not have to fight for the basic survival of democratic institutions in recent memory, legal reformers could focus their energies on refining procedural protections.

To capture this mindset, Steve Vladeck recently quoted the following Justice Robert Jackson defense of due process:

Only the untaught layman or the charlatan lawyer can answer that procedures matter not. Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied. Indeed, if put to the choice, one might well prefer to live under Soviet substantive law applied in good faith by our common-law procedures than under our substantive law enforced by Soviet procedural practices. Let it not be overlooked that due process of law is not for the sole benefit of an accused. It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice but which are bound to occur on ex parte consideration.

. . . .

. . . There are other differences, to be sure, between authoritarian procedure and common law, but differences in the process of administration make all the difference between a reign of terror and one of law. 32 Vladeck, supra note 3 (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 224-226 (1953) (Jackson, J., dissenting)).

Jackson’s framework exemplifies the American view: Even when comparing American and Soviet systems, the focus remains on procedural differences rather than institutional architecture. This procedural lens, while valuable, can create blind spots when legal institutions themselves come under coordinated attack.

III. Language and the Stakes of Legal Messaging

Public messages need to take these linguistic differences into account. American politicians who ask citizens to “defend the rule of law” may worry that the phrase lands like jargon. Invoking “due process” resonates more immediately. The mirror image occurs abroad. When the European Union threatens to suspend funding to member states that undermine judicial independence, it frames its ultimatum in “rule of law” terms because that language mobilizes local publics who recall the alternative. 33 Zselyke Csaky, Ctr. for Eur. Reform, Freezing EU Funds: An Effective Tool to Enforce the Rule of Law? 1-2 (2025), https://perma.cc/‌96P4-9G8G.

None of this means the United States lacks a concept of the rule of law. Sometimes the phrase “separation of powers” is used to capture some of it. 34 See, e.g., Gabriel Rubin, Separation of Powers Is on Trial in the U.S., Reuters (Feb. 14, 2025, 7:38 AM PST), https://perma.cc/‌AS82-Z2CK. And, after all, the Supreme Court’s sweeping pronouncements in Marbury v. Madison built the modern rule of law, with its declaration that no branch outranks the Constitution. 35 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803). As mentioned above, most ironically of all, recent democracies partly focus on the “rule of law” because U.S. programs exported this language in the 1960s, 70s, 80s, and 90s. 36 Mooney, supra note 15, at 840-41. Nor does it imply that Latin Americans or Eastern Europeans ignore procedural fairness. 37 See, e.g., Arnel Medina-Cuenca, Ernesto Salcedo-Ortega & Omar Huertas-Díaz, Debido proceso e independencia judicial en América Latina, 19 Dixi 37, 42 (2017); Cristina Teleki, Due Process and Fair Trial in EU Competition Law: The Impact of Article 6 of the European Convention on Human Rights 1 (2021). The distinction is one of emphasis and emotional register, born of divergent experiences.

Moreover, the distinction between the rule of law and due process is deeper than rhetorical preference. While both concepts aim at securing freedom, the rule of law expresses a broader institutional vision about how governance should operate along with a set of robust requirements (impartiality, consistency, and so on). 38 Waldron, supra note 1; Martin P. Golding, Transitional Regimes and the Rule of Law, 9 Ratio Juris 387, 389 (1996). Due process, by contrast, is a component of the rule of law that ensures the machinery of government is fairly applied in individual cases 39 Diane P. Wood, Laurence H. Tribe, Frank H. Easterbrook & Geoffrey R. Stone, The Invisible Constitution and the Rule of Law, 59 Bull. Am. Acad. Arts & Sci. 59, 59 (2009) (“From a procedural standpoint, the rule of law requires what Americans tend to call due process; that is to say, the right to the opportunity to be heard before an impartial decision maker.”). (although substantive due process goes beyond that). The rule of law is institutional and collective, while due process is individual and invoked in concrete cases.

Nonetheless, the stakes of this rule of law versus due process linguistic divide are high. At worst, Americans’ focus on procedure can create blind spots when democratic institutions themselves come under systematic attack. When courts are weakened, statutory obligations ignored, or when executive power expands beyond constitutional bounds, Americans may struggle to recognize these as systemic threats to democratic governance rather than isolated procedural violations. The absence of authoritarianism in recent American history, an amazing fortune, has made it harder to perceive systemic democratic backsliding. Americans excel at defending individual procedural rights but struggle to mobilize around institutional preservation. When rule of law erosion occurs gradually through legal-seeming mechanisms, the procedural mindset can be myopic.

Legal elites should make clear to the public that due process is foundational because it preserves the rule of law. One protects the architecture of democratic government; the other guarantees fairness to the individual caught in that architecture’s machinery. Countries fresh from the nightmare of authoritarianism naturally emphasize the latter while nations steeped in centuries of stable governance fixate on the former. For Americans accustomed to thinking procedurally, recognizing institutional threats requires conscious effort to adopt the broader “rule of law” perspective that other democracies developed through experience. But, and here’s the key, contemporary threats menace both structures and procedures simultaneously. So, when Americans intone the time-honored cry of “due process,” they are—in effect—guarding the rule of law itself.

*Professor of Law, Stanford Law School.