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This I Believe: The Rule of Law

Posted by Rick · June 5th, 2006 · No Comments

Michael Mullane, of NPR, has written a radio piece titled The Rule of Law that pretty much sums up why I want to keep writing articles here at Unspun™ as long and often as I can. Anyone who regularly reads this blog is probably tired of the too-frequent whines, wherein I consider not writing anymore because people aren’t listening anyway, America is going to hell in a hand-basket (actually, more like a speeding trolley car) and so on.

The thing is, as Mullane points out, the rule of law is critical to a functioning democratic republic. The Founders of our once-great nation understood this. That’s why they spent so much time hammering out the details of how the republic was to function. And as I see both the original plan and the entire concept of the rule of law being eroded, it drives me to distraction.

When many people think of the Constitution, they may not realize the reason for the name. But the reason the Constitution is called the Constitution is because that document constitutes the United States of America. And, of course, “to constitute” a government means “to set up” or “to formally establish” the government.

What kind of government should the United States have? Do we want a government where people can only do what the government allows them to do? Or do we want a government that can only do what we, the People, allow it to do? Do we want a government that controls every aspect of our lives? Do we want a government where everyone can pretty much do whatever they want, so long as they don’t hurt or interfere significantly with the lives of others? Who has the power? What kind of power do they have?

These are the kind of questions that are answered by a constitution.

These days, as I study for the Bar particularly, I need to keep my mind on the fact that I don’t have a lot of time for these blog articles. Without going deeply into the history and/or the argument for it, the Constitution of the United States established our nation as a nation “of laws and not of men.”

Thus, the United States supposedly operates according to the Rule of Law. The Massachusetts Constitution, as the Wikipedia article just linked points out, stated:

In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men. — Massachusetts Constitution, Part The First, art. XXX (1780).

As the United States Constitution had done, so, too, the Massachusetts Constitution did — Massachusetts just states more clearly the reason why.

And what did it do? It divided power among the different “branches” of government. People often complain about “courts legislating” and they say courts aren’t supposed to do that.

This is true, but the courts are responsible for making sure that the legislating which is done is done in a consistent and predictable way. Therefore, the courts do clearly and deliberately — that is, it was part of the original plan — have some power to direct how things work in our form of government.

One christian website claims that it is a fallacy to believe in the rule of law. In reality, this website argues, good christian men should rule the world, because good christian men will do the right thing even if the laws are bad. I’m not sure at all where the evidence for this is — particularly since even Hitler claimed to be doing the work of Jesus — but I guess if christians succeed in obliterating our democratic republic and enforcing their world-views on us, during the next set of pogroms, one of them might explain it to me.

If anything proves Mullane’s point, this “christian” view is it. The Rule of Law is a fragile thing. As the United States Supreme Court noted in Youngstown Co. v. Sawyer, 343 U.S. 579 (1952),

[O]urs is a government of laws, not of men, and…we submit ourselves to rulers only if under rules.Youngstown, supra, 343 U.S. at 646 (emphasis added).

But today, as in 1952 — and countless other times — there are people arguing for “nebulous, inherent powers never expressly granted but said to have accrued to the office.” (Youngstown, supra, 343 U.S. at 646.) Too often we hear…

…[a] plea…for a resulting power to deal with a crisis or an emergency according to the necessities of the case, the unarticulated assumption being that necessity knows no law.

Loose and irresponsible use of adjectives colors all nonlegal and much legal discussion of presidential powers. “Inherent” powers, “implied” powers, “incidental” powers, “plenary” powers, “war” powers and “emergency” powers are used, often interchangeably and without fixed or ascertainable meanings. — Youngstown, supra, 343 U.S. at 646-647.

Strange how the more things change, the more they stay the same.

And that’s just one reason why I have to keep writing. I hope the rest of you will keep reading — not just my blog, but the Constitution — and please, contact your representatives in Congress. Tell them how you feel.

Don’t let the rule of law be subverted by the rule of men, not even reformed coke addicts, alcoholics, and other christian men. Remember: Absolute power corrupts absolutely.

Categories: Law and Legal Issues


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