RESTRAINING GOVERNMENT
Andrew Napolitano: http://www.wnd.com/2012/07/the-rule-of-law/
The greatest distinguishing factor between countries in which there is some freedom and those where authoritarian governments manage personal behavior is the rule of law. The idea that the very laws that the government is charged with enforcing could restrain the government itself is uniquely Western and was accepted with near unanimity at the time of the creation of the American republic. Without that concept underlying the exercise of governmental power, there is little hope for freedom.
The rule of law is a three-legged stool upon which freedom sits. The first leg requires that all laws be enacted in advance of the behavior they seek to regulate and be crafted and promulgated in public by a legitimate authority. The goal of all laws must be the preservation of individual freedom. A law is not legitimate if it is written by an evil genius in secret or if it punishes behavior that was lawful when the behavior took place or if its goal is to solidify the strength of those in power. It also is not legitimate if it is written by the president instead of Congress.
The second leg is that no one is above the law and no one is beneath it. Thus, the law’s restraints on force and fraud need to restrain everyone equally, and the law’s protections against force and fraud must protect everyone equally. This leg removes from the discretion of those who enforce the law the ability to enforce it or to afford its protections selectively. This principle also requires that the law enforcers enforce the law against themselves. Of course, this was not always the case. In 1628, the British Parliament spent days debating the question “Is the king above the rule of law, or is the rule of law above the king?” Thankfully, the king lost – but only by 10 votes out of several hundred cast.
The third leg of the rule of law requires that the structures that promulgate, enforce and interpret law be so fundamental – Congress writes the laws, the president enforces the laws, the courts interpret the laws – that they cannot be changed retroactively or overnight by the folks who administer them. Stated differently, this leg mandates that only a broad consensus can change the goals or values or structures used to implement the laws; they cannot be changed by atrophy or neglect or crisis.
The values in America are set forth in the Declaration of Independence, and the governmental structures in America are set forth in the Constitution. The former – that our rights are inalienable and come from our Creator and not from the government – is not merely a recitation of Thomas Jefferson’s musings. The Declaration is the articulation of our values then and now, and it, too, is the law of the land.
The Constitution was written – largely by James Madison – to define and to limit the federal government, and it was quickly amended by adding the Bill of Rights so as to be sure that natural rights would be respected by the government. This tension between the power of the majority – at the ballot box or in Congress – and the rights of the minority – whether a discrete class of persons or a minority of one – is known as the Madisonian dilemma. Stated differently, the Constitution provides for protection against the tyranny of the majority.
In our system, the power to resolve the dilemma is reposed into the hands of the judiciary, and those who have that power are to resolve it without regard to popularity or politics. Their oath is to the Constitution. They have the final say on what the laws mean. If they follow the rule of law, they will invalidate that which the government has done and which is properly challenged before them and which is not authorized by the Constitution. Their very purpose is to be anti-democratic, lest the popular majority takes whatever lives, liberties or property it covets. In return for life tenure, we expect judicial modesty, and we demand constitutional fidelity – not political compromise.
In our era, the violations of the rule of law have become most troublesome when the government breaks its own laws. Prosecute Roger Clemens for lying to Congress? What about all the lies Congress tells? Prosecute John Edwards for cheating? What about all the cheating in Congress when it enacts laws it hasn’t read? Bring the troops home from the Middle East? What about all the innocents killed secretly by the president using CIA drones? Can’t find a way to justify Obamacare under the Constitution? Why not call it what its proponents insisted it isn’t – a tax?
We live in perilous times. The president acts above the rule of law and fights his own wars. Congress acts below the rule of law by letting the president do whatever he can get away with. And this summer, the Supreme Court rewrote the rule of law.
What do we do about it?
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Timothy Adams
“We” do nothing, they never have, they never will, and once impoverished and desperate, they will be unable to….and the elite have already planned on that.
Abritt
“What do we do about it?” Find about 550 really strong oak trees
A.ndrew, you missed a great corollary to today’s situation. The close vote in Parliament is 1628 is essentially the same as the close vote in Congress regarding the ObamaCare monstrosity. Almost half of the Parliament wanted the King (the government) to have unlimited power unconstrained by law, viewing him like some kind of demi-god who could do no wrong (or like the secular version of the “the Holy Roman Father, The Pope”) People are the same today and the struggle is the same. Those who assert their individual rights and those who defend the Divine Right of Kings. Hopefully the next election will be like the vote in Parliament and the king-government will be put back in its proper place.
All_American_American
Its simple—the Constitution set limits on the Federal Government at the time it was ratified. It left near limitless the freedoms enjoyed by the States and the People. Now, we have too many Americans (use that term lightly) who believe it is the Federal Government’s responsibility to limit us while the govt itself enjoys near limitless power.
J W Majors Majors
Roberts re-wrote the statute,but also added to the Constitution a category of tax not authorized by the Constitution. You could call it the needed tax. The center cannot hold and it is all coming down.
No, no. Call it the “penalty tax”. When the Highway Patrol pulls you over for speeding, he issues you a speeding tax. when you pay the government your fair share of your income on April 15th, you are paying your income penalty or your income punishment. It’s all the same. Words have no meaning.
The president gets to make up his own reality about rules and limits on power. “‘When I
use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it
to mean — neither more nor less.'” Mr. Dumpty, meet Mr. Obama.
Robert Burkholder Collapse
I am not skilled in the metaphysical refinements that according to Jefferson can make anything mean everything or nothing at will–that both Jefferson ,then Joseph Story seemed agree were
“out of place” in understanding our Constitution (a type of Law) and Laws( as spoken of by Jefferson) But I think I like American Law better when our schools taught human laws were invalid when they violated /ran contrary to -the Laws dictated by God Himself. I. E. the America
I thought we trained to defend as soldiers was One Nation under God Indivisible. And we took a solemn Oath ,or affirmation to defend our (written ) Constitution.It seems we encourage great harm when we allow men claim they honor their oath by defending a Constitution that means only what some Court claims it sees when those terms used do NOT reflect the meaning of the terms used when the law was adopted. We have No Living Constitution whose meaning is merely defined by the Court on basis of convenience /Court construct.
News Junkie
Not so long ago men commonly understood that “Rules of Law” have no meaning unless they originate with an omnipotent and avenging God, Whom men must obey under pain of eternal damnation. For once the notion of “Rules of Law” becomes detached from God as the author of life and the ultimate judge of all wrongs, on what ground can one stand to say that there is a “right” to anything under a “Rule of Law” — even a right to life? Can one stand on “the dignity of the human person”-? What does “human dignity” mean without God? Nothing more than what men agree that it means. Without God there are no true “Rules of Law” nor rights, but only agreements. And whenever the agreements become inconvenient, the doors to the gulags and the abortuaries swing open. When our founders gave us “Freedom of Religion” it morphed into “Freedom From Religion” because man failed the One True Triune God Who is the Author of all life/creation. You simply cannot have Freedom of Religion because there is only “One Religion”-!This is the chief flaw in the Constitution. As a result you are getting, today, the New World Order or as it truly is: “The New Tower of Babel.” Which the Triune God will not permit-!! The [only] thing BO ever said that I agree with is that America never was a Christian Nation….God love you
The Seeds of Destruction 