Monday, August 31, 2015
Rule of Law
The Rule of Law is defined as “the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws.” In the Declaration of Independence, the Rule of Law is referred to as being “The Laws of Nature and of Nature’s God.” The principles of the American System find much of their foundation in the writings of John Locke, an English political philosopher during the 1600s, who expressed a view that government is obligated to serve the people, primarily by protecting life, liberty and property. In order for the government to be restrained enough to serve the people, the system would need to be representative, and subject to a series of checks and balances. Locke’s preference was that the law, the standard on which the government system in question would need to be subordinated to, was written in the form of a constitution, and for that constitution to be guided by Divine Providence, and serve as the Law of the Land.
According to John Locke, the Rule of Law is inherent, making our rights God-given, and self-evident. The principles that stem from the laws of nature and of nature’s God serve as the parameters of law, be they the authorities granted to government, or the restrictions necessary to restrain the greed for power by tyrants. Without government there is anarchy, a condition that always transitions into a tyrannical oligarchy. When there is too much government, there is too much political oppression, which also leads to a tyrannical oligarchy.
As the Founding Fathers were establishing the government in the former English Colonies, they realized that the government they agreed upon during the Revolutionary War was too weak. The central government had no power under the Articles of Confederation, and the States naturally held all of the power. Historically, central governments concentrate all of the power at the top, forming a ruling elite that always became tyrannical and rules from the top down. What the founders were seeking was a system that located a balanced center, where a central government was formed, but restrained by the chains of the Rule of Law, as recognized by the people, and maintained through their States.
A consolidated national government was preferred by some of the men of early America, because they doubted the wisdom of establishing a representative government that gave too much power to the people. Democracies, after all, always committed suicide. A Democracy, which puts all power into the hands of the people, always results in mob-rule, and ultimately, a tyrannical oligarchy.
A federal system was preferred by the majority of the delegates in attendance at the Constitutional Convention in 1787. The likelihood of the happiness and prosperity of the United States would be greater under a federal system, the supporters of federalism contended. The need was to “form a more perfect union,” while protecting, preserving, and promoting the individuality of the various States.
The Articles of Confederation was a limited association. A national government, it was feared, would establish a supreme power that would eventually discard the Rule of Law, and instead resort to ruling in accordance to the rule of man. Under the rule of man, the laws of Nature’s God would be in jeopardy, changing often based on the fickled whims of men. Instead of the law existing as a strict standard, the law would be considered as being living and breathing, and able to be changed by the opinions of important politicians, or powerful judges.
The Rule of Law, as applied through a federal system, would serve as the First Principle of a free and just government. John Adams explained the opinion of the Founding Fathers regarding the Rule of Law when he wrote that good government and the very definition of a republic “is an empire of laws.” By requiring the leaders to enact and publish the law, and to adhere to the same law that applies to each citizen, the Rule of Law acts as a potent barrier against tyrannical and arbitrary government.
When a society exists under the Rule of Law, the system requires that the same law governs all citizens. Samuel Adams observed that the Rule of Law means that “There shall be one rule of Justice for the rich and the poor; for the favorite of the Court, and the Countryman at the Plough.”
By requiring both the government and the people to adhere to the law, the Rule of Law serves as the foundational First Principle for protecting our liberty.
The Anti-federalists argued that creating a federal government opened up the opportunity for tyranny. Those that defended the Constitution through speeches and essays (like the Federalist Papers) made the case that though a federal government could potentially lead to a tyrannical system, the complete lack of a federal government was an even more dangerous proposition. If the States had not united against the British Empire, the Revolutionary War would never have been won. As a nation, without a central government wielding enough power to field an army, or tax in order to pay for that army, the new country would not long survive. The Articles of Confederation proved to be too weak in the face of Shays’ Rebellion.
For the external issues, such as common defense, the new country of united States required a lion, and the Articles of Confederation gave the thirteen States a lamb. However, the problem with lions is that if you let them, they will eat you. The predicament created a puzzle dating back to the beginning of time. How can a free people establish a central government as strong as a lion, yet restrain it in such a way that it does not turn against the populous?
The former colonies were free and independent States. The individual-centric nature of State Sovereignty is the source of our freedom, and must be a part of the foundation of the new government. The concepts of liberty provided for in the Declaration of Independence were obligatory, as far as the founders were concerned, and the solid foundation of a government that protects the individual sovereignty of the States, and the citizens, must be the Rule of Law.
The concept of an individual-centric society was inherited by the Americans, based on a Saxon system of individualism based on land ownership. The Saxons in England considered themselves to be a commonwealth of freemen who existed in liberty under the auspices of the Rule of Law as defined by Nature’s God. Leadership was required to make their decisions by the consent of the governed, and the laws by which the people were governed were considered to be natural laws provided by divine dispensation.
Over time, the power became concentrated in the monarchy. The English believed power to be temporarily granted, and since nobody was above the law, the people had the right to remove rulers from their lofty positions when necessary. When the Saxon system of individual-centric government was under threat, the people put the principles of limited government in writing, producing the Magna Carta in 1215. With the principles of honest government in writing, it would be more difficult for tyrants to trample on the rights of the individual.
In 1688, the leadership of England was once again put on notice, and an ill-conceived plan to force absolute rule on the liberty-loving English was thwarted. The end result of the Glorious Revolution was the English Bill of Rights, a written charter guaranteeing God-given rights to all Englishmen.
The events in England, guided by the desire to be ruled by the Rule of Law as inspired by Divine Providence, rather than the tyrannical rule of man, set in motion the creation of the foundation for the system that would be designed during the American Constitutional Convention in 1787.
During the Revolutionary War, the patriots of the English Colonies had determined the British Empire was being ruled by despotic men, and the concept of the Rule of Law had been discarded. From the point of view of the revolutionaries, the King believed Britain and the colonies to be his realm, therefore the concept of property ownership should only be limited to a small group of land owners that had earned favor with The Crown. It was parliament’s job to determine the laws and taxes the colonists should live under, regardless of representation. Britain claimed the colonies enjoyed virtual representation, but in the end, the King, the nobles, and the judges had complete power over making law, and imposing taxes.
The British Empire had become an oligarchy, and the consent of the governed across the Atlantic Ocean was considered irrelevant by the ruling elite in England. After the Revolutionary War, the framers of the United States Constitution understood that a nation ruled by an oligarchy of political elite is not compatible with a society that champions liberty, and individual rights. The government they aimed to create needed to be individual-centric, and one that was founded upon the concept of the Rule of Law, if it was going to protect the rights of the people, and preserve the individual ownership of property.
A nation throwing off the bonds of oligarchy, and embracing self-rule, however, did not mean that the United States would be a democracy. Though some democratic functions exists in America’s mixed constitution, the United States is not a pure democracy. A Democracy is a system of government ruled completely by the people. All laws and governmental functions, in such a system, are determined by the whims of the people, and their direct vote. Historically, democracies are transitional governments that, when the people seek a governmental system more efficient and stable than their fickled democracies, become oligarchies, or a governmental system characterized by the many being ruled over by a few political elites. Therefore, the founders did not desire to create a democratic governmental system. Ultimately, a democracy always breaks down, and the system that replaces it centralizes, becoming nothing more than a system like the monarchy that the Americans had fought so hard against in order to gain independence.
The conclusion was that the United States must not be subject to the laws of men, be subjected to the rule of men, or open itself up to become an oligarchy by creating a system that enables too much power to be granted to a single person, group of people, or governmental entity. The new country needed to be a nation subject to the laws of God, governed by the Rule of Law, and have a republican form of government that features a representative system of governance. The States, and the people, hold sovereign power. The federal government is designed to be limited to authorities only necessary for protecting, preserving and promoting the union. All other authorities, specifically those authorities that would address issues directly affecting the people, is the responsibility of the States, and the local governments, where the people have more control over governmental functions.
To achieve their goal, the Founding Fathers determined that the components of the new federal government, as opposed to being a national government, would need to be one with three separate branches of government, whose powers are separated so that no collusion between the branches would be possible, with numerous checks and balances to ensure no part of government wields too much power, have a limitation of authorities to the federal government granted by the States, provide due process of the law with the right of a trial by jury, and be a system that ensures that the federal government does not betray the unalienable rights of the people of the United States.
The American Form of Government, when operated in pursuance of its constitution, serves as a protector of the fires of liberty by preserving the union of States, and ensuring that individual freedoms and state sovereignty maintain a voice in the system. The Rule of Law was based on God’s Law, and the Rule of Law was articulated in the Constitution to serve as the Supreme Law of the Land.
Not everyone supported the principles contained on the pages of the United States Constitution. The federalists, after losing the Presidency, and Congress, in 1800, realized that their attempt to grow government by political means was a failure. President John Adams, in an attempt to preserve some of the power of the Federalist Party before Thomas Jefferson was able to take the office of the presidency, created new judicial offices, appointing as many new judges as possible. Adams’ flurry of judicial appointments shortly before departing from his presidency is historically called, “the appointment of midnight judges.”
John Adams’ expansion of the judiciary through the appointment of midnight judges was called by Jefferson's Democratic-Republicans "appalling." In Jefferson's view, the Federalists "retired into the judiciary as a stronghold . . . and from that battery all the works of Republicanism are to be beaten down and destroyed."
By the 1820s, the Federalists became irrelevant, and faded into history as the party became incapable of winning any elections. But, their statist idealism lived on, and still does today, in a federal court system strengthened by John Marshall, the Chief Justice of the Supreme Court appointed by John Adams in 1801. The judicial branch, under Marshall, changed the face of the American System, catapulting the federal court system to the top of the political food chain through a series of court rulings that misrepresented the powers of the judiciary. These rulings, along with a series of bullying tactics from the bench, flipped the hierarchy of government, changing the dynamics of federal government, and thwarting it toward tyranny through judicial fiat. Marshall was the longest serving Chief Justice in American history, giving him plenty of years to orchestrate damage to the original principles of the United States Constitution, and changing the definition of the Rule of Law.
John Marshall repeatedly confirmed his opinion that all federal law is supreme over all State law, and redefined "The Rule of Law" to mean the same as “The Rule of the Courts.” He instructed that judicial decisions were the components that makes up the rule of law because judges were the people tasked with ruling on the law.
John Marshall redefined the American System, putting in place the mechanism that would increase the power of the courts, and alter the definition of the Rule of Law. The original intent of the States serving as the final arbiters of the Constitution was replaced by judicial review, establishing case law as the rule of law – making the rule of law based on the opinions of men, or more accurately, changing our system to one that is governed by the rule of man through a judicial oligarchy.
Figuratively speaking, once a society abandons the Rule of Law, and replaces it with the rule of man, it is not very long before they begin dancing around a golden calf.
The Founding Fathers knew that the courts were a danger, and in the beginning, the Judicial Branch was the weakest of the three branches of government. The Rule of Law is based on Nature's Law, and what the written Law of the Land is, not the wavering interpretation of the law by men seeking power. When the Rule of Law is abandoned, we become governed by the whims of culture, politicians, and judges.
"It was understood to be a rule of law that where the words of a statute admit of two constructions, the one just and the other unjust, the former is to be given them." --Thomas Jefferson to Isaac McPherson, 1813.
"Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions." -- James Madison
John Locke proposed that the rule of law was governed by Nature's Law (God's Law) and that no man, including a country's leader, or members of the judicial system, are above that law. Because the rule of law is based on natural law it cannot be interpreted, or changed, by the whims of men. To allow such latitude in the law is to have no law at all, and the society under such a system is not governed by the rule of law, but by the rule of man. When courts can make rulings as the arbiters of the law, they are not ruling based on the rule of law, but by judicial fiat.
-- Political Pistachio Conservative News and Commentary