Tuesday, December 19, 2017

Seeking the Rule of Law

By Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host

Political critters who roam around the halls of government throw around the term "rule of law" quite a bit, but we must ask, "Do they know what that means?"

The following is an excerpt from my upcoming book, "A Promise of American Liberty."

Frederic Bastiat said, "When law and morality contradicts each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law."

The rule of law, according to historical sources, carries with it an important connection to, as the Declaration of Independence puts it, the "Laws of Nature of Nature's God." Natural Law, and the rights of the people that Nature's God entitles them to, are self-evident, and are "endowed" upon humanity by "their Creator."

The rule of man, however, is when people who believe themselves to be members of a powerful ruling elite dictate the nature of law, changing it at political whim, or to gain populist approval by altering the law outside the processes provided as a result of the whims of culture and society. These kinds of changes are performed not by amending the United States Constitution, or following the process of making law through the representation of We the People, but by the orders of politicians, judges, and regulatory agencies.

When a society abandons the rule of law as established by a written constitution, refusing to use the processes of law, but instead change the law through other means, which is to embrace the rule of man rather than the rule of law, it is not very long before that society dances around the proverbial golden calf.

The Law of the Land is the standard from which the rule of law must be administered, and in America the law of the land is the United States Constitution. With the Constitution comes processes regarding legislative powers, executive powers and judicial powers (all of which are supposed to be separate powers by separate branches of government that are not constitutionally allowed to collude with each other, or operate outside the authorities granted to them), as well as processes involving amending the Constitution, and processes that originally allowed the State legislatures to also be involved in the governing of the union of States. However, through a usurpation of the United States Constitution, the federal government has circumvented the Constitution, enacting their own processes through the rule of man.

We must be reminded that as government acts in an unconstitutional manner, it is up to the citizens to set government back on the correct path. After all, the Preamble of the United States Constitution does not begin "We the Politicians," or "We the Judges," or even "We the Ruling Elite." The first three words of the Preamble of the Constitution are "We the People."

The rule of law, which is intimately connected to Natural Law, is required to abide by constitutional authorities and processes. Therefore, the federal government is expected to only operate within the authorities granted to it, and all other powers belong to the States.

Social issues, for example, are local issues. From a constitutional point of view, social issues are none of the federal government's business. Slavery, a social issue of the time, and one that should have been originally addressed by the States, spurred the creation of a new political party, the Republican Party, and though the Framers of the Constitution expected the States to systematically abolish slavery in each and every State within their lifetimes, in the end it took a war, and three amendments to the U.S. Constitution, to end slavery in America for good.

Today a whole litany of social issues plague the political arena. The attempt is to replace the rule of law with the rule of man; to set aside God and the processes of the Constitution and replace them with humanism. Among the methods to achieve their aim is through judicial opinions based on the whims of the culture and the loudest politicians.

Marriage, technically, is a State issue, and federal interference is unconstitutional. We must ask, "why is government involved in marriage in the first place?" The two times marriage licenses (or should we call them "just in case there's a divorce" licenses) have appeared in American History was during reconstruction after the American War Between the States, and during the 1930s under President Franklin Delano Roosevelt.

In both cases, they emerged so that the government could control marriage, and tax marriage.

During Reconstruction marriage licenses emerged in the hopes of stopping inter-racial marriages. During the Great Depression it was to squeeze a few more tax dollars out of the populace.

Since the Rule of Law is based on Natural Law, that means that God’s law is an important factor in establishing and determining what is the Rule of Law. Therefore, among the greatest enemies of the concept of the Rule of Law is the concept of the Separation of Church and State. The Separation of Church and State is a misleading concept as it is defined today. Our understanding of it in today's vernacular is more often, than not, incorrect. In our modern society the concept is interpreted to mean that any and all parts of government cannot be associated with religion in any way, shape or form. To do so would be an endorsement of religion which is in violation of the establishment clause in the 1st Amendment. Therefore, prayer has been removed from schools, crosses are being removed from the public view and government properties, and any politician is shamed if he mentions that God is the inspiration for the decisions he or she makes while in office as a representative of the people.

Alexis de Tocqueville noticed when he visited the United States in the 1830s that the politicians prayed, and the pastors preached on politics, but the church never controlled the government, and the government never controlled the church. In many ways, the church and government were symbiotic. Unfortunately, the extremes of ideology have since poisoned that relationship.

The basis of the English Colonies, and their view of the Rule of Law, was through the Laws of Nature of Nature’s God. In Britain, religious freedoms had been at risk, so the early settlers in America came to this continent in search of religious liberty.

During the early 1600s, King James I enforced conformity to the Church of England, punishing any dissenters. In 1629, King Charles I initiated aggressive policies against the Puritans, which led to the Puritan Revolution in England, and an influx of new Puritan settlers in the English colonies.

The early northern colonies in the New World were theocracies, but as the settlers moved farther into the frontier to the west, the hold over the colonists by the church splintered. New strains of Protestantism emerged in the frontier lands. In the original colonies the Puritan churches (which, at this point, began to call themselves “congregationalists”) divided and subdivided. The Christian founding of these settlements, and other settlements by other religions, led to a diversity of the religious beliefs and practices by the early colonists, but all of them held on to the idea that God was the provider of the rule of law.

The rule of law is based on the concept that our rights do not come from government, but from our Creator. Change for the sake of change is not always a good thing, and you never try to fix what is not broken, especially when a system like the American System is based on principles proven and tested throughout history. The success of America as a country is largely due to the innovative concept of State Sovereignty, and the foundation of values derived from a belief in divine Providence.

The alteration of culture and technology was foreseen by the authors of the U.S. Constitution, and the anti-federalists who feared the new system may be too intrusive. What they saw coming was exactly the reason for the writing of the Constitution in the limiting manner it was written. Culture decays, and technology always provides tyranny new ways to be tyrannical. Liberty, however, never goes out of style. Human nature is the central reason for limiting the federal government to authorities that protect, preserve and promote the union. It was to guard against the increasing corruption of culture and society that the document instructs that all internal issues must remain in the hands of the States.

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 in terms of the Rule of Law 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.

What the founders were seeking while establishing the American system of government 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 federal system was ultimately 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 and sovereignty of the various States.

However, a strong central government, it was feared, may still 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 powerful 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 the federal system that was established by the U.S. Constitution, 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. In other words, the politicians are not supposed to make laws they themselves are exempt from. That kind of practice would be a step away from the Rule of Law, and a venture into the territory of the Rule of Man.

The Anti-federalists argued that creating a federal government opened up the opportunity for tyranny. Those who 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 new union of States, without a central government wielding enough power to field an army, or a central government with the power to tax in order to pay for that army, the fledgling country would not long survive.

The conclusion was that the United States must not be subject to the laws of men, or be subjected to the rule of men. To do so would be to open itself up to become an oligarchy. The new country needed to be a land 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, both hold sovereign power. The people, and the States, are both constituents of the republic. The dual constituency is a unique feature of the United States, only shared by biblical Israel. In Israel, rather than States, the second constituent was the twelve tribes, who, like the union of States, joined together in a union, while maintaining the sovereignty and autonomy of each individual tribe.

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, are the responsibility of the States, and the local governments, where the people have more control over governmental functions.

To achieve their goal of liberty, 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, whose powers are separated so that collusion between the branches would be difficult. Integrated into that system of government would be a series of various checks and balances to ensure no part of government wields too much power. The federal government would also operate based on a limitation of authorities granted by the States.

The American form of government, when operating 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.

The courts, however, have hijacked the Rule of Law, and have redefined the Rule of Law to be the same as “The Rule of the Courts.” Through case law and judicial review the federal court system has established that judicial decisions are the components that makes up the rule of law because judges are the people tasked with ruling on the law.

Chief Justice John Marshall was the justice to begin the trend of case law and judicial review. He 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 it 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.

The Founding Fathers knew that the courts were a potential 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. Since the rule of law is based on natural law it is not supposed to be subject to interpretation, nor changed easily 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.

This is why there are no authorities granted in the U.S. Constitution for the federal courts to strike down pieces of legislation or executive orders. To allow the courts to have such power would be to allow a segment of men to control the Rule of Law, of which comes from God’s law, not the laws of men.

-- Political Pistachio Conservative News and Commentary

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