This article combines quotes from Judge Andrew Napolitano, and The Federalist Society. All quotes are in italics.
“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. …..”1
“Article I, Section 1, of the Constitution explicitly vests all legislative power granted to the national government in the Congress, consisting of the Senate and the House of Representatives. Article IV, Section 4, guarantees to every state in the union a republican form of government: that is to say, a government of laws and not of men.”2
“The Rule of Law is a three-legged stool on 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…….”1
”The continuing growth of the administrative state has put lawmaking—both civil and criminal —in the hands of an unelected and largely unappointed (and therefore un-confirmed by the Senate) body of career civil servants who are not even minimally responsible to the electorate. The resulting maze of regulatory burdens has the force of law while lacking its legitimacy. Egregiously, one can no longer even find a listing of all federal crimes in Title 18 —the U. S. Criminal Code—because so many of them are buried in regulations promulgated by administrative agencies such as the SEC and the EPA……2
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…..”1
Congress has a history of exempting itself from laws (social security taxes, insider trading, and (Affordable Care Act) it passed, however, they have experienced fairly severe push back from voters and have had to amend those laws to make them applicable to themselves. They are still exempt from OSHA and freedom of Information requests(FOIA).
It is apparent that several cities/states have decided to stop enforcing laws against rioting, looting and destruction of private property in Seattle, Portland, Minneapolis, Chicago, Atlanta, Detroit and New York. Property owners in these areas have surely been deprived of the Rule of Law by the lack of law enforcement actions that would have prevented the rule of the mob destroying their homes and businesses.
The actions of the FBI in the targeting of General Flynn for investigation, which did not stop even after they concluded that there was no evidence that he had colluded with Russia. The FBI pressured General Flynn to plead guilty to a single false-statement charge by threatening to prosecute his son and by withholding exculpatory evidence. The Justice Department’s review of the case revealed prosecutorial abuse and moved to dismiss the case. In an unprecedented move, the judge on the case refused to accept the dismissal and has attempted to prosecute the case on his own.
“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…..”1
The multiple Corona Virus Emergency Orders issued by states in 2020, have taken over the power of their legislation branches and have been ruling by decree over businesses, churches and citizens for the last eight months. When does the emergency end? Are our Constitutional rights suspended until our leaders decide to give them back to us?
“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…..”2
A First Amendment case is scheduled to be decided in the current Supreme Court term. In Uzuegbunam v. Preczewski, a student named Chike Uzuegbunam was prohibited from distributing religious literature on campus by a rule issued by a public university (Gwinnett College). The College rescinded it’s rule on the cusp of receiving a federal court order prohibiting their policy which caused the suit to be dismissed. The case before the Supreme Court is whether the suit should have been dismissed simply because the college recinded it’s rule that violated Mr. Uzuegbunam First Amendment rights. Nothing would stop the college from issuing a new rule against future students.
“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. ……..
The courts—in particular the Supreme Court—has acted as a mini-legislatures. Rather than limit their rulings to the legal issues in the specific cases before them, they routinely and undemocratically decide broad matters of public policy.
In Sebelius, a clearly conflicted Chief Justice Roberts went out of his way to re-write the “individual mandate” of the Affordable Care Act as a “tax” within the power of Congress to impose, even though a majority of justices agreed that the mandate exceeded the powers of Congress under both the commerce and the “necessary and proper” clauses.
In King v. Burwell, the same Chief Justice ignored the plain language and intent of the statute `and invented an ambiguity to enable misconstruing “Exchange established by the State” to mean “Exchange established by the State or the Federal Government.”
Even worse from a rule of law standpoint was Obergefell, which brutally usurped the will of the people of 39 states and violated both vertical and horizontal separation of powers by legislating from the federal bench in an area—marriage law—that the Tenth Amendment plainly leaves to the states and to the people. (Whether the Court made a “good” or a “bad” policy choice is immaterial to the rule of law.)
A nation in which the government can effectively yank any citizen’s chain without that citizen’s implicit consent by having had a vote on the governing law is no longer a nation of laws and not of men.(which are opposed to each other) And that may explain, in part, the increasing disdain and disrespect that Americans of disparate political stripes have begun to show for public institutions and the law.
The “Black Lives Matter” movement, for example, reflects at least in part the suspicion of many African-Americans that the criminal laws are not fairly and evenhandedly enforced, even at the local level. The sense that the Supreme Court has become a political rather than a judicial body has led to diminished respect for what may once have been our most revered governmental institution, to the point of civil disobedience.”2
(1) “Rule of Law” by Andrew Napolitano A former judge of the Superior Court of New Jersey. Distributed by Creators.com 2012
(2)”Ruminations on the Rule of Law” by The Federalist Society October 8, 2015
