PrintJanuary 2, 2011
Rule of Law in the Age of Obama
Recently, U.S. District Court Judge Henry Hudson ruled that the individual mandate under the Patient Protection and Affordable Care Act is unconstitutional. While a significant ruling in context of expansive federal powers under the commerce clause, of paramount importance is the underlying fundamental principle of the Rule of Law.
The Rule of Law is often overlooked and misunderstood when constitutional issues arise. A general misconception is a law is constitutional if Congress passes a bill and the president signs the bill into law, or the Supreme Court of the United States upholds a laws constitutionality. Not only is this wrong, but it is inherently dangerous to our constitutional republic, limited government and federalism, and the protection of man's natural rights and liberty.
The Rule of Law is defined as follows: "Individuals, persons and government shall submit to, obey and be regulated by law, and not arbitrary action by an individual or group of individuals" [i]. In other words, nobody is above the law, nor can anybody act outside the constraints established under the Rule of Law. The Rule of Law is incorporated in the Constitution of the United States.
The Rule of Law embodies certain indispensable characteristics which are necessary and proper in a government of laws (as opposed to a government of men). Those indispensable characteristics are the supremacy of law and justice. The absence of either supremacy of law or justice represents a fatal flaw in our form of government.
Supremacy of Law
Supremacy of Law requires both citizens and government to be subject to known and standing laws. By subjugating government to a set of known and standing laws, the Rule of Law constrains government bureaucrats and political rulers' arbitrary power over the citizenry. Today, political expediency and ideology result in a myriad of laws subjugating citizens to political will, which ultimately violates the Rule of Law.
People conflate the supremacy clause, found in Article VI of the Constitution, with Supremacy of Law. Many people believe the supremacy clause states that the federal government is supreme in all matters of law. Nothing could be farther from the truth. Such wishful thinking is the rational basis used to usurp power otherwise not granted to the federal government in the Constitution. The key provision of the supremacy clause is "which shall be made in Pursuance thereof."
Limitations on arbitrary power were incorporated into the Constitution under Article I, Section VIII. This section enumerated the powers ceded by the several states to the federal government. The Constitution established a federal government with limited powers. The several states created the Constitution, ratified the Constitution, and are the ultimate authority required to amend the Constitution.
After years of despotic rule under the British Crown and fighting a war of independence, it is inconceivable that the framers would create and establish a system of government under the Constitution which granted unlimited power and authority to the federal government. For the federal government to be supreme in all matters of law raises the following questions:
- Why did the framers labor to define and enumerate the powers ceded to Congress under Article I, Section VIII of the Constitution?
- By default, all acts of Congress would be supreme, therefore rendering most of the Constitution meaningless. There would be absolutely no limits on congressional power and authority. Why would the colonies fight a war of independence to establish a new system of government capable of subjugating the people to laws under a new tyrant?
Supremacy of Law doesn't support any conclusion as to whether the federal government is supreme over state governments or vice-versa. The proper interpretation is that those powers reserved to the states and those powers delegated to the federal government must be adhered to because it is stated in the Constitution, and the Rule of Law embodies supremacy of law.
Likewise, the supremacy clause is applicable only to those powers ceded to the federal government. If Congress passes an act within the limited powers ceded to it, then the law is binding and supreme over any state law or state constitution. This is what "shall be made in Pursuance thereof" means. Otherwise, the law is not binding and, therefore, not supreme law.
Justice
Justice is another indispensable characteristic of the Rule of Law. In the state of nature, man possesses certain rights as a matter of being -- the right to associate, to contract, to self-defense, etc. These are referred to as natural rights. In the Declaration of Independence, natural rights are stated as certain unalienable rights to life, liberty, and the pursuit of happiness conferred upon man by his Creator. These natural rights cannot be conferred by man unto man. That is, government does not confer natural rights, nor can government deny or abridge natural rights. The Constitution protects man's natural rights and liberty from government.
In a state of nature, a formal justice system doesn't exist. One man steals property from another man, and the aggrieved man seeks retribution for his loss of property. The aggrieved man enacts his own form of justice to compensate for his loss. That retribution may be excessive or unjustly applied in the mind of a disinterested third party. For instance, a man steals food from another man. The aggrieved man seeks retribution and kills the man that stole from him. Most would conclude that the aggrieved man's action was excessively unjust.
One of the primary reasons man enters into civil society is the resolution of conflicts between individuals. To ensure that government treats citizens fairly when resolving conflicts, certain protections are necessary to preclude government's arbitrarily taking action against its citizens.
Personal liberty must be protected. That is, man must be safe and secure in knowing he cannot be arrested without cause, and his private belongings and things cannot be seized or searched without probable cause. Man must violate the law for the government to justify encroaching upon his personal liberty.
Lastly, due process under the law is paramount to the protection of personal liberty, natural rights, and private property. Laws regarding procedural and evidentiary rules, jury trials, and the presumption of innocence are necessary safeguards under the Rule of Law.
A quick glance at the constitutional amendments illustrates the importance of justice under the Rule of Law, particularly on the limitation of arbitrary and discretionary government powers. Amendments IV through VIII all deal with some aspect of justice. The fourteenth amendment is frequently referenced in regards to justice and due process under the law. Amendments I, II, IX, and X are restrictions on government infringing upon man's rights and liberty.
Coercive Government
Whenever government violates the Rule of Law, government becomes coercive. Regardless of the government's rationale, citizens' popular opinion, or intended outcomes, any government action which violates the Rule of Law is coercive, unconstitutional, and unjust. The Rule of Law and coercive government are of utmost concern to the survival of our constitutional republic.
In many cases, elected officials or government bureaucrats use humanitarian reasons to justify their actions. We are doing this for the children. We are doing this to protect you from some harm. We are compassionate and must help those who are disadvantaged. All are attempts to justify the use of arbitrary power to achieve political or ideological outcomes that often abridge individual rights, property rights, or liberty.
How does government usurp powers and act arbitrarily in violation of the Rule of Law?
First and foremost, the federal government usurps powers that were intended to be reserved by the states. Consider a traditional power like local police. If Congress were to pass a bill taking control of all local police powers, the president to sign the bill into law, and the Supreme Court to rule that the law is constitutional, then state powers would be usurped by the federal government [ii].
The Supreme Court has presumed powers not otherwise granted to it by the Constitution and established itself as the final and ultimate word on all constitutional matters. The framers did not intend to vest the Supreme Court with this ultimate authority. It is akin to putting the fox in charge of the hen house. Furthermore, constitutional interpretation exacerbates the problem of authority, as it affords judges the opportunity to institute distributive and social justice rather than commutative and legal justice. The framers did not intend to vest nine people in black robes with the power to change the meaning of the Constitution [iii]. Only a properly ratified constitutional amendment can change the Constitution.
Congress established numerous federal agencies and programs administered by the executive branch. Legislation often grants agencies broad general powers to implement and regulate programs. Unelected government bureaucrats establish rules and regulations which are considered equivalent to statutory law. These rules and regulations may run afoul of the Constitution, be used to redistribute private property, take control of private industries, or further an administration's political ideology. Dozens of czars were appointed without the consent of the people. The Declaration of Independence states, "He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance." Regulations are another method used by government to arbitrarily exercise power over the citizenry.
Those who swear an oath to uphold the Constitution are stating that they will uphold the Rule of Law. In the next breath, the same people say the Constitution is a living and breathing document, the Constitution is stale and doesn't reflect modern realities, or the federal government has the power to do whatever it wants under the Constitution.
Expansive views and interpretations of the commerce clause, general welfare clause, necessary and proper clause, etc. are referenced by elected officials as their constitutional authority to enact legislation, institute rules and regulations, and usurp powers otherwise reserved to the states.
These are arguments of tyrants and ideologues. A person either reveres the Rule of Law or rejects the Rule of Law. There is no middle ground. There is no cafeteria plan where certain aspects of the Rule of Law can be followed or ignored as one pleases.
Those who revere the Rule of Law understand it is meant to constrain government against arbitrary use of power. Those who reject the Rule of Law use government power arbitrarily to constrain the people.
The founding fathers and framers revered the Rule of Law. The Tea Party and the 2010 elections are about the Rule of Law. The next two election cycles are critical to the country's future and the Rule of Law. Nothing less than our constitutional republic is at stake.
[i] Several definitions exist for the rule of law. The definition I chose for this article is here.
[ii] Federalism was established under the Constitution. All powers originated as states' powers, and certain limited powers were ceded to the federal government by the states. James Madison addresses the question of state and federal powers in Federalist 45. The second and third paragraphs from the end of the paper encapsulate the framers' thinking regarding state and federal powers.
[iii] The current Supreme Court has nine judges. This has varied over time from as few as six to as many as ten. The Supreme Court has remained at nine judges since 1869.
