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The Rule Of Law In America: An Autopsy

Francis W. Porretto

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Sept. 8, 2015

What idea was the cornerstone of the ideological wall that the Founding Fathers used to construct this nation? What single, simple concept embodied everything that they hoped to create, and would serve as a yardstick for future generations to measure their path?

     “This shall be a nation of laws, not men”

     This was the idea that galvanized a group of Englishmen to revolt against an overreaching crown. This was their solution to prevent future totalitarian regimes from subjecting their progeny to depravities that they themselves were suffering. It was not only to be the framework of the new nation, but also the mortar holding it together, binding both citizen and official into a web of interconnecting loyalties and obligations. Rule by man could, no, inevitably would, be capricious. Rule of law was as constant as the northern star, providing the only model where justice could be guaranteed with tyranny excluded.

     A bit dramatized and overwritten, but the essential points are there. To avert the possibility of tyranny, whether monarchical or oligarchical:

  • The law would be “public property,” made by open, Constitutionally defined processes;
  • It would be comprehensible by any reasonably intelligent adult;
  • It would bind all Americans without exception.

     And it seemed to work very well for quite a long time. But then, it wasn’t the sole pillar of the new Republic. It collaborated with several others:

  • The limited powers of the federal government;
  • The essential weakness of the state governments;
  • The widespread armament of the American citizenry;
  • And the great reluctance of the legislatures to tinker.

     It’s that last point that’s most on my mind this morning.

     It was observed, by Thomas Jefferson among others, that legal stability is a necessary precondition for the knowability of the law, and thus for the effectiveness of the rule of law. Jefferson was particularly scathing about the federal judiciary’s arrogation of the power to “interpret” the law, including the Supreme Law, the Constitution:

     "Contrary to all correct example, [the Federal judiciary] are in the habit of going out of the question before them, to throw an anchor ahead and grapple further hold for future advances of power. They are then in fact the corps of sappers and miners, steadily working to undermine the independent rights of the States and to consolidate all power in the hands of that government in which they have so important a freehold estate." -- Autobiography, 1821

     "The great object of my fear is the Federal Judiciary. That body, like gravity, ever acting with noiseless foot and unalarming advance, gaining ground step by step and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them." --Letter to Spencer Roane, 1821

     "It has long been my opinion, and I have never shrunk from its expression,... that the germ of dissolution of our Federal Government is in the constitution of the Federal Judiciary--an irresponsible body (for impeachment is scarcely a scare-crow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States and the government be consolidated into one. To this I am opposed." --Letter to Charles Hammond, 1821

     "The judges... are practicing on the Constitution by inferences, analogies, and sophisms, as they would on an ordinary law. They do not seem aware that it is not even a Constitution formed by a single authority and subject to a single superintendence and control, but that it is a compact of many independent powers, every single one of which claims an equal right to understand it and to require its observance." --Letter to Edward Livingston, 1825

     To Jefferson it was clear that stability in law, and thus its knowability by the common citizen, were incompatible with a judicial regime capable of “interpreting” it to mean other than what it said in its plain English text. His insights in this regard are among the many marks that cement his place as the supreme genius of the Founding Era. They seem queerly prescient when read in this age of the Republic.

     But for all his brilliance, Jefferson, who lived at a time when “regulation” was synonymous with “law,” and legislators were relatively ordinary men who would lay down their regular responsibilities for six or eight weeks each year to decide a few questions, adjourn, and return to their homes, could not have foreseen the incessant, frenetic, wholly unrooted dance of the legislatures and regulatory bodies that were to come.

     Legal stability begets knowability: the citizen’s ability to know what’s required of him and forbidden to him. But stability in law doesn’t rest solely on plain-English wordings stoutly resistant to creative “interpretations.” It also requires:

  1. Limits to legal scope;
  2. Steadiness of existing laws;
  3. A small, inexpansible volume of laws.

     The first condition was supposed to arise from constitutionalism: the requirement that every law conform to the higher law under which it was made. Each county would have its charter, which would be subordinate to the state’s own constitution, which would in turn be subordinate to the Constitution of the United States. The powers thus conferred upon a legislature would be circumscribed in a fashion that precluded the violation of recognized rights and ensured that constitutional and charter obligations would be respected.

     The second condition seemed to be guaranteed by the democratic process, which would elevate common citizens to seats in the legislatures. “Common citizens” as legislators! Today, when politics has become a career and ascent even to a county legislature requires prodigious expenditures of time, money, and effort, the notion seems fantastic. Yet the Founders assumed it would be so, because Americans would all have other pursuits, to which they would be attached and would want to return.

     The third condition...well, let’s just say that none of the Founders, Jefferson included, could possibly have imagined the volume of laws and regulations under which we labor today.

     The best indicator for the unbearable luxuriance of law is the legal library even the humblest practitioner is required to maintain. Hundreds of thick volumes populate the shelves...but even perfect knowledge of their contents would not be a sufficient guide to the law, for today’s lawyer is perforce a specialist. He operates in a corner of the law, defined by subject matter and geographical application, and dares not venture beyond it without consulting another lawyer whose specialty would adequately supplement his. If the heavily educated, licensed practitioners of law are so confined, what, then, could the common citizen know of it?

     When legislation constitutes a lifelong career rather than a brief stint in public service, when unelected, faceless regulators have carte blanche to “make rules” with the force of law, and when judges who are essentially proof against correction can interpret black to mean white, there can be no “rule of law,” for the requirements of the law are inherently unknowable.

     We await arbitrary enactments and alterations by career politicians.

     We hang on judicial decisions about the meanings of ordinary English words.

     We swim through seas of “regulations” decreed by unelected persons according to processes unbound by Constitutional norms.

     The rule of law, once a vital organ in our philosophical body, has been wrenched out, hacked up, and left to rot.

     It’s time we admitted as much, buried the remains, and acted accordingly.