The Rule of Law

“Be strong and very courageous.  Be careful to obey all the law my servant Moses gave you; do not turn from it to the right or to the left, that you may be successful wherever you go.  Do not let this Book of the Law depart from your mouth; meditate on it day and night, so that you may be careful to do everything written in it.  Then you will be prosperous and successful.”

 -          Joshua 1:7-8

 “Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice?”

 -          George Washington

 “It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice….

In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”

 -          Massachusetts Constitution, Part the First, Articles XXIX and XXX (drafted by John Adams, Samuel Adams, and James Bowdoin)

Both Jews and Christians are justly famous as “people of the Book” or in other words, people who are supposed to live by a written code of law.  At the beginning of the book of Joshua (which was when the Israelites crossed over into the Promised Land for the first time), God identified the rule of law as one of the keys to the success of His new nation.

 There are at least three basic reasons why the rule of law is part of the foundation of a strong, free, and prosperous society.  One is the maintenance of public order.  As discussed in the previous part of this First Principles section (“A Commitment to Individual Freedom”),  God has given all of us freedom, but freedom includes the ability to make both right and wrong choices.  Therefore, in order to enjoy our freedom the way God intended it to be enjoyed, we must exercise our freedom responsibly.  All of God’s commandments are given for our good, to show us how to live responsibly so that we can enjoy the abundant life he intends us to have (John 10:10.)  In other words, in order to maintain a civilized and orderly society (instead of chaos and anarchy), we must not exercise our freedom in ways that hurt others.  This is why both statements of the Ten Commandments in the Bible begin with “I am the Lord your God, who brought you out of Egypt, out of the land of slavery.”  (Exodus 20:2, Deuteronomy 5:6)

The Ten Commandments are as follows (numbering added):

 “I am the Lord your God, who brought you out of Egypt, out of the land of slavery.

1.  You shall have no other gods before me.

2.  You shall not make for yourself an idol in the form of anything in heaven above or on the earth beneath or in the waters below…

3.  You shall not misuse the name of the Lord your God, for the Lord will not hold anyone guiltless who misuses his name.

4.   Remember the Sabbath day by keeping it holy.  Six days you shall labor and do all your work, but the seventh day is a Sabbath to the Lord your God.  On it you shall not do any work…

5.  Honor your father and your mother, so that you may live long in the land the Lord your God is giving you.

6.  You shall not murder.

7.  You shall not commit adultery.

8.  You shall not steal.

9.  You shall not give false testimony against your neighbor.

10.You shall not covet…anything that belongs to your neighbor.”

-          Exodus 20:2-17

 The Ten Commandments provide a more detailed statement of the key principles of Judeo-Christian morality than was included in Jesus’s Summary of the Law (love God and love one another – Matthew 22:36-40).  These principles were intended to provide the moral foundation for the nation of Israel.   The value of the last six commandments (which concern how we are supposed to relate to one another) in maintaining public order should be obvious.

What is less obvious to a modern, secular audience (but was clearly acknowledged by America’s founding fathers)  is that the first four commandments also have an important role in maintaining public order.  Although we all will (and all should be free to) define our obligations to God somewhat differently, the loss of a general sense of sacred obligation to God and one another throughout our society is at the root of many of our recent social crises, from the financial crisis Wall Street to the oil spill in the Gulf of Mexico.  For many years, signs on the wall of many courtrooms in the United States acknowledged that the Ten Commandments are the foundation of American common law.  In my opinion, we have lost greatly, and in ways that go far beyond the encouragement of truthful testimony in court, by forcing judges who wish to display the Ten Commandments in their courtrooms to remove them.  The importance of the free exercise of  religion in maintaining a free society, and the ways in which we can allow for greater freedom of religious expression in the pluralistic society of modern America, without unduly infringing on anyone’s right to dissent, are discussed in more detail in the sections of this site on Our Spiritual Heritage and Rights of Conscience. 

The second reason why the rule of law is foundational to civilized society is that it is critical to maintaining justice, or in other words to ensuring that the rules by which society is supposed to operate are clearly defined, fair, and equally and impartially applicable to all.  This is discussed in more detail in the final part of the First Principles section of the site (“A Commitment To Justice.”)

Finally, the rule of law is also supposed to restrain powerful government officials from taking any action that is not authorized by the charter they are operating under (the Law of Moses for ancient Israel, and the federal Constitution and federal laws  - all of which are supposed to conform to the Constitution - for the federal government of the United States.)   This is the meaning of the statement that “America is a nation ruled by laws, not by men.”  

In other words, commitment to the rule of law means that the Constitution of the United States should be thought of as a “social contract”[1] in which the rights and obligations of the federal government (and its various branches), state governments, and the people are enumerated specifically, and may not be changed except by the processes provided within the Constitution. 

The contractual nature of the Constitution of the United States can be clearly seen from several features of its Preamble, which is quoted below:

 “We the people of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the blessings of Liberty to ourselves and our posterity, do ordain and establish this Constitution of the United States of America.”

The entire text of this preamble is similar in form to the “recitals” that are often included at the beginning of modern commercial contracts, which enumerate the benefits the parties expect to receive from the contract contained in the remainder of the document.  It is also significant that the preamble specifically states that one of the key purposes of the constitution is to “establish Justice.”  As noted earlier, a system of clearly defined, fair, and equally and impartially applied laws is critical to the establishment of justice. 

Finally, it is also highly significant that the preamble concludes with the statement that “We the people…do ordain and establish this Constitution.”  The word “ordain” comes from the Latin word ordinare, which means “to arrange in order.”   This means that any judge who attempts, by judicial edict, to go beyond the original intent of any provision of the Constitution or other laws (as evidenced by the language of the provisions themselves and the legislative history at the time of passage), is in fact usurping power from the American people, by attempting to unilaterally change the social order that the American people (acting through their elected representatives, after extensive public debate) have previously “established.”

The idea that the powers of the federal government are limited to those specifically enumerated in the Constitution is specifically stated in the Tenth Amendment, which says:

 “The powers not delegated to the United States by the Constitution, nor prohibited by it to  the States, are reserved to the States respectively, or to the people.”

One of the most important safeguards that helps to maintain the rule of law is the separation of the legislative, executive, and judicial powers of government.  In other words, in addition to restraining themselves from taking any action which is contrary to the Constitution, government officials are also supposed to restrain themselves from taking any action which goes beyond the constitutionally provided powers of their own office.  This is the issue that is summarized so well in Article XXX of the first part of the Massachusetts constitution.  The U. S. Constitution also contains many provisions providing for the separation of the legislative, executive, and judicial powers of the federal government.  One of the most important of these is in Article I, Section I, which states that “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”  (emphasis added)  Keeping the legislative powers within Congress is particularly important because (as the Declaration of Independence says), good governments “derive their just powers from the consent of the governed.”

Although the idea of the separation of governmental powers is not mentioned explicitly in the Bible (it comes primarily from several Enlightenment philosophers, particularly Montesquieu, who was quoted extensively by the drafters of the U.S. Constitution), separation of governmental powers is consistent with the Biblical view of human nature.  As discussed in more detail in a later part of this First Principles section, the Biblical view of human nature says that everyone has deep and significant moral imperfections, which will persist as long as they are on this earth.  Therefore, the amount of power given to any particular government official (or any one branch of government), should be limited, and counterbalanced by the powers given to the other branches.

In practice, the power of the American people to direct the course of their own government through their elected legislatures (and the rule of law itself), has been increasingly imperiled in recent years by the increasing assumption of legislative (or quasi-legislative) powers by both the executive and judicial branches of the federal government.  Some examples include:

• Beginning in 1947 with the Everson v. Board of Education decision, the Supreme Court has held (contrary to all previous history and precedents, and to the language of the First Amendment itself)  that:  1) the First Amendment to the U.S. Constitution requires a strict “wall of separation” between church and state, and 2) that through the “due process” clause of the 14^th Amendment, this interpretation of the First Amendment also applies to the states.  As explained in more detail in the Rights of Conscience section of this site, this has had the effects of:  1) essentially establishing secular humanism as the official religion of the United States, in violation of both the “establishment” and “free exercise” clauses of the First Amendment language on freedom of religion, and 2) giving the nine unelected justices of the Supreme Court the unilateral power to regulate religious expression in federal, state, and local government offices, and all other institutions receiving federal or state government funding (including public schools and universities.)

• In April 2007, the Supreme Court ruled in Massachusetts v. EPA that the U.S. Environmental Protection Agency (“EPA”) had authority to regulate carbon dioxide emissions as a “pollutant” under the existing statutory language of the Clean Air Act.  In this ruling, the Supreme Court essentially presumed that carbon dioxide is a pollutant, when in fact the question of whether or not carbon dioxide is a pollutant is a highly controversial scientific issue which the Court is not competent to settle.  Furthermore, as noted in both dissenting opinions in this case, the Court also made an exception to its normal rules regarding who has legal standing to pursue this type of claim.  Thus, it was a “stretch” of both facts and law for the Court to make this ruling, which potentially gives EPA the power to impose regulations that have a major impact on our economy by executive edict.

• In December 2009, the EPA finalized an “endangerment finding” (i.e., a finding that carbon dioxide emissions endanger public health and welfare) that represents the next step in the process of potentially regulating carbon dioxide emissions by executive edict.  However, as explained in more detail in the Environment section of this site, this finding ignored a variety of scientific evidence that calls its key conclusions into significant question.  Partly due to scientific questions over whether carbon dioxide emissions do in fact cause significant amounts of global warming, and partly due to widespread (and justified) public concern over the potential economic impact, bills regulating carbon dioxide emissions have twice failed to pass in Congress.  In my opinion, trying to impose these regulations by executive edict is both tyrannical and foolish.

• The Obama Administration has now gone beyond previous Administrations’ policies of limiting enforcement of the federal laws against illegal immigration, and into a policy of actively opposing enforcement of these laws.  This is a direct violation of the laws that the members of the executive branch have taken an oath to uphold[2], which express the considered opinion of the majority of the American people in favor of effectively securing our borders.

Throughout this section of the site, I have presented a literal or “strict constructionist” theory of how the Constitution should be interpreted, which I believe is both far more consistent with the rule of law, and far more consistent with the founding fathers’ intentions, than any other approach.  But you do not have to take my word for this.  Thomas Jefferson put it this way:  “On every question of construction [we should] carry ourselves back to the time when the Constitution was adopted; recollect the spirit manifested in the debates; and instead of trying [to find] what meaning may be squeezed out of the text, or invented against it, conform to the probable one, in which it was passed.”

The main counterargument to the strict constructionist approach is that “the Constitution is a living document.” The implication of the “living document” theory is that the nine Supreme Court justices whose duty it is to ensure that our laws follow the Constitution should be free to re-define “constitutionality” in accordance with their own understanding of the changing social norms of modern American society.

To which I reply, “Yes, the Constitution is a living document, but it was never intended to stand on its head!”  I think the idea of the judicial and executive branches of our government having such unlimited, arbitrary, and potentially despotic powers as they are currently attempting to exercise would be anathema to any of the founding fathers.  If we, as a people, have genuinely come to a national consensus that some part of the Constitution needs to be changed, then the appropriate procedure is to amend the Constitution, using the methods provided within the Constitution.  This has in fact been done many times (and generally for the good) in the more than 200 years since the Constitution was originally ratified.  Only the first ten amendments of the Constitution (the Bill of Rights) were proposed as part of the original process of ratifying the Constitution.  The other 17 have been added since.  And in the Executive Summary section of this site, I am proposing several possible additional amendments to the Constitution for public discussion.

The procedure for amending the Constitution is difficult.  (According to Article V, amendments may be proposed by either a) a two thirds vote of both Houses of Congress, or b) by agreement of the state legislatures in two thirds of the states, and must be ratified by three quarters of the states in order to take effect.)   However, it is right that this should be the case, so that the original meaning of the Constitution cannot be modified without a genuine national consensus that it needs to be changed.  As the Declaration of Independence says, “Prudence, indeed, will dictate that Governments long established should not be changed for light and transient Causes.”