The Rule of Law
by Andrew P. Napolitano
Recently by Andrew P. Napolitano: We Are at a Turning Point
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. It also is not legitimate if it is written by the president instead of Congress.
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.
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.
In our era, the violations of the Rule of Law have become most troublesome when the government breaks its own laws. Prosecute Roger Clemens for lying to Congress? What about all the lies Congress tells? Prosecute John Edwards for cheating? What about all the cheating in Congress when it enacts laws it hasn't read? Bring the troops home from the Middle East? What about all the innocents killed secretly by the president using CIA drones? Can't find a way to justify Obamacare under the Constitution? Why not call it what its proponents insisted it isn't – a tax?
We live in perilous times. The president acts above the Rule of Law and fights his own wars. Congress acts below the Rule of Law by letting the president do whatever he can get away with. And this summer, the Supreme Court rewrote the Rule of Law.
What do we do about it?
Reprinted with the author's permission.