March 6th, 2009

The Rule of Law vs. Man


photo credit: Kier42

Having lived under a tyrannical form of government and having studied plenty of others, the wise Founders of this nation sought to create a system of government where the rule of law prevailed. In contrasting forms of government (monarchy, oligarchy, aristocracy, etc.), the law was simply dictated by the rule of men. Thomas Paine, in his influential pamphlet Common Sense, articulated the difference in this way:

For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other.

The difference between the rule of law and the rule of men is readily seen when contrasting a republican form of government with a monarchy. However, the lines are blurred and confusion arises when within a Republic there are lawmakers that seek to subvert and disregard existing law. The rule of law remains in force only to the extent that existing laws, until changed or revoked, are executed and adhered to as required.

Conveniently, those who aspire to rule while disregarding the law are able to achieve their agenda by simply passing new laws, regardless of what existing law dictates. These individuals promote a degenerated, hollow version of the rule of law, in that their law is what they consider to be in force. If a higher and previous law forbids X, but the lawmaker and his colleagues pass a new law which mandates X, then we have a problem. The proper rule of law recognizes the original and superseding law and ignores the illegitimate (and illegal!) subsequent “law” that was passed. However, the popular and bastardized rule of law ignores the previous law, and, fearful of being punished for not obeying the current law, its adherents agree that the new law mandating X must be obeyed.

The rule of law thus requires answering this fundamental question: in situations where there are two conflicting laws, which is to be obeyed? This scenario only arises where there is a superseding law that cannot be revised or rescinded by statute. In this case, the new law mandating X cannot override or strike out the provision in the previous and superseding law which forbids it, because the lawmaker is not (by law!) given that authority. Thus, the implementation and execution of the new law requires using the forceful arm of government to carry out its provision by fiat, thus compelling others under its jurisdiction to likewise disregard the previous and superseding law.

But enough of theory; we have plenty of examples from which to choose. The Constitution of the United States—the ’supreme Law of the Land’—explicitly mandates and forbids certain things. It mandates that only gold and silver be used as currency, and yet in successive law we are forced to deal with fiat paper currency. It forbids Congress from making any law regarding free speech or assembly, and yet time and time again this arena is regulated. It mandates federal enforcement of illegal immigration (invasion), and yet we’re being overrun and our resources drained by these people. The list, sadly, is a long one.

Fact is, almost every President ignores the Constitution (by mandating things that it forbids or does not allow), to say nothing of the majority of Congress doing the same. The rule of law has been substituted for a corroded counterpart that masquerades as law, but really is little more than the rule of men who happen to be lawmakers at the time.

It is unfortunate that so many people seem willing to overlook the fact that our republican form of government now serves as an empty shell in which a nefarious agenda can be foisted on an ignorant populace. Convinced that whatever legislators say is the law, and with complete disregard for the contractual obligations stipulated in the Constitution, they continue to submit to an ever-encroaching government that uses this ignorance to its advantage.

In truth, rarely in this country’s experiment on liberty has the federal government obeyed the restraint of the rule of law. Power and control, it seems, are too tempting to resist. But the fault lies with the public; so long as people remain convinced that the rule of law is alive and well, the rule of men will be allowed to continue unabated in its assumption of power and destruction of liberty.

20 Responses to “The Rule of Law vs. Man”

  1. March 6, 2009 at 12:58 pm #

    Amusing as the link to Wingnut Daily is, why not link to the text of the Constitution where it explicitly states that the currency of the United States has to be gold and silver?

    OH RIGHT because it doesn’t say that!

    Article 1
    Section 10. No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.

    But, but all powers not expressly deliga…..

    Section 8.

    To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

    Now you can create arguments that this should apply to the federal government for a variety of reasons. As it reads, it applies to the states.

  2. March 6, 2009 at 12:59 pm #

    Will you now join me in calling for the repeal of the USA PATRIOT Act, the Military Commissions Act, and the FISA Amendments Act? All unconstitutional.

  3. Connor
    March 6, 2009 at 1:10 pm #

    bloggernacleburner,

    Now you can create arguments that this should apply to the federal government for a variety of reasons. As it reads, it applies to the states.

    Congress was given the authority to coin money. You can’t coin paper money unbacked by specie. A look at the Founder’s notes and diaries during the Constitutional convention clearly show (with notable exceptions, such as central banker Hamilton) a distaste for paper currency, since their Continentals had quickly become devalued.

    Regardless, the subject becomes a moot point when you look at how Congress has currently structured the creation of money by delegating it to a private bank, the Federal Reserve. Congress was never given the authority to delegate its delegated power, and thus the existence of Federal Reserve Notes are un-Constitutional.

    rmwarnick,

    I have long advocated the repeal of all three of those.

  4. March 6, 2009 at 2:54 pm #

    The Federal Reserve a private bank? That’s stretching the truth a little bit. There are parts of the Federal Reserve system that are private, but the whole reason for it’s existence was to act in a similar way to the European central banks at the turn of the (20th) century. It’s private and insulated to a degree from both politics and Wall Street to give a measure of stability to the banking system. The directors are appointed by the President and approved by the Senate, no foreign banks are allowed to hold stock in the system… come on, it’s private in name only.

    Nobody with an ounce of sense in their head wants to go back to the banking panics of the 1800’s.

    Once again, Connor, you’re simplifying this to an idiots level. Have you actually read Section 8?

    There’s this handy bit towards the end.

    To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States or in any Department or Officer thereof.

    As personally uncomfortable as I am with weasel words like ‘necessary and proper’, there’s a pretty good argument there that the delegation of powers by Congress to the Fed to handle coinage & the money supply is perfectly Constitutional. The Federal Reserve Act of 1913, the law made to carry into execution the foregoing power (of maintaining the ‘coinage’) by a department (the Federal Reserve) and Officers (The chairmen appointed by the President and approved by the Senate)

    It’s just not from your particular interpretation of the Constitution. Propaganda is easy, research takes a little more work.

  5. Connor
    March 6, 2009 at 3:43 pm #

    The Federal Reserve a private bank? That’s stretching the truth a little bit.

    No, it’s not. It’s private both in terms of ownership (its sole shareholders are private banks) and in terms of management (the bank has never once in its history been subject to an audit or Congressional regulatory oversight of any kind). For more, see here or here. Or, better yet, read this.

    It’s private and insulated to a degree from both politics and Wall Street to give a measure of stability to the banking system.

    Congrats on regurgitating the Fed’s talking points. Rothbard ripped this assertion to shreds in his book The Case Against the Fed, which can (and should!) be read here (PDF).

    Nobody with an ounce of sense in their head wants to go back to the banking panics of the 1800’s.

    As opposed to how stable banks are with the Fed running the show? Or how the dollar has retained its value? Oops.

    Once again, Connor, you’re simplifying this to an idiots level.

    No, if I was talking on that level I’d be suggesting you read this book.

    There’s this handy bit towards the end.

    Well there you’re opening up an entirely different pickle. The non-delegation doctrine, long since abandoned, would require Congress to do what Congress is told is has power to do. Instead, we have branches of government swapping roles (with the executive as the usual benefactor, though the judicial is not without guilt) and the creation of all sorts of entities that blur the lines between who is in charge of what. It is neither necessary nor proper to completely transfer the power that Congress itself has been charged with using.

    But all this is besides the point. We can argue about the Fed for days (though I would rather wait until you read the books I linked to above, as they’re chock full of good information), but the issue at hand isn’t that crucial to the argument I made in this post. So, back to regularly scheduled programming…

  6. Connor
    March 6, 2009 at 3:54 pm #

    On the other hand, the Fed provides a perfect example of the division I here illustrate. There are few spheres of influence that so deeply affect public policy and private life as does monetary policy. The erosion of individuals’ wealth through inflation and the artificial creation of credit (and thus the business cycle) are executed by unelected individuals who have no oversight, have never been audited, and whose policies and practices are completely secret. We’re not even told what M3 is any more, and the banks borrowing newly created money from the Fed enjoy complete secrecy in their transactions.

    Thus, the Fed’s leaders enjoy an inordinate amount of power to affect public policy, control private economic transactions, and steer the nation’s economy as a whole. They do so with a loose mandate granting all sorts of power to those in charge.

    Rule of law, or rule of men? Tough guess, I know…

  7. March 6, 2009 at 4:58 pm #

    I’ll take a look at the books when I have the time.

  8. March 7, 2009 at 8:24 am #

    B-burner,

    Nobody with an ounce of sense in their head wants to go back to the banking panics of the 1800’s.

    I really don’t understand how you can fall for the lie that is almost 100 years old. The entire reason the Fed was set up was on the promise that those panics and recessions would not happen anymore. How do you think they’re doing on that promise? Did we EVER have a depression before that? How long did those panics last? How long have recessions been since the establishment of the Fed?

    Do you REALLY believe we are better off now than before the Fed.

    Connor,

    I’m finding a flaw in your article here. It may just be a semantic issue.

    The proper rule of law recognizes the original and superseding law and ignores the illegitimate . . . subsequent law . . .

    I don’t necessarily believe that a “previous” law supersedes a subsequent law. In fact, that is one reason to have new representatives voted in — to pass new ones that effectively repeal old ones that were bad. (I realize that I omitted the parenthetical remark “illegal”. That brings me to my next point.)

    Instead, the Constitution was written on the premise that there is a hierarchy of laws — the Constitution being the highest.

    That said, the argument you make does satisfy this condition as well.

  9. Connor
    March 7, 2009 at 8:28 am #

    I don’t necessarily believe that a “previous” law supersedes a subsequent law.

    You are correct. However, I included the “superseding” portion to refer to previous law that cannot be amended by statute (as I said in the post), which means a higher law that requires additional procedures in voting to overturn or amend. This references the Constitution, as you suggest, and is what I meant by “previous and superseding”.

  10. Connor
    March 7, 2009 at 6:35 pm #

    Here’s a very thought-provoking article asking, in essence: to what extent will you obey unjust law (the rule of men)? Where will you draw the line? How long will you submit?

  11. March 9, 2009 at 7:53 am #

    The rule of law thus requires answering this fundamental question: in situations where there are two conflicting laws, which is to be obeyed?

    Hasn’t the Church pretty much answered that question with its “new revelation supplants old revelation” point of view?

    Hmmm. Why am I suddenly getting an uneasy feeling…?

  12. Clumpy
    March 9, 2009 at 8:59 am #

    “[The Constitution] mandates federal enforcement of illegal immigration (invasion)…”

    Connor, using Article 4 to justify Federal authority over illegal immigration by classifying it as “invasion” sounds like quite a bit of stretch. After all, states originally were allowed to create their own laws regarding immigration, which were overridden in 1817 by the Supreme Court:

    http://www.heritage.org/research/governmentreform/wm926.cfm

    Original intent seems to be on the side of the states on this issue. JeffT and are going to work a bit on a more comprehensive treatment of the subject to answer one question we still have:

    When was illegal immigration classified as a misdemeanor? (We already know that it wasn’t as much of an issue early on, but how was it dealt with initially?) Separate from the racism issue affecting immigration throughout history (first non-English Europeans, then Semitic, Asian and ethnic immigrants), how did cultural understanding change and influence law?

    Anyway, it’s not a cowardly rejection of the Constitution that would lead a representative to reject the strained arguments in favor of federal enforcement of the same.

  13. Reach Upward
    March 9, 2009 at 1:10 pm #

    As much as I cherish the Federalist Papers, it is important to recognize that they represent the opinions that some of the Constitution’s most ardent supporters held during the ratification phase. The papers give us keen insight, but there were other (not entirely invalid) opinions on every single issue addressed by the papers. Also, in the case of each Publius, we can see that when it came to actual implementation, they sometimes found reality different than their previous ideals.

    We must also recognize that regardless of what the papers say, what was ratified as the supreme law of the land was the Constitution itself. Each phrase of the document had been carefully crafted after long debate and compromise. The final language did not fully incorporate the views of Hamilton, Madison, and Jay, regardless of what they later wrote.

    This is why we have an official system for determining what the Constitution says and means. Like you, I frequently find my personal interpretation of the Constitution at odds with the official interpretation. But that does not mean that the official version is illegitimate.

    Each of us should certainly argue our point of view. We should seek to bring people to office that will support those views and seek to legitimately move policy in that direction. But I think it is possible that we harm our cause when we repeatedly suggest that the state of our system in relationship to the Constitution is mostly illegitimate.

  14. Jeff T.
    March 9, 2009 at 4:59 pm #

    Reach Upward,

    I like to compare it to a team sport with a written, official rulebook and referees to enforce the rules. If the rulebook says, for example, that a ball that crosses a certain line is out of bounds, then the referee is duty-bound to call it such when it happens. The referee may likely take liberties in interpreting ambiguous cases, such as when the ball is on the line, rather than across it.

    In an official game, a referee may decide to disregard the rulebook, and maliciously refuse to call a ball out of bounds, even if it is so by most rational standards. Perhaps the team that was wronged exhausts every allowable means to correct the unfortunate situation, but the referee’s decisions are affirmed. In this case, there are two situations: the final score is valid in the sense that it was ratified by those vested with authority to do so; but also, the game was played differently than what is written in the rulebook, and was therefore a violation of the rules.

    I’m of the opinion that the referee does not have authority to take liberties with the rules beyond ambiguous cases. Thus, the game described above violates the rules, even though the game officials declared otherwise.

    In the same way, we can have a government that violates the Constitution, even though those vested with authority to interpret the Constitution have decided to neglect it.

  15. Reach Upward
    March 9, 2009 at 5:36 pm #

    I absolutely agree with the sports analogy. However, there is also political reality. The contract (in this case the Constitution) is only valid to the point that those governed by the contract agree to uphold it. Most Americans have only a general idea of the actual provisions of the contract. I think it is obvious that a plurality of Americans have few problems with the way the Constitution is currently being manhandled by the system.

    For that to change, a politically viable core must exist that can foster more appropriate behavior. I do not see such a groundswell at present.

  16. John C.
    March 10, 2009 at 12:33 pm #

    Who, aside from humanity, can be considered the author of the law? Who, aside from humanity, is interpreting the law? You’ve got a false dichotomy going here.

  17. Clumpy
    March 14, 2009 at 1:48 am #

    Two separate ideas in this post so I hope I’m not unclear:

    John, I guess that the debate is really whether lawmakers are themselves bound to protect “universal” rights that all humans should be entitled to. The difference is more of a mindset than a quantifiable thing: are we just as bound by law and prudence in our lawmaking as those who will be bound by our laws will be by the same? Thus a true believer in law will respect and uphold existing laws or go through legal channels to change laws they believe to be unjust, while corrupt or shortsighted officials will hammer their will singlemindedly into the legal system. Thus the destruction of the “rule of law.”

    Unfortunately, many people interpret the “dichotomy” this way:

    * The rights I’m interested in are God-given rights that no one can take away.

    * The rights you’re interested in are unnatural rights that God and nature never intended man to have.

    If we interpret the Constitution in a particular way, clearly everybody who disagrees with us is an opponent of the same document and enemy of freedom.

  18. Clumpy
    March 14, 2009 at 2:00 am #

    An example of a singleminded, self-righteous view from Connor’s link (Judge Napolitano):

    What’s more, Congress can only use its delegated powers to legislate for the general welfare, meaning it cannot spend tax dollars on individuals or selected entities, but only for all of us. That is, it must spend in such a manner — a post office, a military installation, a courthouse, for example — that directly enhances everyone’s welfare within the 17 delegated areas of congressional authority.

    Using the general welfare clause to make such a claim is kind of ridiculous – it’s hardly a contorted argument that even directed spending can benefit the general welfare. After all, a post office only benefits those who send and receive letters, the same way that roads only benefit those who already have the equipment and the need to use them. How would this be any different from funding a program to buy mailboxes for all citizens who do not have them? (This benefits the general welfare by allowing citizens previously without mailboxes to receive mail, and citizens with mailboxes to be assured that every letter they send will be received.)

    A new courthouse benefits every lawyer, judge and defendant who takes advantage of the legal system. How is this any different from partial federal funding of NPR, which benefits only the citizens who tune in but is still offered to all across the U.S.?

    (Note that I’m only holding Judge Napolitano to his own argument – other Constitutional limits may preclude funding of entities such as NPR.)

  19. John C.
    March 14, 2009 at 8:01 am #

    As far as I can tell, you are agreeing with me that it is a false dichotomy. If that’s the case, cool. If not, could you clarify?

  20. Clumpy
    March 14, 2009 at 9:10 pm #

    I think that people often confuse religious philosophy with Constitutional philosophy, or rather their own interpretation of it. Thus they intentionally create the dichotomy you mentioned by attempting to make their own political philosophy the only moral “right” (and in fact the only “natural” way to govern) and thus they make their laws into an end rather than a means.

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