Years ago you may have heard President George W. Bush speak of the “rule ‘uhh’ law”.
What IS the ‘rule of law’, and why is it the single most important element of a free nation, and how is it threatened today?
This is an argument that will undoubtedly have to be placed before the Supreme Court of The United States, at some time. But it is so patently obvious that it would be a shame for it to require such a motion. The very act of asking for a ruling on what must be the single most important ‘given’ of this country is shuttering.
John Adams, writing in the Massachusetts Constitution, Part The First, art. XXX (1780) wrote this about the rule of law:
“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.”
Writing in Common Sense (1776) Thomas Pain said:
“…the world may know, that so far as we approve of monarchy, that in America THE LAW IS KING. 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.”
Perhaps the most applicable explanation of the ‘rule of law’ is contained in the University of Iowa’s presentation (http://www.uiowa.edu/ifdebook/faq/Rule_of_Law.shtml):
“The rule of law does not have a precise definition, and its meaning can vary between different nations and legal traditions. Generally, however, it can be understood as a legal-political regime under which the law restrains the government by promoting certain liberties and creating order and predictability regarding how a country functions. In the most basic sense, the rule of law is a system that attempts to protect the rights of citizens from arbitrary and abusive use of government power.”
The ‘rule of law’ has been viewed by its definitions, for which there is no ‘precise’ such thing. It is high time it is viewed by its consequences, and therein define what the ‘rule of law’ actually is. The Chief Justice of the Supreme Court of Pakistan knows what it really is.
In this country, it is a simple concept.
The legislative branch passes a law. The executive branch signs it into law (makes it active) and therefor enforces the law. The judicial branch decides if it complies with the constitution.
If the legislative branch fails to enact a law, there is no law to rule.
If the executive branch fails to enforce the law, there is no rule of law.
If the judicial branch fails to uphold the law, and there is constitutional authority to do so, then there is no rule of law.
Likewise, if the judicial branch upholds a law that does not have constitutional authority, there is no rule of law.
Civil cases arguably violate the rather mouth full of a name, legal principle called “Nulla poena sine lege”, which means (in Latin) that a person “cannot be penalized for doing something that is not prohibited by law” (http://en.wikipedia.org/wiki/Nulla_poena_sine_lege). Any request for ‘new law’ from a court that winds up finding for the plaintiff penalizes a person, without a law prohibiting it, before it happened.
If the executive branch or judicial branch fail to uphold or enforce a law, passed with majority of congress, with constitutional authority, then the branch not doing so is usurping the power of the legislative branch and that violates the constitution’s separation of powers.
A law passed by congress, signed into law by the executive cannot be ignored or the rule of law is not upheld. It is up to the courts to enforce the rule of law when the other two branches fail to.
How important is the ‘rule of law’?
Very simply stated, without the ‘rule of law’, laws do not matter and neither does the country. That would mean the society such laws are enacted to protect would be without protection, without the inalienable rights demanded by this nation’s Declaration of Independence.
Whenever there is a law on the books and it is not enforced the rule of law suffers.
Whenever there is a law on the books and people decide to ignore it, the rule of law suffers.
Laws are passed to curtail improper behavior, provide protection and protect the common good, but each time the application of those laws are ignored, the rule of law suffers.
A suffering rule of law means, there is no respect for the law.
Law is like currency. If there is no respect for it, or trust in it, it is worthless. With currency, an economy will come crashing down if it is not trusted, but with the rule of law it takes time to take its toll.
While this country was touting the ‘rule uh law’ in regards to Iraq and other nations, what is the state of the ‘rule uh law’ here?
This, according to Justice of the Supreme Court of The United States, Anthony Kennedy, speaking to the nation’s lawyers in 2006 (http://starbulletin.com/2006/08/06/news/story02.html):
“Make no mistake, there’s a jury that’s out. In half the world, the verdict is not yet in. The commitment to accept the Western idea of democracy has not yet been made, and they are waiting for you to make the case…”
“He said the rule of law has three parts: it must be binding on all government officials, it must respect the dignity, equality and human rights of every person, and it must guarantee people the right to enforce the law without fear of retaliation.”
“‘Americans must understand that if the rules of law have meaning, such as hope and inspiration for the rest of the world, it must be coupled with the opportunity to improve human existence,’ Kennedy said.”
“‘For us, law is a liberating force. It’s a promise, it’s a covenant that says you can hope, you can dream, you can dare, you can plan,’ he said. ‘We must explain to a doubting world where the verdict is still out.'”
Justice Iftikhar Muhammad Chaudhry, the Chief Justice of Pakistan’s Supreme Court addressed the Punjab Bar Council just last week, he said (http://www.dailytimes.com.pk/default.asp?page=2007%5C01%5C26%5Cstory_26-1-2007_pg7_53) “the rule of law is the lifeline to constitution and democracy”.
It is no wonder President Bush argued for the ‘rule uh law’ in Iraq as it is the very glue that holds a nation together. Is anyone else, other than former Justice Kennedy, worried about the ‘rule of law’ here in America?
Where Thomas Pain placed two options on the table of the ‘rule of law’; (“…that in America THE LAW IS KING. 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.”) there is actually a third option: there being no rule of law at all.
It cannot be a graduating scale. The rule of law is a binary condition. Either – or. Either the rule of law reigns supreme or it does not. Cutting away at law, disregarding law, disrespecting law, ignoring law does not mean the rule of law is just a little bit in trouble. If one law is not upheld there is no rule of law.
A country without the rule of law, or the rule of the King is no longer a country. We do not have a King. Our laws are being ignored, selectively enforced and created from thin air, after the fact in courts.
Where does this lead?
To the unthinkable: to a nation that is what the liberal mind wants it to be; a nation without law, a nation without restrictions for the common good; a nation where you can do anything you want; a nation without a moral compass, a nation without a respect for a greater power, a nation without a line drawn that indicates the limit, in other words: anarchy.
The rule of law is not upheld when a person can sue another for damages for having done something to himself, and prevail, when there was no law prohibiting such a thing before the legal action identified it.
The rule of law is not upheld when a person can file a valid complaint of illegal activity and have it ignored into oblivion by the very persons under oath, charged with upholding that law.
The rule of law is not upheld when a judge finds the applicability of a constitutional amendment to rule ‘Nulla poena sine lege’, after the fact, for damages upon a person or entity that did not violate an existing law.
The ‘rule of law’ is not upheld when the legislative branch seeks to usurp the authority of the executive branch, even though unbinding statements.
The rule of law is not upheld when for expediency, the laws of the land are ignored by perpetrators and prosecutors in favor of the fear of Nulla poena sine lege in the form of political correctness in civil court.
The rule of law is not upheld when government agencies, charged with granting licenses for operation to public trustees fail to give the proper review.
The rule of law is not upheld when a nation’s border, already legally protected by laws of entry, is left defenseless by elected officials ignoring the laws they have sworn to uphold.
The rule of law is not upheld when anarchy is more powerful. In a nation of laws the King cannot stand up and put down the destruction of the nation.
If the courts will not force the rule of law, if the executive will not perform the rule of law, if the legislative will not create the rule of law to require the rule of law:
It is left to the people.