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Rule of Law versus Unlimited Rule

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President Bush is fond of reminding Americans of his devotion to the rule of law. On May 3, 2002, he told an audience that he “always” lectures foreign leaders “about the need for there to be rule of law … and our country is a shining example of that.”

Unfortunately, the current U.S. “rule of law” is a parody of what the Founding Fathers understood by that term.

Early Americans venerated the law and saw it as the key to safeguarding their freedom. Thomas Paine wrote in 1776 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.”

In 1780, the Massachusetts Bill of Rights stated as its goal the establishment of a “government of laws and not of men.” John Phillip Reid, in his unrecognized classic 1986 study, noted, “It is sometimes assumed by legal scholars that law was command during the era of the American Revolution, but that is an error. To a remarkable extent law even in the eighteenth century was still thought of as it had been in medieval times, as the sovereign and not as the command emanating from the sovereign.”

Americans of the Revolutionary era glorified the law because it was seen as a means to restrain government and to secure the rights of the citizens. Nobel Laureate Friedrich Hayek defined the rule of law in 1944: “Government in all its actions is bound by rules fixed and announced beforehand — rules which make it possible to foresee with fair certainty how the authority will use its coercive powers.” Hayek later observed, “Because the rule of law means that government must never coerce an individual except in the enforcement of a known rule, it constitutes a limitation on the powers of all government.” The rule of law aims to minimize discretionary power.

The rule of law is a recognition of the government’s obligation to the citizenry. Political theorist Joseph Towers wrote in 1774, “In arbitrary governments, all are equally slaves. . .. A vague and indefinite obedience, to the fluctuating and arbitrary will of any superior, is the most abject and complete slavery.” Arbitrary power means personal subjugation to the bureaucratic and political rulers who can exercise their personal will over the subjects.

Unfortunately, the modern interpretation of the term “law” is an invitation to the abuse of power. The English jurist Sir William Blackstone declared in 1765 that “law is not a transient order from a superior to or concerning a particular person or thing, but something permanent, uniform, and universal.” The U.S. Supreme Court declared in 1907, “‘Law’ is a statement of the circumstances in which the public force will be brought to bear upon men through the courts.”

But nowadays laws increasingly exist to bind citizens in arbitrary ways. Laws are often carved in political expediency. A law is simply a reflection of the momentary perception of self-interest by a majority of a legislative body. It is binding only until enough congressmen find it in their self-interest to repeal or revise it. Law is increasingly something that government does to private citizens — until further notice.

The flood of laws and revisions of laws amounts to perpetually changing the rules of society to the point at which the United States degenerates into a Third World condition. Laws are always on the eve of the next sweeping revision, creating an atmosphere of legal instability. Neither the legislators nor the bureaucrats now have any sense of the sanctity of law — of the idea that law should not be changed simply for momentary political convenience.

The more often the law is revised, the more that law becomes simply a series of arbitrary political commands that must be obeyed, a grant of unlimited power to government officials. The more often government officials change the rules by which individuals will be judged, the more those individuals will be left to the government’s mercy, since most citizens do not know and cannot possibly understand the law and regulations they must obey.
Loss of respect for the rule of law

In recent decades, support for the classical concept of the rule of law has evaporated; instead, competing bands of intellectuals champion the executive branch or Congress or judicial activism or some other fad. Rather than focus on the actual operations of government agencies, political thinking is often characterized by a “Do it now!” philosophy. Discretionary power has been granted to bureaucrats by many laws because congressmen don’t have the courage to say openly what they want the bureaucracy to do, leading to government by stealth.

Arbitrary power is the mirror image of the rule of law. Benjamin Constant beautifully expressed the danger of arbitrary power in his 1815 book, Principles of Politics:

Arbitrary power destroys morality, for there can be no morality without security. . .. Arbitrariness is incompatible with the existence of any government considered as a set of institutions. For political institutions are simply contracts; and it is in the nature of contracts to establish fixed limits. Hence arbitrariness, being precisely opposed to what constitutes a contract, undermines the foundation of all political institutions.

The essence of arbitrary power is government’s refusal to issue clear rules limiting its prerogative to punish private citizens.

At some point, the sheer accumulation of penalties and threats in the statute book fundamentally changes the citizen’s relation to the government. Rather than a government of laws, it becomes a government of threats, intimidation, and browbeating. When the law books reach a certain length, there is little or no difference between laws and arbitrary commands, because few people know what the laws or regulations actually are.

Because there can be no level playing field between the citizen and the state, every expansion of the state means increased subjugation of the citizen. Every increase in the cost of achieving justice from the state is a de facto subsidy for government oppression. The higher the cost of legal self-defense, the more likely that government agencies will abuse their power. Government employees who carry out vendettas against citizens almost never have to pay either the government’s or the citizen’s legal bills; their incentive is to stretch their power as far as possible.

Every increase in the cost of traversing government administrative processes increases the arbitrary power of government employees over every citizen who cannot afford hefty legal bills. Sen. John Taylor wrote in 1822, “There are no rights where there are no remedies, or where the remedies depend upon the will of the aggressor.” And with the constantly expanding power and prerogatives of federal agencies, those remedies depend more than ever before on the bureaucratic aggressors.

While Bush and his attorney general, John Ashcroft, perennially invoke the rule of law, the Bush administration has consistently swollen the power of the federal government over American citizens. The USA PATRIOT Act created a bevy of new standards to allow federal agents to trounce Americans’ privacy, to secretly read their email, and to arrest and perpetually hold aliens who have not been convicted of any crime. The recently passed act creating the Homeland Security Department also vested new discretionary and intrusive power in federal agencies.

In his April 30 proclamation of Law Day 2002, Bush declared,

Our Founding Fathers believed that a strong and independent judiciary was a cornerstone of democracy…. In criminal matters, judges help to ensure that the innocent remain free and the guilty are appropriately punished. This Law Day, I encourage all Americans to reflect on the vital work performed by our federal judiciary in upholding the rule of law and on the importance of a robust and independent judiciary in our system of government.

But the USA PATRIOT Act and various Bush administration “emergency regulations” have hamstrung the ability of judges to challenge or oversee the actions of federal agencies.

It will take more than Bush’s invocations of the rule of law to protect Americans from newly empowered federal agents. In his day-to-day actions, he has shown far more enthusiasm for placing the federal government on a pedestal than for submitting to the Constitution — perhaps the ultimate expression of the Founders’ vision of the rule of law.

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    James Bovard serves as policy advisor to The Future of Freedom Foundation. He has written for the New York Times, The Wall Street Journal, The Washington Post, New Republic, Reader's Digest, Playboy, American Spectator, Investors Business Daily, and many other publications. He is the author of a new e-book memoir, Public Policy Hooligan. His other books include: Attention Deficit Democracy (2006); The Bush Betrayal (2004); Terrorism and Tyranny (2003); Feeling Your Pain (2000); Freedom in Chains (1999); Shakedown (1995); Lost Rights (1994); The Fair Trade Fraud (1991); and The Farm Fiasco (1989). He was the 1995 co-recipient of the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought, and the recipient of the 1996 Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. His book Lost Rights received the Mencken Award as Book of the Year from the Free Press Association. His Terrorism and Tyranny won Laissez Faire Book's Lysander Spooner award for the Best Book on Liberty in 2003. Read his blog. Send him email.