“Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?” ~James Madison (Federalist 62)
As our Nation moved from being under the thumb of British Rule and an unwritten Constitution they established a “Rule of Law” through Constitutions. Many people are unaware of the fact that, after the Declaration of Independence was signed, many of the colonies established Constitutions for their states as an almost immediate response. Some of these State Constitutions included Declarations of Rights. In all cases they clearly defined the political systems of their state establishing a Rule of Law in each State. In doing so, long before the war for Independence was won on the battlefield is was first proclaimed through the Declaration of Independence and in the colonies by throwing off their English Charters and replacing them with new Constitutions.
Those Constitutions reflect an unanimity in the view of governmental structure that reflected the view of the American People of the role of Government in Society. In each case, as far as the governing bodies, these were negative charters which were intended to limit the powers of those Governing Bodies.
Our Founders, whether that be founders of the state governments or of the federal Government, understood that man, being an imperfect being, was prone to error. They provided these written documents for us to be the rules of law of the governance of the people. They provided these written documents so the citizens of the States would be able to read for themselves what the limitations of government was. They did this because they were concerned about the consent of the Governed.
We also have an elected representative form of Government. Those bodies are divided into three branches of government so that all powers would never be in the hands of one body where they could so easily be abused. This was certainly true in limiting the powers of the Governors of the states since no one individual should have that much power over the people.
Under a Representative form of Government that is also under a Rule of Law the elected representative has a dual responsibility. First they are to represent the people but that representation must be in alignment with the Rule of Law, or the Constitutions of each State. There is a third part to this though, and that deals with delegated powers in relationship to the consent of the governed.
No individual can delegate powers to any other individual that they themselves do not possess. If my neighbor is having economic difficulties, regardless of my own feelings about the situation, I can never delegate to them the authority to steal from the other neighbors. I am left free to help that neighbor to the best of my ability, but I cannot authorize them to do something that is beyond my power to delegate to them. This same is true of our legislators. If it’s not true in a government, then we no longer have a representative government. It doesn’t matter how many people think something is a good idea, a just government, representative of the people, cannot assume an authority that the people themselves cannot delegate to them.
Understanding that this is what we were given in our States, our states convened to establish a Federal Constitution to replace the Articles of Confederation which many felt were inadequate in governing these United States Of America. If we understand the Rule of Law in the states, these delegates to the Convention had a responsibility to uphold their State Constitutions by limiting the powers of the Federal Government to matters only of federal significance that could not be regulated adequately or justly by the individual states.
A written Rule Of Law creates and establishes an order in society. When that Rule of Law is established for the protection of the rights of the people it is supposed to be representing, we create just governments. This is a society where laws are established from preventing me from doing harm to my neighbor while also protecting my neighbor from doing harm to me. This is a society where my rights to the things that belong to me, my property, is protected by government where that protection is so sacred that I have a right to physically and by force defend that property from the aggression of others. In such a society there is a relative order and there is a relative peace where neighbors can disagree in their political views but they are limited in that expression by a rule of law that forbids them from forcibly making me surrender to their views. Churches can exist side by side with different denominational views in their expression of their faith but are restricted from forcing others, against their will, to abide by those views. That is diversity in the sense of a just government.
John Locke put it like this “All Mankind…being equal and independent, no one ought to harm another in his life, health, liberty or possessions.” Locke would go on to explain that the primary reason we enter into a society (establish governments) is for the mutual protection of our right to property.
Thomas Jefferson put it this way
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,”
All of this changes when the Rule of Men, with no regard to the written Rule of Law, begin to govern. That becomes the root of division. That is the root of chaos in society. Mankind is fickle; our views on things change over our lifetime. We can be nuanced by experiences in life that force us to re-evaluate our positions on issues. Mankind, not restricted to a set Rule Of Law but moved by a Rule of Men through opinion creates instability because the laws and their intents can change at the whim of whoever is power.
Madison explained it like this “What is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” (Federalist #51)
We aren’t angels so we need laws to restrict us from doing undo harm to our neighbors and to protect us from our neighbors doing undo harm to us. Those we elect to represent us are not angels as well, they need a “Rule of Law” that creates internal controls over them. That is where our Constitutions come in to play. Our Constitutions provide the people with an avenue of accountability where the rules are established but it remains up to us to hold those we elect to that accountability.
As we have watched Government grow, we have seen the establishment and empowerment granted to the myriads of Departments, Agencies and Commissions of government. Essentially our legislators have created a forces that has the ability to regulate (legislative), to execute those regulations (executive) while also attaching fines, fees and penalties for those not in compliance (judiciary-since they are the judge and juror in the enforcement of these regulations).
As the public becomes outraged by a specific action, like the actions of the IRS in targeting specific groups, our outrage can then be directed at the Agency or an individual in that Agency and away from the legislators where we seem to forget that they were the ones who granted this authority to begin with. If that agency is exceeding their authority, the legislators are supposed to be the overseers. If they can’t oversee, which is obviously the case, then those powers have to be reined in. The news story then becomes about that personality while ignoring the issues that something like the Department of Education at the Federal level has no Constitutional authority to even exist much less to have the combined powers of Executive, Legislative and Judiciary.
This is where we see the most progressive encroachments of the Rule of Man ignoring the Rule of Law resulting in this assault on our liberties concerning life, liberty and property.
The funding of these Departments, Agencies and Commissions is also creating much of the financial strain on our economy. The Federal Government taxes us to fund these created bodies and then those bodies in turn, using federal grant and subsidy in a well-played scheme that would put organized extortion to shame to hold influence over our State Government. The State Agencies do the same to our local government. They regulate them to death and then promise relief through grant and subsidy that requires more dependence on these bodies. It allows them to drive agendas that for things like Common Core and Agenda 21 and to do so under the radar of the elected legislators who aren’t overseeing what’s happening. In the process, they keep granting these bodies more and more authority. We are seeing with the Act 5 legislation concerning common Core (inappropriately called the Student Success Act). This 600 page bill is intended to overwhelm the average person. Who is really going to actually sit down and try to make sense out of a 600 page bill written in a legal language that few of us can understand? Fortunately we have people who do just that. You can read more about this bill here: https://whatiscommoncore.wordpress.com/2015/02/21/student-success-act-to-crush-religious-freedom-private-school-autonomy-parental-rights-no-on-hr5/
It once again brings us back to Madison who said “It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.” (Federalist #62)
In Federalist 62 Madison would go on to say “Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uniformed mass of the people. Every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. This is a state of things in which it may be said with some truth that laws are made for the few, not for the many.”
Sadly, the intended Government is no longer the government we have. This is not so much because the “Rule of Law” through our Constitutions have changed but rather that the Rule of Men has been allowed to ignore the “Rule of Law” in those Constitutions. The Government advocated for by Madison in his Federalist debates in defense of the Constitution isn’t what we see today. The result of this has produced a form of tyranny and has generated the polar divisions of society in America that are becoming more and more hostile towards one another.
While we have seen abridgements of the Rule of Law in previous administrations, our current administration is bent on replacing “Rule of Law” with his own vision in his efforts to fundamentally transform America. America now stands more divided and far less diverse that it was. This is precisely what will happen when the Rules of Men violate the Rule Of Law in the restrictions placed on those who govern through the Constitutions.