Roper, the laws all being flat? This country's planted thick with laws from coast to coast– man's laws,
not God's– and if you cut them down—and you're just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake." Robert Bolt, A Man for all Seasons
John Adams and his fellow founders differed on many political questions, but they shared a common admiration for the Roman Republic, before it became a military dictatorship under Julius Caesar. One of their dreams was to establish a nation which would be based on an ideal that Rome had at least sought after: “the rule of law, not of men.” In other words, they desired to create a society which would not be governed by the desires of a powerful dictator, or a powerful mob, but by laws, written in conformance with commonly understood and objective standards, equally applicable to all, rulers and ruled alike, and administered by tribunals themselves created in accordance with appropriate rules. The twin evils sought to be overcome by the rule of law are Jacobin mob anarchy on the one hand, or dictatorial tyranny on the other hand.
What Does the Rule of Law Mean?
"We believe in being subject to kings, presidents, rulers, and magistrates, in obeying, honoring, and sustaining the law." Joseph Smith. 12th Article of Faith of the Church of Jesus Christ of Latter-day Saints.
The rule of law means that a society passes and enacts and enforces rational laws in a manner designed to ensure government by the consent of the governed, for the benefit of its citizens, so that its citizens are protected against harm to their persons, their property, their security, and their liberty, both from the government (i.e., being protected from tyranny) and from their fellow citizens (i.e., being protected from anarchy).
Here’s my own personal working list of the elements necessary to establish and maintain the rule of law:
(1) The system by which laws are created, administered, and enforced, is, in and of itself, subject to previously adopted procedures, which procedures contain such safeguards (including transparency and accessibility) against corruption as are necessary to ensure government by the consent of the governed. For shorthand, let’s call this the rule of established procedures.
The rule of established procedures can be accomplished, for example, via a written and publicly adopted Constitution, which prescribes which members of the government are responsible to create, administer, or enforce the laws, how those members of the government are chosen, what the scope and limitations are upon their power, what procedures they must follow, how public their deliberations must be and what ethical rules they must follow to avoid corruption. Ideally, in case weaknesses are identified in the procedures, the Constitution or other procedural source ought to have methods in place for amending and altering and revising its terms, through public action, which should not be so difficult, as to rarely be invoked, but which should also not be so easily invoked, as to lead to frequent upending of the entire system, since one of the points of even striving to maintain the rule of law is to promote a somewhat stable society.
(2) Laws must be neutrally adopted and objectively and equally applied [allowing for exceptions to equal application based on objective criterion, such as mental incapacity], regulating, promoting, or restricting only particular behaviors, not particular classes or groups of persons, without favoring any class of people over another merely on the basis of their identity (with exceptions based on objective criterion-such as an exemption for mentally incapacitated persons), and should therefore be applied equally to the members of the government as to the citizenry, and should avoid preferring the powerful over the powerless (or vice-versa), the rich over the poor (or vice-versa), the religious over the non-religious (or vice-versa), one race over another (or vice-versa). Let’s call this the rule of objective neutrality.
There are two main evils the rule of objective neutrality is designed to protect against: One is a government whose members consider themselves above the laws. Such a government, which is seen and treated as separate from, and superior to, the people, soon becomes a government of rulers over subjects, instead of being a government full of servants to their fellow citizens. This violates the principle that if a government is not of the people, for the people, by the people, it has no justifiable basis for its existence. It also leads to bad laws, as a legislator (or chief executive, or judge, or police officer, or school teacher) who is protected from the laws which she enacts (or enforces or interprets or administers) has little reason to care about the negative adverse consequences of laws which will not apply to her.
As stated by James Madison in Federalist Paper No. 51: “If men were angels, no government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
The second evil which the rule of objective neutrality is designed to protect against, is the use of the law by one politically favored group or another, as a tool to promote their own power at the expense of the power or liberty of some other group. As David Mamet puts it in “The Secret Knowledge: On the dismantling of American Culture” laws should be “decided upon in tranquility, without reference to the individual, and based upon behaviors” so that the governed will know what behaviors are and are not acceptable. When laws created on this basis are “cast aside or vitiated by reference to merit, fairness, or compassion, all of which are inchoate, subjective, and nonquantifiable” justice is corrupted.
(3) The whole point of government is to protect the citizenry from the dangers inherent in living in anarchy. If anarchy and chaos were preferable to government and law, there would be no need for any government or any laws, and men would not seek to establish them. Our individual laws ought therefore to pass a similar test: they ought to have some rational basis for existing, and, what is more, their existence ought to make the nation or state where they apply a better place for its citizens to live in than it would be if the law in question did not exist. Since all laws come with costs (including the inherent loss of liberty which every law represents, together with whatever other costs or unintended consequences any law may cause), in order to pass this test, a law should do more good than harm. Let’s call this the rule of balanced rationality, that a law which has no valid basis for existing, or which does more harm than good, violates the rule of law.
C.S. Lewis put it like this: “It is easy to think the State has a lot of different objects–military, political, economic, and what not. But in a way things are much simpler than that. The State exists simply to promote and to protect the ordinary happiness of human beings in this life. A husband and wife chatting over a fire, a couple of friends having a game of darts in a pub, a man reading a book in his own room or digging in his own garden–that is what the State is there for. And unless they are helping to increase and prolong and protect such moments, all the laws, parliaments, armies, courts, police, economics, etc., are simply a waste of time.” From Mere Christianity.
There might be many objections to including this tenet on a list of the elements of the rule of law, as it is a subjective and substantive test, that has more to do with the reasons why people will argue for or against the passage of a particular law, than whether that law was enacted in accordance with procedures designed to safeguard government by the consent of the governed. It is a question for the legislature, rather than the judiciary (which we somehow have come to believe is the only forum where the question of a law’s legitimate passage in accordance with the precepts of the rule of law may be properly examined). Still, I will insist on its inclusion, and should perhaps have placed it first, because it represents the reason and purpose for even striving to establish and maintain the rule of law in the first instance. If the rule of law does not serve to promote rational laws, and to protect against being governed by arbitrary and capricious Alice-in-Wonderland absurdities, then the rule of law is not worth promoting in the first place, and we’d be better off going back to the rule of men, and hope that, once in a while, we get a benevolent dictator.
Moreover, when laws are not respected, respect for the rule of law wanes, and the rule of law itself becomes more difficult to maintain. Accordingly, the rule of balanced rationality is, in my opinion, just as vital to maintaining the rule of law as anything else on the list. As stated by liberal 7th Circuit Justice Diane Wood, in a Chicago Law Review article, “The Rule of Law and Times of Stress” 70 University of Chicago Law Review 455 (2003): “Neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” Or, as put by a conservative commentator, Niall Ferguson, in The Great Degeneration, How Institutions Decay and Economies Die (Penguin Press 2013), “The rule of law has many enemies. One of them is bad law.”
How the Rule of Law Is Being Subverted Today.
America! America! God mend thine every flaw, Confirm thy soul in self-control, Thy liberty in law!
If the rule of law is one of the three legs of the stool of Western Civilization, then western civilization is in trouble.
Let’s start with the rule of established procedures, and the rule of balanced rationality. In the United States, the established procedures designed to produce nonarbitrary, rational, laws, are set forth in our Constitution, and include legislators who enact the laws, a judiciary which interprets the laws, and an executive branch which enforces and administers the law. State Constitutions typically set up similar systems. Of these three branches of government, the least democratic, and therefore the most potentially dangerous, is the judiciary. As legislative activists have come to realize, amending the Federal Constitution, or a State Constitution, through the procedures established therein is, as it should be, somewhat difficult. There have been far more unsuccessful, than successful, attempts to amend the U.S. Constitution. This is a good thing. It makes for stable government.
But there is another way, subversive of the intent of the document itself, to amend the U.S. Constitution surreptitiously. This can be done by getting Justices of the U.S. Supreme Court (or Federal Circuit Court Judges or even District Court Judges in areas where the U.S. Supreme Court has not yet ruled), to suddenly discover that the U.S. Constitution contains provisions within it which nobody has ever read before. Many concerns have been expressed by conservatives over the controversial decisions that various Federal Courts have imposed upon us by reading penumbras and emanations from the Constitution which no one had theretofore ever seen, and which were clearly contrary to the text and original intent thereof, allowing Judges to amend our Constitution by judicial fiat and decree. The best and most influential treatment of this disease is still Robert Bork’s The Tempting of America. But there is another even deeper concern, which is the manner in which lower court Judges, and State Court Judges, have followed the Supremes’ example, and decided that the law is now a merry playground in which a judge can decide a law means whatever he or she wants it to mean, in order to reach a decision which he or she wants to reach, to favor a party or political cause with which the Judge agrees, regardless of the actual text of the statute.
This makes for bad politics, as when the New Mexico Supreme Court, in order to thump people of faith for their backward ways, and educate them in the new order of things, recently upheld a statutory anti-discrimination fine against husband-wife private business owners, for declining, on religious grounds, to photograph a same-sex commitment ceremony. In order to reach this result, the Court obtusely and deliberately misread a statute which merely prohibited a private business from discriminating based on a potential customer’s sexual orientation (a perfectly constitutional law, if it had been applied correctly and as written). But in determining that the law was applicable to the facts before them, the Court ignored and rejected the business owners’ testimony and arguments that they would not have refused to provide portrait or other photography services to any potential customer, due to that customer’s sexual orientation. Rather, they only objected, on religious grounds, to attending and participating in, and thereby impliedly endorsing, a ceremony or other conduct which the business’s owners opposed on religious grounds. In order to reach this result, and then contend the result did not violate the Constitutional right against infringements on the “free exercise of religion” the New Mexico Supreme Court had to interpret “sexual orientation” incredibly broadly, and contrary to how it was defined by and for purposes of the legislation, as including “conduct”; and then had to read the “free exercise” clause, in contrary fashion, incredibly narrowly, as not involving “exercise” at all, but merely private worship, thoughts, and beliefs, which are apparently only to be protected if not freely "exercised" or acted upon, outside the mind. Thus, a statute which protected against discriminating due to a customer’s sexual orientation, was read to require, under threat of State coercion, thousands of dollars in penalties, or the loss of one’s ability to practice one’s chosen profession, participation in conduct engaged in by the potential customer which a private photographer might find offensive, while the free “exercise” of religion clause of the Constitution was read as narrowly as possible, as not protecting conduct.
But in less politically charged cases, the damage is just as real. If judges now get to make up the law as they go along, rather than having to follow the laws which were actually written in accordance with the procedures set forth in the Federal or State Constitution at issue, the laws will be applied differently depending on whose courtroom one is in, and will be arbitrary, and the system which creates this arbitrariness is to be found only in the judge’s own mind, not in the legislature from which the law originated in the first place. One of the points of the rule of law is to allow individual citizens and businesses to order their affairs in accordance with laws, knowing ahead of time how those laws are most likely to be applied. As an ABA educational web page on the importance of the rule of law puts it: “The rule of law also requires that people can expect predictable [not arbitrary] results from the legal system[.] Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a rule of law does not exist.” But with every Judge now having learned from the Supremes that the law doesn’t always say what it says, and the text of a statute doesn’t always mean what it means, if you can find a way to read your own personal political preferences into the statute, and thereby re-write it as though you were your own superlegislature, the rule of established procedures and balanced rationality are both violated.
As a working lawyer appearing in front of actual judges, I can tell you this problem is very real. The inability to say to a client, here is what your contract says, and here is what the statute says, therefore you are likely to experience “X” if you go to court, is a problem that arises fairly frequently. Perhaps not in every case. Sometimes things really are clear enough and black and white enough to give your client a 90% or better likely outcome scenario regarding their matter. But, more often than should be the case, you can’t do much to predict the outcome because the legislature wrote an ambiguous statute and/or the judge may decide how he wants to come down based on other factors and then set forth his results-oriented reasoning after the fact. This lack of predictable outcomes causes real losses of real money in the real world. It is a tax on business, and therefore on employment, and therefore on the entire economy.
With respect to the rule of objective neutrality, our government no longer even pays it lip service. A massive federal regulation of healthcare is passed, which will have devastating consequences for certain existing health care providers, insurers, employers, and their customers. But, if you work for the Federal Government, or for someone who contributed to Obama’s campaign, have no fear: the government will exempt itself from the legislation, or from certain of its more onerous provisions, and will also exempt its politically well connected friends and allies. A special tax you must pay if your health care insurer is overly generous? Yes, if you work in private industry. No, if you work for a large union. Why not violate equality and favor some politically favored groups over others, in a country which has decided it is perfectly appropriate to pass laws requiring governmental entities to prefer some businesses over others when they apply for a government contract, based on the skin color of the business’s owner, or to discriminate against Asians when they apply for college, because their devotion to academic rigor spoils the University's plans for perfectly balanced diversity.
The rule of objective neutrality is also violated by the sheer volume of laws and corresponding regulations the U.S. government, the States, and their various bureaucracies (working in a largely secretive and non-democratic manner) now produce. Who can keep up with this stuff? No one. Therefore, who is more at danger of unknowingly violating one or more of these thousands of statutes and regulations, as they go about their daily business: the rich, who can afford the lawyers and CPA’s and compliance advisors who can assist them with this morass? Of course not. It is small businesses who just have to operate under the risk that one day they’ll discover something they were failing to do is now going to shut them down. It made world headlines when a citizen of Tunisia burned himself in protest against his inability to obtain a license for his small street vending business, which sold produce from a wheelbarrow, but repeatedly faced police harassment. Meanwhile, in America, how long does it take to obtain a license to sell lemonade on a street corner, and how many bureaucracies must one go through to get the job done?
In his book, The Great Degeneration, Niall Ferguson argues that the rule of law has been supplanted in the west with the rule of lawyers. He reviews the incredible costs on productivity and innovation, and the incredible drag on economic prosperity, which the U.S.’s increasingly flawed legal system have created.
As reported by Ferguson, when U.S. business owners who have moved their operations overseas were asked to list the top areas where they saw the U.S. as falling further behind the rest of the world, their top ten responses included the following: the effectiveness of the political system; the complexity of the tax code; regulation; the efficiency of the legal framework; flexibility in hiring and firing.
We have too many laws, and they are too arbitrary, and they are unfairly and unequally applied. And this is one more way in which we are voluntarily harming ourselves.
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