The Rule of Law

by
Andrew P. Napolitano

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by Andrew P. Napolitano: We
Are at a Turning Point

The greatest
distinguishing factor between countries in which there is some freedom
and those where authoritarian governments manage personal behavior
is the Rule of Law. The idea that the very laws that the government
is charged with enforcing could restrain the government itself
is uniquely Western and was accepted with near unanimity at
the time of the creation of the American Republic. Without that
concept underlying the exercise of governmental power, there is
little hope for freedom.

The Rule of
Law is a three-legged stool on which freedom sits. The first leg
requires that all laws be enacted in advance of the behavior they
seek to regulate and be crafted and promulgated in public by a legitimate
authority. The goal of all laws must be the preservation of individual
freedom. A law is not legitimate if it is written by an evil genius
in secret or if it punishes behavior that was lawful when the behavior
took place or if its goal is to solidify the strength of those in
power. It also is not legitimate if it is written by the president
instead of Congress.

The second
leg is that no one is above the law and no one is beneath it. Thus,
the law’s restraints on force and fraud need to restrain everyone
equally, and the law’s protections against force and fraud must
protect everyone equally. This leg removes from the discretion of
those who enforce the law the ability to enforce it or to afford
its protections selectively. This principle also requires that the
law enforcers enforce the law against themselves. Of course, this
was not always the case. In 1628, the British Parliament spent days
debating the question “Is the king above the Rule of Law, or
is the Rule of Law above the king?” Thankfully, the king lost
– but only by 10 votes out of several hundred cast.

The third leg
of the Rule of Law requires that the structures that promulgate,
enforce and interpret law be so fundamental – Congress writes the
laws, the president enforces the laws, the courts interpret the
laws – that they cannot be changed retroactively or overnight by
the folks who administer them. Stated differently, this leg mandates
that only a broad consensus can change the goals or values or structures
used to implement the laws; they cannot be changed by atrophy or
neglect or crisis.

The values
in America are set forth in the Declaration of Independence, and
the governmental structures in America are set forth in the Constitution.
The former – that our rights are inalienable and come from our Creator
and not from the government – is not merely a recitation of Thomas
Jefferson’s musings. The Declaration is the articulation of our
values then and now, and it, too, is the law of the land.

The Constitution
was written – largely by James Madison – to define and to limit
the federal government, and it was quickly amended by adding the
Bill of Rights so as to be sure that natural rights would be respected
by the government. This tension between the power of the majority
– at the ballot box or in Congress – and the rights of the minority
– whether a discrete class of persons or a minority of one – is
known as the Madisonian dilemma. Stated differently, the Constitution
provides for protection against the tyranny of the majority.

In our system,
the power to resolve the dilemma is reposed into the hands of the
judiciary, and those who have that power are to resolve it without
regard to popularity or politics. Their oath is to the Constitution.
They have the final say on what the laws mean. If they follow the
Rule of Law, they will invalidate that which the government has
done and which is properly challenged before them and which is not
authorized by the Constitution. Their very purpose is to be anti-democratic,
lest the popular majority takes whatever lives, liberties or property
it covets. In return for life tenure, we expect judicial modesty,
and we demand constitutional fidelity – not political compromise.

In our era,
the violations of the Rule of Law have become most troublesome when
the government breaks its own laws. Prosecute Roger Clemens for
lying to Congress? What about all the lies Congress tells? Prosecute
John Edwards for cheating? What about all the cheating in Congress
when it enacts laws it hasn’t read? Bring the troops home from the
Middle East? What about all the innocents killed secretly by the
president using CIA drones? Can’t find a way to justify Obamacare
under the Constitution? Why not call it what its proponents insisted
it isn’t – a tax?

We live in
perilous times. The president acts above the Rule of Law and fights
his own wars. Congress acts below the Rule of Law by letting the
president do whatever he can get away with. And this summer, the
Supreme Court rewrote the Rule of Law.

What do we
do about it?

Reprinted
with the author’s permission.

July 19, 2012

Andrew P.
Napolitano [send
him mail], a former judge of the Superior Court of New Jersey,
is the senior judicial analyst at Fox News Channel. Judge Napolitano
has written six books on the U.S. Constitution. The most recent
is It
Is Dangerous To Be Right When the Government Is Wrong: The Case
for Personal Freedom. To find out more about Judge Napolitano
and to read features by other Creators Syndicate writers and cartoonists,
visit creators.com.

Copyright
© 2012 Andrew P. Napolitano

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