August 15, 2010

"A PEOPLE OR A CITY IS FREE...:

Rule of Law: The Great Foundation of Our Constitution (Matthew Spalding, 08/11/10, First Principles)

A principle that itself is quite old and long predates the United States, the rule of law is the general concept that government as well as the governed are subject to the law and that all are to be equally protected by the law. Its roots can be found in classical antiquity. The vast difference between the rule of law as opposed to that of individual rulers and tyrants is a central theme in the writings of political philosophers from the beginning. In the works of Plato and as developed in Aristotle’s writings, it implies obedience to positive law as well as rudimentary checks on rulers and magistrates.

In Anglo-American history, the idea was expressed in Magna Carta in 1215. In its famous thirty-ninth clause, King John of England promised to his barons that “No free man shall be taken, imprisoned, disseized, outlawed, or banished, or in any way destroyed, nor will he proceed against or prosecute him, except by the lawful judgment of his peers and the Law of the Land.” The idea that the law is superior to human rulers is the cornerstone of English constitutional thought as it developed over the centuries. It can be found elaborated in the great seventeenth-century authorities on British law, Henry de Bracton, Edward Coke, and William Blackstone. The ultimate outcome of the Glorious Revolution of 1688 in England was permanently to establish that the king was subject to the law. [...]

Over time, the rule of law had come to be associated with four key components. First, the rule of law means a formal, regular process of law enforcement and adjudication. What we really mean by “a government of laws, not of men” is the rule of men bound by law, not subject to the arbitrary will of others. The rule of law means general rules of law that bind all people and are promulgated and enforced by a system of courts and law enforcement, not by mere discretionary authority. In order to secure equal rights to all citizens, government must apply law fairly and equally through this legal process. Notice, hearings, indictment, trial by jury, legal counsel, the right against self-incrimination—these are all part of a fair and equitable “due process of law” that provides regular procedural protections and safeguards against abuse by government authority. Among the complaints lodged against the king in the Declaration of Independence was that he had “obstructed the administration of justice, by refusing his assent to laws for establishing judiciary powers,” and was “depriving us in many cases, of the benefits of trial by jury.”

Second, the rule of law means that these rules are binding on rulers and the ruled alike. If the American people, Madison wrote in Federalist 57, “shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate any thing but liberty.” As all are subject to the law, so all—government and citizens, indeed all persons—are equal before the law, and equally subject to the legal system and its decisions. No one is above the law in respect to enforcement; no one is privileged to ignore the law, just as no one is outside the law in terms of its protection. As the phrase goes, all are presumed innocent until proven guilty. We see this equal application of equal laws reflected in the Constitution’s references to “citizens” and “persons” rather than race, class, or some other group distinction, as in the Fifth Amendment’s language that “No person shall . . . be deprived of life, liberty, or property, without due process of law.” It appears again in the Fourteenth Amendment’s guarantee that “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” The rights of all are dependent on the rights of each being defended and protected. In this sense, the rule of law is an expression of—indeed, is a requirement of—the idea of each person possessing equal rights by nature.


....insofar as it lives under its own laws."



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Posted by Orrin Judd at August 15, 2010 8:27 AM
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