The American ideal is that we are “a nation of laws, not of men,” – John Adams
The United States follows a precedence set by the Magna Carta and British common law. We are a nation of laws that are applied equally to all citizens, including our leaders.
No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.
—Article 39, Magna Carta (1215)
The first 3 articles of the constitution make up the “Separation of powers” and defines each role’s extent of these powers. They provide the basis for our constitutional law, the checks and balances, the accountability of power and the framework in which our liberty is protected and the law of the land.
Article 1 – is about congress. They create the laws and the constitution uses many phrases such as “by law” or “according to law”, the “power to” Section 8 enumerates the powers given to congress, finishing with – To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof – So they are to make laws in order to execute their power, i.e. power by law. The goal is to provide a known framework for what can be expected, what can be done and through our representatives enacting and repealing laws we can use to control the power of congress and protect our freedoms.
Article 2 – is about the Executive Power. (Read my previous blog on executive power) but this article clearly lays out the role of the President to execute the laws of the land, with section 3 ending with this statement – He shall take care that the laws be faithfully executed, and shall commission all the officers of the United States – So, he has the power to execute the laws of the land and commission officers, that would help execute the laws. He cannot however make or change the laws, he must work with congress who does have that power, a check and balance. That is important because we must maintain the power to live under the laws of our choosing. The Declaration of Independence states that a government’s just power is derived from the consent of the governed.
“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….”
Article 3 – defines the 3rd branch of government, the judiciary, whose role is to make a judgment of actions vs acceptability defined by the law. Without political bias. Watch for an upcoming blog on Jurisdiction. We are guaranteed the right to a trial by jury to guard against political bias and the Rule of Man.
Note: The 4th power, the 4th estate, is us, the people, the power to watch and constrain government. Most often attributed to the media who is supposed to be our watch dog and help hold the government accountable to the Laws of the land.
“The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter. But I should mean that every man should receive those papers and be capable of reading them.” –Thomas Jefferson
Laws define what can and cannot be done, right from wrong, provide the framework in which our liberties are protected (our Life, Liberty and Property.) They provide: Transparency, Accountability, Predictability, Stability
It is easy to see, clearly defined what is acceptable, what is allowed, what will not be tolerated, right from wrong. We know each day what to expect and how to best proceed. We are not ruled by the whims of a man (Rule of Man), or even by the passions of faction. Our laws are not determined by a single person, but by we the people through our representatives.
We are a representative republic, not a democracy, to protect the minority, the individual being the ultimate minority of one. The passions of a majority cannot simply take away the rights of the minority. It is through this set of laws and due process (further protected by the 5th and 14th amendments) that the law must be applied equally and apply to everyone including our leaders.
If we allow favoritism, cronyism, exceptions to penalties allowed outside of the law, we will lose the transparency of law. More on this in Stability.
Laws are enforced. The role of the executive. Also the police power that is a power reserved to the state and not the federal government. But people who operate outside the law must be held accountable and pay the penalty defined in the law. Enforcement must be consistent, applied equally in like cases and of course based on the 8th amendment must be reasonable based on damages of the crime. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. We are all held to the same standard and laws are enforced.
If we know what is expected of us and what is and is not a crime we can control our actions accordingly and even self-police. We cannot be determined outside the law because we behave in a way that someone doesn’t like..
Sometimes it is said that man cannot be trusted with the government of himself. Can he, then, be trusted with the government of others? – Thomas Jefferson, in his 1801 inaugural address
An interesting but powerful twist on enforcement is the following quote from Martin Luther King, Jr. But note: willingly accepts the penalty…
I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.
—Martin Luther King, Jr.,
“Letter from Birmingham Jail” (1963)
We are protected by the 1st amendment of our right to: Petition the government for a redress of grievances.
Equal opportunity and a level playing field, we are all playing by the same rules! Note this does not guarantee equal outcomes. Nowhere in our founding documents were we guaranteed a certain quality of life or outcome of our actions. Only that we have our life, liberty and property and can use them in our efforts to achieve the outcomes we desired. People are not allowed to infringe on those basic rights. Hence the need for government.
Predictability means people in the same circumstances, as defined by the law, have the same rules. The 14th amendment states: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
That does not mean that laws do not discriminate. Of course they do. Laws are about discriminating against behaviors and actions deemed unacceptable by the governed, but they absolutely must apply equally to everyone.
“The United States is a nation of laws: badly written and randomly enforced.” — American rock musician Frank Zappa (1940-1993)
Obviously if this quote were an acceptable realization of the world we live in, there would be no transparency, accountability, predictability or stability and it we would be on the road to anarchy. I am sure that is how he felt. There are times it sure appears to be going in that direction.
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. — James Madison, Federalist Paper No. 51 (1788)
We must have a simple, clear and concise set of laws by which we live in order to preserve our freedoms, and the role of government is simply to protect us from force and fraud and uphold our laws!
The law is clear, hard to change and consistent. Every day I know clearly what is right and what is wrong. I don’t have to worry that my behavior yesterday is no longer lawful. Congress can be slow moving requiring super majorities in many cases. In reality that is what a filibuster is, the ability to force a super majority to decide on moving forward with a law. This stability truly provides the liberty for us to safely and productively go about our everyday activities.
We do not want a fast moving congress with rules and laws quickly changing. As James Madison said in the Federalist Papers, 62: 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; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?
In conclusion, we have so many laws on our books, many not enforced, the law is slowly losing its meaning. The press reports on violent crimes and the need for laws to stop them, when the perpetrator has already broken many laws to commit the crime. New laws on top of unenforced laws will not provide more protection, only infringe on our liberty. We have so many laws on the books now that we have all probably broken a law today. If we are all guilty of some randomly enforced law, are we not ruled by man (enforcing laws on a whim) and not law?