Come On Sense

By Dr. Earl R. Smith II
Chief@ComeOnSense.com
www.ComeOnSense.com

At the very center of the American Republic rests an idea which was thought radical at the time the Founders wove it into the design for our government. They determined that the laws of the land were to be made only with the consent of the citizens and were to apply to all citizens equally. Prior to that time most countries had legal systems which provided special dispensations for the aristocracy and the monarchy. But the founders were determined to create a form of government under which even the president was subject to the laws of the land. They labored to create what James Harrington described as “the empire of laws and not of men”.[1]

This idea is so fundamental to the American form of government that, without it, the entire structure comes into question. A US government website puts it this way:[2]

For much of human history, rulers and law were synonymous – law was simply the will of the ruler. A first step away from such tyranny was the notion of rule by law, including the notion that even a ruler is under the law and should rule by virtue of legal means. Democracies went further by establishing the rule of law. Although no society or government system is problem-free, rule of law protects fundamental political, social, and economic rights and reminds us that tyranny and lawlessness are not the only alternatives.

• Rule of law means that no individual, president or private citizen, stands above law. Democratic governments exercise authority by way of law and are themselves subject to law’s constraints.
• Laws should express the will of the people, not the whims of kings, dictators, military officials, religious leaders, or self-appointed political parties.
• Citizens in democracies are willing to obey the laws of their society, then, because they are submitting to their own rules and regulations. Justice is best achieved when the laws are established by the very people who must obey them.
• Under the rule of law, a system of strong, independent courts should have the power and authority, resources, and the prestige to hold government officials, even top leaders, accountable to the nation’s laws and regulations.
• For this reason, judges should be well trained, professional, independent, and impartial. To serve their necessary role in the legal and political system, judges must be committed to the principles of democracy.
• The laws of a democracy may have many sources: written constitutions; statutes and regulations; religious and ethical teachings; and cultural traditions and practices. Regardless of origin the law should enshrine certain provisions to protect the rights and freedoms of citizens:
• Under the requirement of equal protection under the law, the law may not be uniquely applicable to any single individual or group.
• Citizens must be secure from arbitrary arrest and unreasonable search of their homes or the seizure of their personal property.
• Citizens charged with crimes are entitled to a speedy and public trial, along with the opportunity to confront and question their accusers. If convicted, they may not be subjected to cruel or unusual punishment.
• Citizens cannot be forced to testify against themselves. This principle protects citizens from coercion, abuse, or torture and greatly reduces the temptation of police to employ such measures.

Based on that strong statement, you might think that the rule of law is immutable – an unchanging fixture in the process of the government of the United States. But like most aspects of Mr. Madison’s design, things are not quite that simple. The rule of law is stronger or weaker depending on the attention (or apathy) of the American people and the tendencies (avarice, greed, self interest, short sightedness, etc.) of their elected representatives. During the debates, opposition to this rule was partially based on the idea that it would constrain the elite and clog the processes of government. Proponents of the rule were afraid that, without it, the true nature of all governments would hijack the Revolution and turn the American government into precisely the kind that the colonists had fled. This debate goes on today. Bur the founders resolved for the rule of law. Thomas Paine put it well in Common Sense.

“Society is produced by our wants, and government by wickedness; the former promotes our happiness positively by uniting our affections, the latter negatively by restraining our vices. The one encourages intercourse, the other creates distinctions. The first is a patron, the last a punisher. Society in every state is a blessing, but government even in its best state is but a necessary evil.”[3]

The fear of concentrated (and unbridled) political power – or this ‘necessary evil’ – was a primary concern during the formative years of our Republic. The founders had sharp memories of the costs of the rule of men. This rule had – over and over again – shown itself to be a disastrous formulation – particularly during times of crisis. In a letter to Noah Webster, Thomas Jefferson showed such concern:[4]

“It had become an universal and almost uncontroverted position in the several States, that the purposes of society do not require a surrender of all our rights to our ordinary governors; that there are certain portions of right not necessary to enable them to carry on an effective government, and which experience has nevertheless proved they will be constantly encroaching on, if submitted to them; that there are also certain fences which experience has proved peculiarly efficacious against wrong, and rarely obstructive of right, which yet the governing powers have ever shown a disposition to weaken and remove. Of the first kind, for instance, is freedom of religion; of the second, trial by jury, habeas corpus laws, free presses.”

Jefferson was concerned that the government – left to itself – would seek to limit these rights in the name of expediency and ‘national security’. The concern was so central to the founders that they quickly amended the constitution with the Bill of Rights in order to make it very clear that the government only had such power as the citizens had delegated to it and no power to avoid compliance with the laws of the land.

During our history this rule has been tested many times. The Tea Pot Dome Scandal, Tammany Hall, Watergate to name just a few, are examples of individuals acting to circumvent the law and reap benefits in doing so. More recently the current administration has mounted arguments that would seem to have the same effect – to limit and, in some cases, abrogate, the rule of law and replace it with the preferences of the president. In each of the historical examples, the rule was reestablished in its stronger form – resulting in trials, convictions and jail sentences for the transgressors. History awaits our response to the current assault on the rule of law. If we are lucky the results will be the same.

Most assaults on the rule of law start with an initial strategy – avoid the law. In the run-up to the Tea Pot Dome Scandal, President Harding 1921 – by executive order of the President – transferred control of naval oil reserves at Teapot Dome, Wyoming and Elk Hills, California to the Department of the Interior. Then in 1922, Albert B. Fall, U.S. Secretary of the Interior, leased, without competitive bidding, the Teapot Dome fields to Harry F. Sinclair, an oil operator, and the field at Elk Hills, Calif., to Edward L. Doheny. That same year these transactions became the subject of a Senate investigation conducted by Senator Thomas J. Walsh. The investigation determined that in 1921, Doheny had lent Fall $100,000, interest-free, and that upon Fall’s retirement as Secretary of the Interior (in March of 1923) Sinclair also ‘loaned’ him a large amount of money. The investigation led to criminal prosecutions. Fall was indicted for conspiracy and for accepting bribes. Convicted of the latter charge, he was sentenced to a year in prison and fined $100,000. In another trial for bribery Doheny and Sinclair were acquitted, although Sinclair was subsequently sentenced to prison for contempt of the Senate and for employing detectives to shadow members of the jury in his case. The oil fields were restored to the U.S. government through a Supreme Court decision in 1927.

When the strategy of avoiding the laws doesn’t work the next strategy is to break them and ‘get away with it’. In this case – as, for instance with Watergate, the criminals are well aware that their actions are contrary to the laws of the land. But they seek to use their position – political connections and contributions – and subterfuge – to violate them with impunity. This is by far the more insidious approach to breaking the rule of law. Motivated by greed or a thirst for power, politicians and businessmen conspire to break US laws. The ideologically rigid have seek to break them by executive fiat or simple flaunting of the laws. In each case, they have sought gain – mostly at the expense of the American people. By breaking the laws they achieve results that people who are playing by the rules simply cannot.

The pendulum begins it track back to the strict enforcement of the rule of law when the hubris of the offenders combines with a rising public disgust. Only when apathy is replaced by engagement can this happen. During Watergate, the public became dismayed – and then disgusted – by the behaviors and attitudes of their elected leaders. The result was a resurgence of the rule of law – criminal prosecutions and jail sentences. It was the activism of the American public that drove this process – the process of recovering the central gem of the founders design.

We cannot remain American citizens without the rule of law. Without it we will become subject to the rule of men – and the American experiment will be over. Each time that pendulum reaches its apogee of weakness, the world holds it breath. For if it does not start to swing back towards strength, the entire idea that a “government of the people, by the people, for the people, shall not perish from the earth”[5] comes into question.

Today we are facing the challenge again. But this time there seems to be a dearth of effective champions of the rule of law. The Speaker of the House seems more interested in political gain than the rule of law when she says that Congress will look into possible law breaking by the administration but recourse to punishment will not be on the table. Both candidates seem to want to avoid the issue – voting for a law which will grant prophylactic immunity to business executives who may have broken the law.[6] Habeas corpus has been suspended and the fourth amendment has been assaulted. The champions of the rule of law have yet to take the field. Where will they come from?

Americans need to be realists about this. Without the rule of law we become subjects rather than citizens. Neither the politicians nor the special interests will come to its defense – they are better off without it. The press is useless – completely defanged and domesticated.[7] The champions of the rule of law are the American people – the true descendants of the founders and heirs to their great gift to us. It is time to set the ship back on its true course – to reestablish the rule of law – to drive the criminals out of the government and into the prisons where they belong.

Think on this carefully. If a burglar breaks into your house and steals your most valued possessions, do you care if he is a republican or democrat? If the future of your children is taken from them, does the party affiliation of the thief really matter? The rule of law is so central to the spirit and sense of this country that, if we allow it to be taken from us, will it matter who was in office at the time it was taken?

Dr. Smith is a political and social theorist who lives in
Georgetown, Washington, DC

This entry was posted on Wednesday, July 30th, 2008 at 7:59 pm and is filed under Articles. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.