Do We Have a Government of Laws and Not of Men?

Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state.– Plato

…if the laws are to be so trampled upon with impunity, and a minority…is to dictate to the majority, there is an end put at one stroke to republican government…for some other man or society may dislike another law and oppose it with equal propriety until all laws are prostrate, and everyone will carve for himself. –George Washington on the Whiskey Rebellion

In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men. — Article XXX of the Massachusetts Constitution (John Adams)

Do we have a government of laws and not of men? John Locke, from whom the Founders drew much wisdom, argued that the preservation of property, i.e. “men’s lives, liberties and estates” is the foundation of civil order. In simple terms, an established, predictable set of rules “not to be varied in particular cases but to have one rule for the rich and poor, for the favorite at Court, and the Country Man at the Plough.”  The rule of law means that justice cannot be arbitrarily contrived to favor one group over another, or enforced for some groups but ignored to the benefit of others.

The government’s selective enforcement of federal immigration law is one example of arbitrary justice. So-called “sanctuary” cities like San Francisco, which contradict federal statutes, go years without comment or federal action. Arizona, however, is immediately sued by the federal government for enacting legislation that reflects federal immigration law.

If it be asked, What is the most sacred duty and the greatest source of our security in a Republic? The answer would be: An inviolable respect for the Constitution and Laws — the first growing out of the last… It is by this, in a still greater degree, that caballers, intriguers, and demagogues are prevented from climbing on the shoulders of faction to the tempting seats of usurpation and tyranny.

A sacred respect for constitutional law is the vital principle, the sustaining energy of a free government. –Alexander Hamilton, Letter No. III to the American Daily Advertiser, Aug. 28, 1794, in The Writings of Alexander Hamilton pp. 830-31.

The Justice Department’s decision not to prosecute members of the new Black Panther party is another example. Black Panther members were caught on tape intimidating voters, but political appointees in the Justice Department dropped the case.

In sworn testimony, a former D. O. J. attorney provided still another glimpse of the internal workings of the D.O.J. He quoted Deputy Assistant Attorney General Julie Fernandes advising D.O.J. employees that “the Voting Section will never or will not, at least while she is there, bring any more cases against blacks or other national minorities.” Such a policy threatens the integrity of elections and the very legitimacy of government.

When Congress balked at the creation of a rubber stamp Budget Commission in favor of a “credible” bi-partisan statutory commission, the President appointed his own.  Admittedly, this is not a groundbreaking departure from precedent and the rule of law, but it is another indication of this president’s willingness to circumvent the authority of other branches of government to enhance his own power.

In 1990, Congress enacted a $75 million liability cap as part of the Oil Pollution Act following the Exxon Valdez spill.  This is a ridiculously small amount considering the scope of the catastrophe.  But, that’s not the point.  Laws should not be changed retroactively because they are inconvenient.  BP has agreed not to seek protection under this cap, but one has to wonder what may have transpired had they not “agreed” to a $20 billion dollar “contribution” to the cleanup. The rhetoric out of the White House was fairly direct.  In Interior Secretary Ken Salazar’s words, “”Our job is basically to keep the boot on the neck of British Petroleum.”

Likewise, one has to question if the role of the legislative branch is becoming irrelevant in the face of arbitrarily applied Executive Directives?  Consider events surrounding the passage of the Health Care Bill.  When Congress was unable to garner enough voters for passage, the President stepped in with what is proving to be a meaningless promise prohibiting federal funding of abortion. The executive order provided the necessary cover for allegedly pro-life congressmen to vote for the bill.

Perhaps most troubling is the news that the President has moved forward with a hitherto unimplemented Bush directive authorizing the Joint Chiefs to compile “hit lists” of Americans suspected of terrorism.  This salon.com article lays it out pretty well.  It is ironic, that while this administration seems bent on blurring the distinction between American citizens and foreign combatants with its desire to afford enemy combatants trials in US civilian courts, it is willing to deprive actual Americans the same rights.

There is more and more evidence that the blind lady with the scales is apparently on holiday and someone neither blind nor impartial has taken her place.