Beyond the rule of law

By Diane Alden
web posted May 29, 2000

Every time I hear a TV or newsmagazine pundit pontificate on the 'rule of law' I want to ask them for their definition of what that is. During the Elian Gonzalez affair there were numerous times some talking head like Ted Koppel or Peter Jennings or even Bill O'Reilly of Fox would intone "but we must follow the rule of law." It finally dawned on me that they had confused bureaucratic rule or judiciary rule making with the rule of law.

The old political science definition of the rule of law says, "the Rule of Law particularly stresses the protection of individual rights from the arbitrary interference of officials."

Obviously in the Gonzalez case the rule of law was violated. But the episode in Little Havana is only one tiny incident as we come to the end of the old political science notion of what constitutes the rule of law. The death of that tradition has been going on for decades; the courts have helped to do it in. The people who make up the courts have absorbed the ideology and agenda and trends from the larger society. Unavoidable perhaps but the way the courts interpret the Bill of Rights and the Constitution is now based on factors other than the intentions of the Founders.

Groups which should be watchdogs for the Bill of Rights cherry pick which amendments they will protect. Activist groups such as the ACLU will only defend First Amendment rights or a grab bag of amendments, which deal with the "right to privacy."

The gun rights advocates put all their effort into saving the Second Amendment. The property rights advocates are concerned with the 4th, 5th, and 10th Amendments. Pro-life groups care only for the "right to life" and so on.

Rather than join in a common effort they fritter away their very powerful efforts in scattered attempts to head off the rush towards government despotism. We dash in frenzy towards the reign of rules inflicted by the abdication of Congress, the activist Court, the bureaucracy and more recently the Executive Branch. Through various executive orders Bill Clinton has turned the notion of separation of powers on its head. However, very seldom do the congress or the courts act on behalf of the Constitution in this regard. While Clinton continues to challenge the Constitution there is no stopping him since Congress has blown the impeachment card. In the case of the war in the Balkans, Clinton has usurped the power of Congress in conducting that war by extending it indefinitely. Only Congress has the power to declare and make war. The President is the Commander-in-Chief not a Napoleon allowed to act at his own discretion. Worse yet Bill Clinton has set a standard of behavior which other less bone headed men or women may use to make the Executive Branch even more dictatorial than it already is.

What is even more ominous for the separation of powers and the Constitution is the fact that the next president, in the person of George W. Bush, agrees with his actions in the Balkans specifically Kosovo. I suspect what America will get if Bush is elected is just one more affable nice guy who has no notion and could care less about the Bill of Rights or the Constitution. The ignorance of those in power is so complete and so mind boggling that it takes the breath away. Get used to it, such quaint notions as separation of powers is dead. Politicians will get on their high horses and pay lip service but our "rule of law" in the old definition is gone and notions of the separation of powers at the very best is dormant if not in a total state of rot.

There are perhaps only a handful of men in Congress, in the media, in education, and the general public who understand how far we have strayed from the rule of law. Even less do most people understand the reasons. In Congress the only man that bases his votes strictly on Constitutional grounds is Ron Paul. Bob Barr and a couple of others do it a more often than the rest but most in Congress only trot out the Constitution when it suits them. It wouldn't be a bad idea if someone passed a bill requiring that every member of take a course on the documents they swear to defend and uphold.

In this world of polls and focus groups the people usually look to the TV pundit or newsman or the bureaucracies to tell him what the rule of law is.

This is preposterous. But most Americans have come to accept the notion that bureaucratic rules have replaced the rule of law. Remember the rule of law is the protection of the individual's rights above those of the state. The total confusion exosts since politicians, the media, and the elites benefit from the confusion and ignorance. It is to their benefit that they pretend nothing has changed. But, unless a person has been living under a rock for the last 40 years the "rule of law" now means whatever the government says it means.

The rule of law no longer protects the citizen from government and it's a pity that for the most part the citizen does not understand nor does he seem to care.

The average American has grown used to the fact that government informs him that the "law" is a license, or a permission slip, or a piece of paper which allows him to carry on his daily business. He is told the "rule of law" is protecting some class or species of plant or animal, or administering a bureaucratic regulation. Sometimes he is told the "rule of law" is protecting people from themselves as in the case of tobacco or drugs.

The average guy is too busy paying taxes and supporting his family to notice.

He goes along and accepts what government says about how much water toilets are allowed, or that tobacco use verges on a federal crime, or that a breach of political correctness is akin to murder. The Congress won't protect him and the Courts are too busy interpreting and administering the billions of words of law to pay attention to such mundane tasks as protecting the citizen from government. Unfortunately, the citizen has become acclimated and as long as the government or the courts leave him alone he doesn't get involved.

A Sea Change

These days Americans may be allowed to talk about the grossest sex acts in a public school but not about God. The ACLU and even the libertarians are content with that. The Second Amendment folks aren't going to get too exercised about property rights or First Amendment issues. They are all too busy cherry picking their pet causes. If all these groups meant business regarding the protection of their liberties under the Bill of Rights they would combine forces under one banner and call themselves the League to Save the Bill of Rights or some such.

In any event, the elites will continue to have control because they control the terms of language, they create obedience to their notion of the "rule of law" by making language conform to their notions. Various forms of murder are now called choice or mercy killing. Yet people are not allowed the "choice" of where they send their children to school. The courts against all logic have decided by their interpretation of the First Amendment that this kind of "choice" is a breach of the law. Surely in the core of their being those who sit on the Courts know this is not what the Founders meant when they put the First Amendment in the Constitution. But our courts will give us the rationale that "times have changed" and we are much more diverse now so no one should be inflicted with another persons religious beliefs nor should taxes be used to educate children in a private or parochial school. The courts ignore the Founders own words, they igrnoe the fact that the Foudners placed an extreme importance on the spiritual heritage of Americans. But then again the courts have long ago ceased to be concerned about the wishes of the Founders.

The courts won't tell you the rule of law has gone the way of the buggy whip.

That would disturb their power and prestige. They don't care one whit that the judiciary, executive orders, and bureaucratic regulation have supplanted congress. The courts wouldn't dare say anything because someone might get the notion that the state was losing its legitimacy thus creating a true Constitutional crisis. The elites want to avoid this at all costs. You will never see the courts admit that creating 70,000 pages of regulations in the federal registry has made the "rule of law" burdensome and antithetical to freedom and liberty. That in a better world most of those laws would be declared unconstitutional.

You will not hear a peep from the courts that Congress has abdicated and regulatory agencies now define the "rule of law." The courts aren't totally to blame they would have to create hundreds more courts in order to keep track of all the regulatory law. The sad fact is that the Courts will not tell Congress in any meaningful and cohesive way that it needs to get a grip.

No Court is going to slap Congress upside the head and tell them to become the branch of government which determines the rule of law under the guidelines established in the Bill of Rights and the Constitution.

Unfortunately, no Court will inflict the KISS rule on the Executive or the Legislative branch, the "keep it simple stupid" rule. Which would make law simple enough so that a lawyer might be able to understand the "rule of law" and even Joe Six-Pack might have a clue.

In perverse sort of way, the events surrounding the Gonzalez case are a Godsend. It has highlighted the abdication of Congress and the excesses of the Executive along with the power and scope of the bureaucracy. It has shown the inability of the Courts to do anything but adjudicate when it is necessary. But it also shows how profoundly irrelevant that adjudication can be when faced with bureaucratic intransigence and an out of control executive branch. It highlights the fact that a clever executive and a willing executive branch flunky can use the court against itself.

Janet Reno either must be the most confused lawyer on the planet, the dumbest, or the most Machiavellian as she consistently interprets the law in the government's favor. No wonder the FBI is having fits. Surely the good people at this agency must weep over what this Justice Department has done to the "rule of law" and what Congress and the Courts will not do to uphold it.

Surely people realize that unless an extremely able and dedicated constitutionalist is elected in November nothing much will change.

Abraham Lincoln, once said: "…if the policy of the government upon vital questions affecting the whole people is to be…fixed by the Supreme Court…the people will have ceased to be their own rulers and resigned their government into the hands of that eminent tribunal."

Noted jurist and once prospective candidate for that body, Robert Bork, remarked in his book "Slouching Towards Gomorrah, " There seems no possibility of retrieving democratic government from the grasp of the Supreme Court, which now governs us in the name of the Constitution in ways not remotely contemplated by the framers and ratifiers of the Constitution.

I love Rush Limbaugh and listen to him almost everyday. However, he invariably maintains the importance that the next President be a Republican.

For many reasons he is right. But I doubt it will change the complexion of the courts as Rush asserts. Judge Bork relates a statement that Lino Graglia, professor of law at the University of Texas has made regarding the notion of the importance of Republican appointed Supreme Court Justices. Graglia contends: "Eleven consecutive appointments to the Court by Republican presidents pledged to change the Court's direction have not resulted in one overruling of a single major ACLU victory or even halting the flow of ACLU victories…The Court will continue to serve as the mirror, mouthpiece, and enacting arm of a cultural elite that is radically alienated from and to the left of the ordinary citizen."

Bork suggests the only way to turn this around is a constitutional amendment making its rulings subject to democratic review. He further maintains, "…our Bill of Rights were designed to prevent the federal government from becoming as oppressive as British rule was perceived to be…As it departs from the constitutional text and history that give our rights life, rootedness, and meaning…the Supreme Court brings itself and the entire concept of the rule of law into disrepute.

Richard Brookhiser noted journalist states, "The goal of modern government-not just the Clinton administration-seems to be to produce a passive populace, used to intrusion and habituated to obedience. Voting and litigation are allowed as safety valves, although fewer of us vote (partly because litigation so often nullifies the will of elected representatives)"

I suspect the great fear among ordinary people is that no matter who they vote for in November the status quo and the powers-that-be will remain in charge. Ordinary people will go along because they are still allowed a little of what they earn. There is always the vague hope that when social security or some other program is "saved" perhaps then they will get back some of their money and freedoms. Or perhaps when the "war" on drugs, or saving the environment, or the end of other vices is accomplished than the paramilitary intrusions and attacks on the Bill of Rights will cease. Underlying it all is that at some miraculous future date government will be downsized and things will return to a balance and as they once were.

Latest Travesties Against the Bill of Rights

Congressman Bob Barr's office informs us that in the here and now the Clinton Administration's electronic surveillance policies show that wiretaps increased by 20% last year, setting an all time government record. The Executive Branch report to Congress also shows where these wire taps were used in a court of law convictions are at an all time low. Just as in the case of gun contro,l the laws become more important than the results because laws give power to the government and therefore give it control.

Meantime you have our supposed saviors in the Republican Party like the dim bulb Republican Orrin Hatch of Utah seeking to stick it to the Bill of Rights one more time. As a sponsor of the Justice Department backed Methamphetamine Anti-Proliferation Act the "war" on drugs is another excuse to make war on Americans and also destroy the Bill of Rights at the same time. The DoJ says it provides "important and necessary tools in the war on drugs." It also provides tools to war on who ever the government sets it sights on. It will give the DoJ and other law enforcement groups the right to go into your house without a warrant on any pretext, IRS, guns, drugs, whatever crime du jour they think you have committed. They will be able to make lists of your property, take info off your hard drive, search your underwear drawer or do whatever and not have to tell you about it till months later. Hatch can come up with this gosh awful piece of stuff but he can't be bothered to stop the appointment of over 300 Clinton administration judicial appointments to the federal bench, or investigate the egregious damage done the 4th Amendment in the Gonzalez case. The people of the state of Utah can do better than Hatch.

It is their patriotic duty in order to save the Bill of Rights and the rest of America. Either that or the next Congress needs to yank his chairmanship of the powerful Judiciary Committee.

For now we may all be secure in our mandated seat belts or liberated from second hand tobacco smoke as we are "saved" by the likes of Orrin Hatch. Congress goes about dismantling the Bill of Rights and the Courts and the Executive act as neither check nor balance. Will we be safe from government as the real danger to our national health?

Who is really looking out for our best interests as stated in the Bill of Rights? The niggling fear for many Americans is that the next target of government "rule of law" will be the next door neighbor, the pastor, the teacher, the journalist, or themselves.

Unless we return to strict adherence to the Constitution no one will ever be secure from the state. The left and the right better take heed. They better pull together on these Bill of Rights issues or none of their causes or pet amendments will be left standing in any meaningful way.

It is an everlasting shame that we are giving up the "rule of law" for the rule of men in the name of some "war" or to buy an illusory security. Only a pitiful handful in government care about this fact the rest are too ignorant or don't care or they know exactly what is going on and are complicit. What is worse is that the power elites have bought our silence and our allegiance with our own money and vague unfulfilled promises. We the people continue to fall for it.

That is why we need term limits, overhauling the executive and judiciary, school choice, bailing out of the UN, a thorough gutting of regulatory agencies, and petitioning to bust up the monolithic media mergers. Our survival as a free people depends up it.

Diane Alden can be reached at and her website

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