The Rule of Law

Did you vote for the president as a result of the political “issues” of the day? Did you vote for him because you are “pro-life” or pro-Second Amendment? But did you know that the president doesn’t actually control these issues? Nearly every president in history has campaigned on a promise of “hope” or “change”- but did they deliver? Do you hate a president you once endorsed because he didn’t deliver on his promises? But perhaps he never delivered on those promises, not because of some flaw or malicious intent, but rather simply because he can’t.

By far and large, apart from all of the other branches of government, the Congress was designed to be the most powerful branch of the Federal Government, holding the ability to even strip the other branches of government of their power. Congress may limit the jurisdiction of the Federal courts (including the Supreme Court) for whatever reason it chooses, or if Congress simply feels the Court(s) has/have gotten out of hand and run amok too far into the arena of judicial activism, control and limit the number of justices that are to sit on the Supreme Court, abolish all of the inferior Federal courts beneath the Supreme Court and pass legislation to ordain and establish an entirely new system of Federal courts as well as outline their jurisdictional boundaries. Congress may yank the purse strings on a rogue president thereby denying him the funds he needs to carry out any operations, completely ignore him if he gets too belligerent, override any of his attempts to veto legislation that is passed and require him to cease any military operations or otherwise give a full account of his actions to Congress. Congress may also impeach, convict and remove from office any Federal judge (including Supreme Court Justices), as well as the President and Vice-President, declare war on any foreign nation, coin and print money, raise and support an army- and more.

America, in a way not seen since the days of the Civil War, however, is split in two based upon party lines, with the president being placed front and center in the eyes of the people and voted into office largely on account of the issues they believe that he can change, while Congress is barely even mentioned in any scenario- despite wielding all the power behind the scenes. The jurisdiction of a rogue Federal court can be stripped and a rogue president can be put in his place. A united- and determined- Congress, on the other hand, would be virtually unstoppable. But does the average citizen truly know how important and powerful the United States Congress truly is? Do they know, in the words of Woodrow Wilson himself, that the “Senate always has the last word?”

I am an independent, sitting somewhere on the fence of the political spectrum, but I do not vote. I do not vote for several reasons, the forefront of all of them being that I simply do not believe in the vote for women[i], because I believe that men should be taking care of women and also because I believe that it should be the purview of men alone to both have the civic rights and obligations in the arena of war and politics. With this said, I do not mention the president in this posting as a way of throwing dirt on him in an attempt to discredit him in some way on account of hating him[ii] for issues he ultimately does not have the final say over. I also realize that no amount of civics education is going to ever change the fact that democracies do not work in the long term and that the average, ordinary citizen in any country will simply never acquire the understanding of politics or deep, intellectual reasoning ability to be able to see the real issues at play behind the smokescreen. I mention the president in all of this as a way to make a point. This nation, as previously mentioned, is divided in half based largely upon political party lines and hot-button issues such as abortion, immigration, and gun rights. This is not new. Though everyone always likes to believe that new and novel ways are being devised to deprive citizens of their rights and tear down the system of government, nothing either new or novel is in actuality taking place that has not happened before throughout our history.

This nation and the rule of law has been in peril many times throughout United States history- yet the nation nonetheless survived on through it all. The reason for this is that the system of government created by the drafters of the United States Constitution- that all famed “assembly of demigods”– works. This nation has pulled through various wars, rogue citizens’ militias intent on overthrowing the established government, violent warfare between citizens and a nation so split in two that half of the states ignored the established government to completely secede from it entirely, thereby refusing to acknowledge the superiority of the Federal government to preempt State action. Consider the words, below, of Abraham Lincoln in his special address to the United States Congress on July 4, 1861. On the outset, history must be given here that the rule of law was not being followed by the nation’s citizens, the Southern and border states were rebelling, and Lincoln’s address came in part because Chief Justice of the United States Supreme Court Roger B. Taney had sent a letter to Lincoln declaring his order to suspend the writ of habeas corpus to be Unconstitutional, as only Congress had the power to suspend the writ[iii]:

…And this issue embraces more than the fate of these United States. It presents to the whole family of man the question whether a constitutional republic, or democracy–a government of the people by the same people–can or can not maintain its territorial integrity against its own domestic foes. It presents the question whether discontented individuals, too few in numbers to control administration according to organic law in any case, can always, upon the pretenses made in this case, or on any other pretenses, or arbitrarily without any pretense, break up their government, and thus practically put an end to free government upon the earth. It forces us to ask, Is there in all republics this inherent and fatal weakness? Must a government of necessity be too strong for the liberties of its own people, or too weak to maintain its own existence…? So viewing the issue, no choice was left but to call out the war power of the Government and so to resist force employed for its destruction by force for its preservation… This would be disunion completed…It recognizes no fidelity to the Constitution, no obligation to maintain the Union; and while very many who have favored it are doubtless loyal citizens, it is, nevertheless, very injurious in effect… This authority [suspending habeas corpus] has purposely been exercised but very sparingly. Nevertheless, the legality and propriety of what has been done under it are questioned, and the attention of the country has been called to the proposition that one who is sworn to “take care that the laws be faithfully executed” should not himself violate them… The whole of the laws which were required to be faithfully executed were being resisted and failing of execution in nearly one-third of the States. Must they be allowed to finally fail of execution, even had it been perfectly clear that by the use of the means necessary to their execution some single law, made in such extreme tenderness of the citizen’s liberty that practically it relieves more of the guilty than of the innocent, should to a very limited extent be violated? To state the question more directly, Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated? Even in such a case, would not the official oath be broken if the Government should be overthrown when it was believed that disregarding the single law would tend to preserve it? It was decided that we have a case of rebellion and that the public safety does require the qualified suspension of the privilege of the writ which was authorized to be made. Now it is insisted that Congress, and not the Executive, is vested with this power; but the Constitution itself is silent as to which or who is to exercise the power; and as the provision was plainly made for a dangerous emergency, it can not be believed the framers of the instrument intended that in every case the danger should run its course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion…Whether there shall be any legislation upon the subject, and, if any, what, is submitted entirely to the better judgment of Congress… The forbearance of this Government had been so extraordinary and so long continued as to lead some foreign nations to shape their action as if they supposed the early destruction of our National Union was probable. While this on discovery gave the Executive some concern, he is now happy to say that the sovereignty and rights of the United States are now everywhere practically respected by foreign powers, and a general sympathy with the country is manifested throughout the world… In a word, the people will save their Government if the Government itself will do its part only indifferently well… It might seem at first thought to be of little difference whether the present movement at the South be called “secession” or “rebellion.” The movers, however, well understand the difference. At the beginning they knew they could never raise their treason to any respectable magnitude by any name which implies violation of law. They knew their people possessed as much of moral sense, as much of devotion to law and order, and as much pride in and reverence for the history and Government of their common country as any other civilized and patriotic people. They knew they could make no advancement directly in the teeth of these strong and noble sentiments. Accordingly, they commenced by an insidious debauching of the public mind. They invented an ingenious sophism, which, if conceded, was followed by perfectly logical steps through all the incidents to the complete destruction of the Union. The sophism itself is that any State of the Union may consistently with the National Constitution, and therefore lawfully and peacefully, withdraw from the Union without the consent of the Union or of any other State. The little disguise that the supposed right is to be exercised only for just cause, themselves to be the sole judge of its justice, is too thin to merit any notice… This sophism derives much, perhaps the whole, of its currency from the assumption that there is some omnipotent and sacred supremacy pertaining to a State–to each State of our Federal Union. Our States have neither more nor less power than that reserved to them in the Union by the Constitution, no one of them ever having been a State out of the Union… Having never been States, either in substance or in name, outside of the Union, whence this magical omnipotence of “State rights,” asserting a claim of power to lawfully destroy the Union itself? Much is said about the “sovereignty” of the States, but the word even is not in the National Constitution, nor, as is believed, in any of the State constitutions. What is a “sovereignty” in the political sense of the term? Would it be far wrong to define it “a political community without a political superior”? Tested by this, no one of our States, except Texas, ever was a sovereignty; and even Texas gave up the character on coming into the Union, by which act she acknowledged the Constitution of the United States and the laws and treaties of the United States made in pursuance of the Constitution to be for her the supreme law of the land. The States have their status in the Union, and they have no other legal status. If they break from this, they can only do so against law and by revolution. The Union, and not themselves separately, procured their independence and their liberty. By conquest or purchase the Union gave each of them whatever of independence and liberty it has… This relative matter of national power and State rights, as a principle, is no other than the principle of generality and locality. Whatever concerns the whole should be confided to the whole–to the General Government–while whatever concerns only the State should be left exclusively to the State. This is all there is of original principle about it. Whether the National Constitution in defining boundaries between the two has applied the principle with exact accuracy is not to be questioned. We are all bound by that defining without question… As a private citizen the Executive could not have consented that these institutions shall perish; much less could he in betrayal of so vast and so sacred a trust as these free people had confided to him. He felt that he had no moral right to shrink, nor even to count the chances of his own life in what might follow. In full view of his great responsibility he has so far done what he has deemed his duty. You will now, according to your own judgment, perform yours. He sincerely hopes that your views and your action may so accord with his as to assure all faithful citizens who have been disturbed in their rights of a certain and speedy restoration to them under the Constitution and the laws… …And having thus chosen our course, without guile and with pure purpose, let us renew our trust in God and go forward without fear and with manly hearts. ABRAHAM LINCOLN.

Lincoln had acknowledged in his address that he had “been called upon to “‘take care that the laws be faithfully executed’ and not himself violate the laws.”[iv] The president is not a lawmaker; his job is rather, as the very name of the branch he heads implies, to enforce the law[v]. Notice also that Lincoln in the above scenario did not reply to Taney directly but rather called Congress into a special session to address Congress personally to explain his actions and properly seek Congressional approval (as soon as was safely possible to do so). While the Supreme Court may hand down decisions, it ultimately has little power to enforce them.

Right now something akin to what is stated above can be seen in society- the rebellion of the states, the Supreme Court refusing to reopen cases regarding issues recently decided upon. Now the Supreme Court may refuse to pick up a case for a number of reasons (it does not have to say but rather can dismiss petitions for certiorari or appeal without comment), but sometimes the Court will refuse to hear a case solely because it does not wish to create new precedent during a sensitive time where the nation is either at war (and civil liberties will naturally be restricted beyond normal boundaries) or because the nation is undergoing a form of political upheaval where the Court’s decisions are either being ignored or the rule of law is not being followed. Despite the Supreme Court’s recent rulings, the States are nonetheless passing legislation in defiance of Supreme Court case law and they are largely doing so under the pretense that the current president will simply not enforce the laws that he or his political party doesn’t like. In other words, the States (most all of which are curiously Southern) are passing legislation because they believe they have a president who is “on their side” in a rebellion of sorts against the established order.

Lincoln’s aim was to preserve the Union and the rule of law. Though many in the Union were debating simply allowing the Confederate States to secede peacefully, history teaches that the Confederate force’s attacks on Fort Sumter started the war, and Lincoln, whose entire presidency was overshadowed by war, took the actions necessary to faithfully enforce the nation’s laws, preserve the spirit of law and values embedded in the Constitution and preserve the Union along with it. Although he ended up being the final casualty in the bloodiest war to be fought on American soil, the Union was nonetheless saved, the Rebel States and their citizens welcomed back to the Union, given a permanent place in the nation’s history, and the country moved on. The Constitution was amended to protect civil liberties. The checks and balances implemented by the Framers from the beginning worked, and the rule of law prevailed.[vi]

But what happens if the system stops working? The Supreme Court may hand down decisions, but it cannot enforce them. The law is the law (although it most certainly is not always just and there are many laws that should, in fact, be struck down and new legislation crafted to overrule those laws), but what if the President refuses to enforce it or follow it? Congress may stop him, compel him through various means or pass legislation to address any grievance or serious issue that society faces, but what if Congress, split in two on account of the country’s division, is too weak to act? If Congress cannot act, the Executive must make quick and decisive action to save the Union and rule of law- but what if he won’t? What if he- and a majority of his party- believe he himself is the law?

I will make a summary here, and that summary is that there are too many people making decisions. America was created as a Republic. It was left to the individual states to decide how the electors of the Electoral College should be chosen. It was left to Congress to make the laws, an independent judiciary, set apart from popular opinion, to wisely interpret their legality and a single unitary executive– at least partially at the command of Congress- to enforce them. But what if the president doesn’t believe in an independent judiciary[vii] and political upheaval, civilian rioting and ultimately war cause the civil courts in their entirety to vacate and cease to function? The question is, what happens then? Nothing lasts forever. The very fact that the United States Constitution has held intact for over two centuries is a world record, but what would succeed it? Democracies always commit suicide in the end, because it is a fact of life that majority rule cannot for long uphold the rule of law nor can the majority of the citizens of any given population truly sit in reasoned judgement on the issues and reason rationally about them. As I have always said, there’s a reason why the number of citizens in any given population will always far outnumber the amount of wise judges-who will always be few in number.

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[i] I have a tag titled “the vote” on this site, to be found here https://whatswrongwithequalrights.wordpress.com/tag/the-vote/ where I talk about the vote for women in numerous postings, in all of which I have rejected the idea of female suffrage on grounds explicitly stated. In particular my former posting Thoughts on Coverture, Suffrage, Chivalry, Patriarchy and the Natural Order https://whatswrongwithequalrights.wordpress.com/2014/05/10/thoughts-on-coverture-suffrage-chivalry-patriarchy-and-the-natural-order/ says it all the best. More than anything, it is my belief that the involvement of women in politics and women’s “advancement” is part of the problem of this country’s division. I also should note that Republican women are by far the most feminist in my opinion, only sparring with feminists on the other side of the political spectrum as regards abortion politics yet hardly anywhere else. Far from making things better for women, the only thing that I have yet to see is women engaging in war against other women while men simply become passive bystanders, emasculated with victim complexes and a fear, hatred and distrust of women in general. I propose that the relations between the sexes in the modern era are part of the problem as to why the rule of law is ultimately breaking down and why the checks and balances in the American system of government are something that society can no longer take for granted.

[ii] I’ve talked about Trump before and how I am not a fan, but I simply understand too much about the inner workings of the law and political system to bother to get into any kind of “hot debate” over the president- no matter who holds office. https://whatswrongwithequalrights.wordpress.com/2018/02/21/the-appearance-of-impropriety/

[iii] This issue is explored in depth more fully by two books by the former late Chief Justice of the United States Supreme Court William H. Rehnquist: See generally, William H. Rehnquist, All The Laws But One, Civil Liberties in Wartime (Vintage, 1998); William H. Rehnquist, The Supreme Court (Vintage, 2001).

[iv] Quoted from The Supreme Court, supra, p. 67.

[v] See Supreme Court case Youngstown Sheet & Tube Company v. Sawyer 343 U.S. 579 (1952). This case also demonstrates the remarkable way the rule of law still works when Truman complied with the mandates of the Supreme Court. This and other instances in United States history showcase the brilliance of the “checks and balances” built into the system of government and its remarkable ability to withstand the test of time. See also The President and the Snowflakes https://whatswrongwithequalrights.wordpress.com/2018/04/17/the-president-and-the-snowflakes/

[vi] There was rebellion and Congress used its remarkable powers to coerce the rebel states to fall in line with its mandates, from denying representation to the states who refused to comply, to using its Enforcement Powers https://www.heritage.org/constitution/#!/amendments/14/essays/175/enforcement-clause to enforce the Civil Rights Act of 1866 against the South. The fact that the Reconstruction Amendments were largely passed despite Southern resistance (and even resistance from president Andrew Johnson himself) also shows the inherent powers of the Legislative Branch of the Federal Government whenever it is determined and united on an issue. https://www.history.com/topics/black-history/black-codes ; https://www.loc.gov/rr/program/bib/ourdocs/14thamendment.html

[vii] See Preserving the Courts https://protectdemocracy.org/preserving-courts/ for discussion about current president Donald Trump and former presidents who have defied the Supreme Court on the preservation of an independent judiciary.

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