The bantering back and forth between talking heads, politicians, pundits, academic “experts” about The Rule of Law makes one wonder, ”What is the Truth about The Rule of Law?” What exactly is the definition of the Rule Of Law and who decides what the rule of law is in any given dispute?
The uscourts.gov/educational-resources, defines it as:
“More than 200 years ago, Alexander Hamilton, James Madison, and John Jay published a series of essays promoting the ratification of the United States Constitution now known as Federalist Papers. In explaining the need for an independent judiciary, Alexander Hamilton noted in The Federalist # 78 that the federal courts "were designed to be an intermediate body between the people and their legislature" in order to ensure that the people's representatives acted only within the authority given to Congress under the Constitution.
The U.S. Constitution is the nation's fundamental law. It codifies the core values of the people.
Courts have the responsibility to interpret the Constitution's meaning, as well as the meaning of any laws passed by Congress. The Federalist # 78 states further that, if any law passed by Congress conflicts with the Constitution, "the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."
"Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power.
It only supposed that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."
The American democratic system is not always based upon simple majority rule. There are certain principles that are so important to the nation that the majority has agreed not to interfere in these areas. For instance, the Bill of Rights was passed because concepts such as freedom of religion, speech, equal treatment, and due process of law were deemed so important that, barring a Constitutional Amendment, not even a majority should be allowed to change them.
Rule of law is a principle under which all persons, institutions, and entities are accountable to laws that are:
The American Bar Association defines the Rule of Law as a set of principles, or ideals, for ensuring an orderly and just society.
Inasmuch as there does not seem to be a clear cut definition of the Rule of Law, it does appear there is a consensus it finds itself in the parameters of principles and ideals. Principles, per the Cambridge Dictionary, are basic ideas or rules that explain or control how something happens or works. It goes on to define ideals as meaning:
1. (adj) Perfect, or the best possible:
2. (noun) a principle or way of behaving that is of a very high standard.
The challenge is, from whose perspective do we decide what is perfect, best possible or very high standard – objectively or subjectively, individually or by majority?
So how do we find the Truth of The Rule of Law in America? Well, we start at the beginning.
The United States of America is a Constitutional Republic, a representative form of government elected by the people, for the people and of the people. (See creation of the Branches of Government in (Legislative) Article I, sections 1 through 10,: (Executive) Article II, sections 1 through 4; (Judicial) Article III sections 1 through 3; Article IV, section 4, which guarantees every State a Republican Form of Government; Article V, process for Amendments to the Constitution).
The second place we look to find answers to the Rule of Law then becomes the Amendments to the Constitution, specifically the first 10 Amendments, which spell out the rights and protections of the people against the Federal government, and later applied to the States via the 14th Amendment.
It is within this framework we can identify the principles and ideals of the Founders and subsequent elected representatives of the people in both Houses and the Executive Branch. Also, the Federalist Papers shine some light on the thoughts and processes of the framers and ultimately the signers of the Constitution. (Note: only 12 states sent delegates to the Constitutional Convention in 1787 – Rhode Island did not participate, but eventually ratified the Constitution in 1790.)
Of note in the Federalist Papers #78, as noted above, is this very important insight:
“ The Federalist # 78 states further that, if any law passed by Congress conflicts with the Constitution, "the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
“Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposed that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.” (emphasis added)
Some insights/commentary are next in order.
A plain reading of the Constitution and Federalist #78 would lead one to believe the Founders realized two things: first, the elected branches of government were subservient to the will of the people, not the people subservient to those they elected. 2. The elected official were not infallible in the statutes and laws they promulgated – thus the independent branch of the judiciary and the standard by which that branch should evaluate said legislation, and the principle that the power of the people is superior to both branches of government.
A simple example of the fallibility of the Legislative and Judicial Branches can be found in the arena of slavery. Until the passage of the 13th Amendment slavery was both legal and forcefully protected. The will of the people, with the support of the Constitution and the ability of the people to Amend it, declared slavery was morally and legally wrong. President Lincoln and the Congress followed the will of the people. And that same will has been supported in the centuries since the Civil War by all three branches of government, as evidenced by multiple civil rights acts passed by Congress, signed by Presidents and upheld by the SCOTUS.
Put simply, the Rule of Law is not just what Congress or a Federal Judge(s) says it is. The Rule of Law is a compilation of a number principle and ideals of the people. It is not a majority rules form of government that we operate under. It is a representative form of government and the people have the will power and avenues to ensure the government is a servant of the people’s will.
Obviously the greatest and consistent avenue is through the ballot box. Which in itself is a major source of divisiveness in the US, as it relates to proof of citizenship, registered voter ID requirements and the Rule of Law as to each issue. Notwithstanding the unsettled issues of who can or cannot vote, the ballot box is the first line of expressing and enforcing the will of the people in their representation at local, state and federal levels.
The people can also petition, formally or through mass voices, their Congressional elected officials to collectively work with both Houses of Congress and under Article V of the US Constitution propose Amendments to the Constitution, or, through the required number of state Legislatures, submit an Application calling for a Constitutional Convention proposing Amendment(s) on various issues where the people believe one or more branches of government are acting contrary to their intentions, declared in the Constitution.
Such Amendments could certainly be in the arenas of voter registration and identification; the ability for state voters to recall their Congressman/woman or Senator before their term of office is completed and send a replacement; or a host of other matters.
You may think this can’t be done. Well it already has happened –over 11,000 Amendments have been proposed, and 27 have been ratified since 1791, the last being May 7, 1992.
The first 10 Amendments, known as the Bill of Rights and 17 more, some that covered voting rights, taxation, congressional pay. In fact the 18th Amendment (Prohibition, 1919) passed and then was repealed by the 21st Amendment in 1933. Each Amendment solidified the intentions of the people and were ratified by the Legislatures of three fourths of the states, or by Conventions in three fourths thereof.
So, the Truth of the Rule of Law is: it is the United States Constitution and it’s duly ratified Amendments, that express the intentions and will of the people, when done at the right time, the right way and for the right reasons. Congress, nor the Executive Branch, cannot unilaterally change the Rule of Law. And if they do, the Judicial Branch is the proper avenue to protect the people from any abuse of power by the other two Branches. Even the Judiciary cannot change the Rule of Law, only judge actions of the government under it.
About the Author:
From being left in orphanage in Dublin, Ireland at 3 days old, to being adopted to the USA 16 months later, Pat Welsh has been on a life long journey to become a Warrior, Servant, Leader.
His journey has led him to a 40+ year professional career as a lawyer, police executive, and nationally recognized speaker/trainer in the criminal justice arena. Personally, his journey includes being married to his soul mate for over 44 years, helping raise 5 kids and being blessed with two granddaughters. Pat credits his faith for getting through tough challenges, professionally and personally – including the loss of their youngest son while serving overseas with the USAF.
In the Warrior Servant Leader Podcast, Pat shares the inspiring stories and lessons learned, personally and professionally, as he features TACO TUESDAYS - Take Action Crush Obstacles. Buckle up, he doesn’t hold back.
Contact Pat: pjwelshllc@gmail.com or at https://www.thewarriorservantleaderpodcast.com
The uscourts.gov/educational-resources, defines it as:
“More than 200 years ago, Alexander Hamilton, James Madison, and John Jay published a series of essays promoting the ratification of the United States Constitution now known as Federalist Papers. In explaining the need for an independent judiciary, Alexander Hamilton noted in The Federalist # 78 that the federal courts "were designed to be an intermediate body between the people and their legislature" in order to ensure that the people's representatives acted only within the authority given to Congress under the Constitution.
The U.S. Constitution is the nation's fundamental law. It codifies the core values of the people.
Courts have the responsibility to interpret the Constitution's meaning, as well as the meaning of any laws passed by Congress. The Federalist # 78 states further that, if any law passed by Congress conflicts with the Constitution, "the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."
"Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power.
It only supposed that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."
The American democratic system is not always based upon simple majority rule. There are certain principles that are so important to the nation that the majority has agreed not to interfere in these areas. For instance, the Bill of Rights was passed because concepts such as freedom of religion, speech, equal treatment, and due process of law were deemed so important that, barring a Constitutional Amendment, not even a majority should be allowed to change them.
Rule of law is a principle under which all persons, institutions, and entities are accountable to laws that are:
- Publicly promulgated
- Equally enforced
- Independently adjudicated
- And consistent with international human rights principles.
The American Bar Association defines the Rule of Law as a set of principles, or ideals, for ensuring an orderly and just society.
Inasmuch as there does not seem to be a clear cut definition of the Rule of Law, it does appear there is a consensus it finds itself in the parameters of principles and ideals. Principles, per the Cambridge Dictionary, are basic ideas or rules that explain or control how something happens or works. It goes on to define ideals as meaning:
1. (adj) Perfect, or the best possible:
2. (noun) a principle or way of behaving that is of a very high standard.
The challenge is, from whose perspective do we decide what is perfect, best possible or very high standard – objectively or subjectively, individually or by majority?
So how do we find the Truth of The Rule of Law in America? Well, we start at the beginning.
The United States of America is a Constitutional Republic, a representative form of government elected by the people, for the people and of the people. (See creation of the Branches of Government in (Legislative) Article I, sections 1 through 10,: (Executive) Article II, sections 1 through 4; (Judicial) Article III sections 1 through 3; Article IV, section 4, which guarantees every State a Republican Form of Government; Article V, process for Amendments to the Constitution).
The second place we look to find answers to the Rule of Law then becomes the Amendments to the Constitution, specifically the first 10 Amendments, which spell out the rights and protections of the people against the Federal government, and later applied to the States via the 14th Amendment.
It is within this framework we can identify the principles and ideals of the Founders and subsequent elected representatives of the people in both Houses and the Executive Branch. Also, the Federalist Papers shine some light on the thoughts and processes of the framers and ultimately the signers of the Constitution. (Note: only 12 states sent delegates to the Constitutional Convention in 1787 – Rhode Island did not participate, but eventually ratified the Constitution in 1790.)
Of note in the Federalist Papers #78, as noted above, is this very important insight:
“ The Federalist # 78 states further that, if any law passed by Congress conflicts with the Constitution, "the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
“Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposed that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.” (emphasis added)
Some insights/commentary are next in order.
A plain reading of the Constitution and Federalist #78 would lead one to believe the Founders realized two things: first, the elected branches of government were subservient to the will of the people, not the people subservient to those they elected. 2. The elected official were not infallible in the statutes and laws they promulgated – thus the independent branch of the judiciary and the standard by which that branch should evaluate said legislation, and the principle that the power of the people is superior to both branches of government.
A simple example of the fallibility of the Legislative and Judicial Branches can be found in the arena of slavery. Until the passage of the 13th Amendment slavery was both legal and forcefully protected. The will of the people, with the support of the Constitution and the ability of the people to Amend it, declared slavery was morally and legally wrong. President Lincoln and the Congress followed the will of the people. And that same will has been supported in the centuries since the Civil War by all three branches of government, as evidenced by multiple civil rights acts passed by Congress, signed by Presidents and upheld by the SCOTUS.
Put simply, the Rule of Law is not just what Congress or a Federal Judge(s) says it is. The Rule of Law is a compilation of a number principle and ideals of the people. It is not a majority rules form of government that we operate under. It is a representative form of government and the people have the will power and avenues to ensure the government is a servant of the people’s will.
Obviously the greatest and consistent avenue is through the ballot box. Which in itself is a major source of divisiveness in the US, as it relates to proof of citizenship, registered voter ID requirements and the Rule of Law as to each issue. Notwithstanding the unsettled issues of who can or cannot vote, the ballot box is the first line of expressing and enforcing the will of the people in their representation at local, state and federal levels.
The people can also petition, formally or through mass voices, their Congressional elected officials to collectively work with both Houses of Congress and under Article V of the US Constitution propose Amendments to the Constitution, or, through the required number of state Legislatures, submit an Application calling for a Constitutional Convention proposing Amendment(s) on various issues where the people believe one or more branches of government are acting contrary to their intentions, declared in the Constitution.
Such Amendments could certainly be in the arenas of voter registration and identification; the ability for state voters to recall their Congressman/woman or Senator before their term of office is completed and send a replacement; or a host of other matters.
You may think this can’t be done. Well it already has happened –over 11,000 Amendments have been proposed, and 27 have been ratified since 1791, the last being May 7, 1992.
The first 10 Amendments, known as the Bill of Rights and 17 more, some that covered voting rights, taxation, congressional pay. In fact the 18th Amendment (Prohibition, 1919) passed and then was repealed by the 21st Amendment in 1933. Each Amendment solidified the intentions of the people and were ratified by the Legislatures of three fourths of the states, or by Conventions in three fourths thereof.
So, the Truth of the Rule of Law is: it is the United States Constitution and it’s duly ratified Amendments, that express the intentions and will of the people, when done at the right time, the right way and for the right reasons. Congress, nor the Executive Branch, cannot unilaterally change the Rule of Law. And if they do, the Judicial Branch is the proper avenue to protect the people from any abuse of power by the other two Branches. Even the Judiciary cannot change the Rule of Law, only judge actions of the government under it.
About the Author:
From being left in orphanage in Dublin, Ireland at 3 days old, to being adopted to the USA 16 months later, Pat Welsh has been on a life long journey to become a Warrior, Servant, Leader.
His journey has led him to a 40+ year professional career as a lawyer, police executive, and nationally recognized speaker/trainer in the criminal justice arena. Personally, his journey includes being married to his soul mate for over 44 years, helping raise 5 kids and being blessed with two granddaughters. Pat credits his faith for getting through tough challenges, professionally and personally – including the loss of their youngest son while serving overseas with the USAF.
In the Warrior Servant Leader Podcast, Pat shares the inspiring stories and lessons learned, personally and professionally, as he features TACO TUESDAYS - Take Action Crush Obstacles. Buckle up, he doesn’t hold back.
Contact Pat: pjwelshllc@gmail.com or at https://www.thewarriorservantleaderpodcast.com
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