Against Tyranny, Is ‘The Rule of Law’ Enough?
Most conservatives profess to believe in “strict construction” when it comes to following the Constitution of the United States. This means that the Constitution should be construed according to its terms. Given their regard for this doctrine, its surprising how often they respond favorably to public officials who profess to be “strict constructionists,” but who then describe the discipline that governs their official conduct in terms that occur nowhere in the Constitution they are sworn to uphold.
I thought of this this the other day as I listened to Neil Gorsuch’s opening statement before the Senate Judiciary Committee’s hearing on his nomination to be a justice of the Supreme Court of the United States. As he approached the end of his remarks he said:
As a judge now for more than a decade, I have watched my colleagues spend long days worrying over cases. Sometimes the answers we reach aren’t ones we would personally prefer. Sometimes the answers follow us home and keep us up at night. But the answers we reach are always the ones we believe the law requires. For all its imperfections, the rule of law in this nation truly is a wonder – and it is no wonder that it is the envy of the world.
Judge Gorsuch’s reference to “the rule of law” doubtless resonates with many conservatives who consider themselves “strict constructionists.” The phrase appears consistent with the spirit of John Adams words, included in the constitution of the Commonwealth of Massachusetts in 1780, to thwart the emergence of tyrannical power:
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.
Whatever the appearance of consistency, however, its telling that the phrase “rule of law” is not to be found in the Constitution of the United States. It occurs nowhere in The Federalist Papers, the famous collection of essays written on behalf of its ratification by John Jay, James Madison and Alexander Hamilton. The view that the separation of powers is an essential bulwark against tyrannical abuses of power is repeatedly alluded to in the Federalist Papers, but in the U.S. Constitution it is nowhere stated explicitly, in any terms remotely resembling those found in the 1780 Massachusetts Constitution.
The notion of the “rule of law” abstracts from the hard fact that law does not exist, in fact, apart from concrete human activity. The same can be said for the separation of powers. In any given instance, law requires that human activity be governed by a rule. But when acted upon, the faculties of judgment and execution must be united, otherwise power would not be applied according to the rule. America’s founders were certainly familiar with this logic. They encountered it in Thomas Hobbes’s observation (Leviathan, Part I, Chapter XIII) that without force (i.e., the power of execution) “there is no law.” (This Hobbesian view is consistent with Thomas Aquinas’s understanding that, as such, a law must be the work of a competent authority, i.e., one capable of enforcing it. This executive prerequisite of law led John Locke to propound the “strange doctrine” that makes every individual an “executioner of the law of nature.”)
But if law only exists when there is a coincidence of judgment and execution, according to a rule, doesn’t this mean that every law is, in effect, an aspect of tyranny? If this coincidence of powers is necessary for any law to be effective, and if government consists in the rule of law, how can the separation of powers be essential? Indeed, it would seem that, unless the separation of powers is overcome, there is little prospect of sustaining government at all?
The notion that government is simply synonymous with the rule of law thus appears to conflict with maintaining the separation of powers. For the effective rule of law appears, in every case, to be a modified form of tyranny. Is there any way for government to avoid this appearance? If not, why do conservatives who are pleased by the prospect of the rule of law so adamantly oppose the idea of judicial tyranny? Surely, since judges are best positioned to understand the law, and the effective existence of any law requires the coincidence of rule, judgment and execution, isn’t trusting to the tyranny of those best positioned to know the law the only way to assure government according to law?
By itself, therefore, the concept of the rule of law poses a practical conundrum for people who join with America’s founders in maintaining the separation of powers as a bulwark of liberty. On the one hand, a strict regard for the separation of powers appears inconsistent with the effective rule of law. On the other, the effective implementation of the rule of law appears to require the tyrannical union of government’s powers, in every instance.
Obviously, it is absurd to suggest that the union of powers, according to law, constitutes tyranny. Yet conservatives who argue for the “rule of law” against “judicial tyranny” often talk as if it does. Judges are acting as tyrants because they “legislate from the bench”, usurping the legislative power. But Neil Gorsuch is correct to observe that the judges never do so without arguing that what they do is required by “the rule of law.” The argument is therefore not about the separation of powers. It’s about the substance of the law. But just as the law has no substance, in concrete terms, apart from the power that enforces it, so it has no substance, in terms of justice, apart from the standard of right in light of which its purpose or intention has also to be judged.
In this respect, the question of law has always to be supplemented by consideration of right, which is to say of justice, determined in light of a standard that distinguishes what is rightly done with power from what is wrongly imposed by it. In light of the actual foundations of the Constitutional government of the United States, this standard cannot be satisfied simply by referring to the strength or power of the people. For the people of the United States did not claim the authority to cast off the rule of the British King, simply based on their power to do so. In fact, they well knew that, in prospect, a strong case could be made to the contrary: That when they declared their Independence from Great Britain they had not the power to vindicate the claim. They acted, nonetheless, on the basis of a claim of right—which is to say, a requirement of justice that condemned the King’s abuses of his sovereign authority.
The preamble to the Constitution reflects both the requirement of effective law and what the people declare to be the first purposes of the government they ordain and establish for the United States. “We the people of the United States, in order to form a more perfect union, establish justice…etc.” Union, to assure the effectiveness of law; justice to assure it conformity to right. One question remains: Right according to what power?
The answer, which necessarily had to be given before the Constitution could exist, came in the words of the Declaration of Independence, wherein the representatives of the people appealed “to the Supreme Judge of the world for the rectitude [rightness, justice] of our intentions”; and declared their “firm reliance on the protection of divine Providence….” Without these things, “the rule of law” is just a mask for tyranny, justified by no standard but superior power, successfully imposed. In the last century, good Germans thought that was sufficient. Here and now, good Americans know better.
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