Skip to comments.All Three Branches of Government Are Acting Above the Law What do we do about it?
Posted on 07/20/2012 8:16:16 PM PDT by neverdem
The greatest distinguishing factor between countries in which there is some freedom and those where authoritarian governments manage personal behavior is the Rule of Law. The idea that the very laws that the government is charged with enforcing could restrain the government itself is uniquely Western and was accepted with near unanimity at the time of the creation of the American Republic. Without that concept underlying the exercise of governmental power, there is little hope for freedom.
The Rule of Law is a three-legged stool on which freedom sits. The first leg requires that all laws be enacted in advance of the behavior they seek to regulate and be crafted and promulgated in public by a legitimate authority. The goal of all laws must be the preservation of individual freedom. A law is not legitimate if it is written by an evil genius in secret or if it punishes behavior that was lawful when the behavior took place or if its goal is to solidify the strength of those in power. It also is not legitimate if it is written by the president instead of Congress.
The second leg is that no one is above the law and no one is beneath it. Thus, the law's restraints on force and fraud need to restrain everyone equally, and the law's protections against force and fraud must protect everyone equally. This leg removes from the discretion of those who enforce the law the ability to enforce it or to afford its protections selectively. This principle also requires that the law enforcers enforce the law against themselves. Of course, this was not always the case. In 1628, the British Parliament spent days debating the question "Is the king above the Rule of Law, or is the Rule of Law above the king?" Thankfully, the king lost -- but only by 10 votes out of several hundred cast.
The third leg of the Rule of Law requires that the structures that promulgate, enforce and interpret law be so fundamental -- Congress writes the laws, the president enforces the laws, the courts interpret the laws -- that they cannot be changed retroactively or overnight by the folks who administer them. Stated differently, this leg mandates that only a broad consensus can change the goals or values or structures used to implement the laws; they cannot be changed by atrophy or neglect or crisis.
The values in America are set forth in the Declaration of Independence, and the governmental structures in America are set forth in the Constitution. The former -- that our rights are inalienable and come from our Creator and not from the government -- is not merely a recitation of Thomas Jefferson's musings. The Declaration is the articulation of our values then and now, and it, too, is the law of the land.
The Constitution was written -- largely by James Madison -- to define and to limit the federal government, and it was quickly amended by adding the Bill of Rights so as to be sure that natural rights would be respected by the government. This tension between the power of the majority -- at the ballot box or in Congress -- and the rights of the minority -- whether a discrete class of persons or a minority of one -- is known as the Madisonian dilemma. Stated differently, the Constitution provides for protection against the tyranny of the majority.
In our system, the power to resolve the dilemma is reposed into the hands of the judiciary, and those who have that power are to resolve it without regard to popularity or politics. Their oath is to the Constitution. They have the final say on what the laws mean. If they follow the Rule of Law, they will invalidate that which the government has done and which is properly challenged before them and which is not authorized by the Constitution. Their very purpose is to be anti- democratic, lest the popular majority takes whatever lives, liberties or property it covets. In return for life tenure, we expect judicial modesty, and we demand constitutional fidelity -- not political compromise.
In our era, the violations of the Rule of Law have become most troublesome when the government breaks its own laws. Prosecute Roger Clemens for lying to Congress? What about all the lies Congress tells? Prosecute John Edwards for cheating? What about all the cheating in Congress when it enacts laws it hasn't read? Bring the troops home from the Middle East? What about all the innocents killed secretly by the president using CIA drones? Can't find a way to justify Obamacare under the Constitution? Why not call it what its proponents insisted it isn't -- a tax?
We live in perilous times. The president acts above the Rule of Law and fights his own wars. Congress acts below the Rule of Law by letting the president do whatever he can get away with. And this summer, the Supreme Court rewrote the Rule of Law.
What do we do about it?
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written six books on the U.S. Constitution. The most recent is "It Is Dangerous To Be Right When the Government Is Wrong: The Case for Personal Freedom."
There are at least 4 branches of gov’t, not 3.
Executive, Legislative, Judicial and Regulatory.
Talk, i.e., nothing.
The actions are what will be done to us. We will be enslaved and killed. Pretty obvious.
There is only one thing to do.
We know what that one thing is.
And we aren’t going to do it.
Knock some heads? Some harder than others?
Regarding that last:
He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.
All Three Branches of Government Are Acting Above the Law What do we do about it?
It’s either win it back at the voting booths , something the ‘TEA Party’ has been doing the last two cycles of major elections, or be prepared for civil insurrection down the road and more drones than ya can shake a stick at, the media will of course cover it with a liebral slant&spin in either case.. The entanglement of leftists thruout the branches and courts and the purposes originally intended for are vastly different from anything we have ever seen abused in such a way.. or have we?
There is nothing new under the sun, even Revolution.
No flame but you're not going to do that so why say it?
Great article - have you seen the other ones that precede this one?
The king George solution ought to be put on the table.
On the subject of addressing the problem a disarming of the Federal army seems an essentially task. I think we should support a massive cut down of the Federal army & airforce.
Starting with those officers who have showed themselves willing follow unlawful orders of Obama. We should hedge our bets by transferring as much of the assets as possible to the various State National guards. Thus both arming our States & preserving our defense.
I have been asking that very question since Obamacare was being discussed and illegally adopted as a phony bill. Right here on FR.
I asked questions as to who has standing to get an emergency hearing from the Supreme Court when the 'Rats locked the Republicans out of the discussion.
What good is asking the question four years too late?
Therein lies the answer.
No tyranny can long survive without an endless supply of unjust bureaucrats.
No group can be more effortlessly unjust than the ignorant.
What does that suggest?
The States were supposed to be the fourth branch of government. Then we look at a place like California and see its government acting in total regard of the law, insanely so.
“What do we do about it?”
Well, we could stop supporting it financially. The government would surrender pretty fast if faced with a tax revolt.
For sure voting isn’t working.
The States created the Federal Government and the States have the power to change it via a Constitutional Convention. This convention could create several new amendments that would severely limit the responsibilities and power of the Federal Government. I’d also like to see a new amendment which would allow the states to nullify any court action that is clearly contrary to the original meaning as written by the founders.
Well instead of inciting people to rebellion, why not urge them to learn the law? Seeing as you're a judge and all. But then again, blood is always easier when it's someone elses, eh Andrew?
For those of you whose blood "judge" Napolitano finds convenient, here's an alternative: knowledge for peaceful and lawful change.
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