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All Three Branches of Government Are Acting Above the Law What do we do about it?
Reason ^ | July 19, 2012 | Andrew Napolitano

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."


TOPICS: Constitution/Conservatism; Editorial; Foreign Affairs; Politics/Elections
KEYWORDS: branches; constitution; obama; obamacorruption; obamaoutofcontrol; usgovernment

1 posted on 07/20/2012 8:16:25 PM PDT by neverdem
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To: neverdem

There are at least 4 branches of gov’t, not 3.

Executive, Legislative, Judicial and Regulatory.


2 posted on 07/20/2012 8:25:38 PM PDT by umgud (No Rats, No Rino's)
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To: neverdem
"What do we do about it?"

Talk, i.e., nothing.

The actions are what will be done to us. We will be enslaved and killed. Pretty obvious.


3 posted on 07/20/2012 8:26:03 PM PDT by I see my hands (It's time to.. KICK OUT THE JAMS, MOTHER FREEPERS!)
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To: neverdem

There is only one thing to do.
We know what that one thing is.
And we aren’t going to do it.


4 posted on 07/20/2012 8:38:47 PM PDT by ClearCase_guy (Roger Taney? Not a bad Chief Justice. John Roberts? A really awful Chief Justice.)
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To: neverdem
All Three Branches of Government Are Acting Above the Law What do we do about it?

Knock some heads? Some harder than others?

5 posted on 07/20/2012 8:39:23 PM PDT by varon
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To: umgud

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.

Enough said.


6 posted on 07/20/2012 8:48:14 PM PDT by FreedomPoster (Islam delenda est)
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To: neverdem

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.

GiDDYUP!


7 posted on 07/20/2012 8:54:52 PM PDT by NormsRevenge (Semper Fi)
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To: varon
"Knock some heads"

No flame but you're not going to do that so why say it?


8 posted on 07/20/2012 8:55:14 PM PDT by I see my hands (It's time to.. KICK OUT THE JAMS, MOTHER FREEPERS!)
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To: neverdem

http://www.canadafreepress.com/index.php/article/48202


9 posted on 07/20/2012 9:00:41 PM PDT by biggredd1
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To: biggredd1

Great article - have you seen the other ones that precede this one?


10 posted on 07/20/2012 9:07:26 PM PDT by Sioux-san
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To: neverdem

The king George solution ought to be put on the table.


11 posted on 07/20/2012 9:16:53 PM PDT by Secret Agent Man (I can neither confirm or deny that; even if I could, I couldn't - it's classified.)
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To: NormsRevenge

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.


12 posted on 07/20/2012 9:19:19 PM PDT by Monorprise
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To: neverdem
I'd like to welcome the good judge to the party.
It's mind-boggling to realize what PC and misguided tolerance will do to a normal adult brain.

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.

Total silence.

What good is asking the question four years too late?

13 posted on 07/20/2012 9:20:15 PM PDT by publius911 (Formerly Publius 6961, formerly jennsdad)
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To: neverdem
"What do we do about it? "
I think there's some clues in the Declaration of Independence ...
14 posted on 07/20/2012 9:20:26 PM PDT by Tunehead54 (Nothing funny here ;-)
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To: umgud
There are at least 4 branches of gov’t, not 3.
Executive, Legislative, Judicial and Regulatory.

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?

15 posted on 07/20/2012 9:31:29 PM PDT by publius911 (Formerly Publius 6961, formerly jennsdad)
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To: neverdem
"...whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness."
16 posted on 07/20/2012 9:39:30 PM PDT by ImpBill ("America, where are you now?" - Little "r" republican!)
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To: umgud

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.


17 posted on 07/20/2012 9:42:21 PM PDT by RobbyS (Christus rex.)
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To: neverdem

“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.


18 posted on 07/20/2012 9:45:00 PM PDT by Lady Lucky (If you believe what you're saying, quit making taxable income.)
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To: RobbyS

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.


19 posted on 07/20/2012 9:54:01 PM PDT by Oklahoma
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To: neverdem
...this summer, the Supreme Court rewrote the Rule of Law. What do we do about it?

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.

How Chief Justice Roberts Saved America

20 posted on 07/20/2012 9:57:11 PM PDT by Talisker (One who commands, must obey.)
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To: neverdem

We have moved from the “Giant sucking sound” to the “Giant gang bang thump sound”. It is incredible how everyday pundits keep acting like the characters in the chainsaw massacre, not minding a bit about what is happening right before their eyes, as if nothing was happening or was about to happen. It’s like the girl who is ignoring she is being lured in the back alley.


21 posted on 07/20/2012 10:10:35 PM PDT by JudgemAll (Democrats Fed. job-security Whorocracy & hate:hypocrites must be gay like us or be tested/crucified)
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To: neverdem

Rule of Law-—was eloquently elaborated on by Cicero. The idea that there is a Higher Power—God—is the basis of Rule of Law—so no one is above the Law.

Higher Power was evoked by Martin Luther King, Jr. and at the Nuremberg Trials. What makes Laws “Just”—they HAVE to promote Virtue—as understood by the Nicomachean Ethics—later, in Western Civilization, by Judeo-Christian Ethics. Common Law was created by Christians and it became the basis of our jurisprudence—which eventually became the most perfect legal system in the history of mankind.

John Austin and his ideology ruined American Law. It is promoted in almost all law schools. It now has completely infiltrated our legal system so we get judges who rule by irrational urges—and feelings—and say there is a right to Sodomy-—a VICE!!!! This is absurd, because Higher Law is from God—not Satan. The idea that morality can be separated from law destroys justice and now permeates our legal system.

When Rule of Law is destroyed——by unjust laws—(Laws posited without regard to the Laws of Nature and Reason and Logic) —then tyranny will always result. Cicero witnessed it in Rome and wrote about the injustice which was destroying the civil society. He died for noting the truth.

We should eject all laws that were written after 1912 and return to the philosophy of our Founders and John Marshall and reject the Marxist/Austinian philosophy of the Postmodernists that destroy the meaning and intent of our Constitution. Socialism has to be eliminated. It is fascism and slavery.


22 posted on 07/20/2012 10:31:33 PM PDT by savagesusie (Right Reason According to Nature = Just Law)
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To: neverdem

Napolitano might be as close as we have to a modern day George Washington.


23 posted on 07/20/2012 10:41:23 PM PDT by The Duke
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To: Oklahoma

It may seem quixiotic to propose a constitutional convention, but in the ‘60s, an effort was made came close to obtaining the permission of two-thirds of the states to command the calling of such permission. I think it was the scotus decision forcing the states to base representation in its upper chambers on population. IAC, it CAN be done if the political will is there. My doubts arise from the complacency in in the reddest of states.


24 posted on 07/20/2012 10:43:19 PM PDT by RobbyS (Christus rex.)
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To: savagesusie

Liberals are blind to the fact that their success is builded on pre-liberal and even anti-liberal foundations. They think that “progression” entails the destruction of these foundations. The French Revolution showed what happens if one succeeds in doing this. Church, throne, nobility: the ancient provinces that were virtual countries in themselves, and in their place new foundations built on air, water, fire, but not on earth.


25 posted on 07/20/2012 10:51:44 PM PDT by RobbyS (Christus rex.)
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To: neverdem

Part of the problem is that even though conservatives are on the right side of every issue, most of the time we concede to liberals.

In retrospect, it really is quite shocking how much personal freedom we have abdicated to the bureaucracy.

The United States really isn’t a free country anymore, and even though some states are more free than others, the federal government still reigns supreme.

It always fascinates me that conservatives can go abroad and have the fortitude to fight Communists and terrorists, but don’t have that same courage and fortitude to fight the Commies and terrorists AKA liberals in own backyard.


26 posted on 07/20/2012 10:54:16 PM PDT by radpolis (Liberals: You will never find a more wretched hive of scum and villainy)
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To: The Duke

In any case, his thinking is antithetical to that of Obama, Pelosi, Reid and —sadly— John Roberts.


27 posted on 07/20/2012 10:54:16 PM PDT by RobbyS (Christus rex.)
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To: neverdem
Historically we have quite a few options.

The safest would be to start a new third party with truth as its foundation. No more lying to the people. Call it the Tea Party or Truth Party. Unfortunately, running anew political party would not fix the core corruption problem within the US government. And any new party might get corrupted itself while enduring the process.

The next option which I think is less safe then the prior option, would be an orderly secession. Not a historian on the topic, but the south had for all intents and purposes seceded from the north. It was only the attack on a left over still occupied Union fort that started the war. Although I could be wrong on that. At any rate, an orderly secession as the federal government collapses fiscally (ie - runaway monetary inflation) would be theoretically possible.

The next option of course involves more danger. That would be a civil war. Now Civil Wars themselves have been quite common over historic times. In fact, there is one occurring right now in Syria. And it happens to be against a state possessing WMD. Oddly enough the current US leadership supports the rebels in that civil war. This procedure however has always included lots of casualties for both rebels and state defenders. It is the last option that should be chosen - IMHO. Unless of course excitement and payback is what you want.

28 posted on 07/20/2012 10:59:14 PM PDT by justa-hairyape
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To: biggredd1; All

X2 Ya beat me.

And read this, too
The Communist by Paul Kengor


29 posted on 07/20/2012 11:02:56 PM PDT by KGeorge (Bring back the House Committee on Un-American Activities!)
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To: RobbyS
In any case, his thinking is antithetical to that of Obama, Pelosi, Reid and —sadly— John Roberts.

Agreed ... and he doesn't *think* like them, either! :)

30 posted on 07/20/2012 11:45:21 PM PDT by The Duke
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To: RobbyS

Well, yes, Liberals are quite blind. They are ideologues and devoid of reason.

But they did twist the word Liberal—to mean slavery to the State—like all good Marxists do—they destroy the language—change and twist words so they become devoid of meaning-—like homosexual “marriage”.

Liberals made the words “Patriarchy” and “Hierarchy” evil words, when those two systems of organization are responsible for greatness and power and excellence beyond belief. Such natural and efficient way to set up a civil society.

Marxism creates artificial constructs to organize society which needs totalitarian rule because it is not natural—goes against the nature of man—like their radical egalitarianism which states man is woman is dog is horse. There is no reason.

Political Correctness was established by Mao to control the ideas that the masses were permitted to have.

We need to regain freedom and learn about the true greatness of Western Civ and the goodness of hierarchy and order and nobility and Virtue. The genius of Western Civilization and Christianity was to learn from the past......Liberals/Marxists destroy the past—all knowledge of the greatness. Marxist erase history from the schools, so they can create their ignorant drones who have never heard of Adam Smith and Plato, so believe their lies.


31 posted on 07/21/2012 1:58:18 AM PDT by savagesusie (Right Reason According to Nature = Just Law)
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To: neverdem
Time for some tar and feathers!


32 posted on 07/21/2012 1:59:33 AM PDT by Emperor Palpatine (Tosca, mi fai dimenticare Iddio!!!!!)
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To: Oklahoma

It is a compund government created through a compound process. The state legislatures did not create the federal government. There were special constitutional conventions with representative chosen by the people of each state for that task. That is so that the people would remain the prime authority for the delegation of power. They removed a portion of the power they had delegated to the sovereign states under the Confederation and revested that power with the new federal government.


33 posted on 07/21/2012 3:28:22 AM PDT by marsh2
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To: neverdem

Charge them with treason.


34 posted on 07/21/2012 4:06:25 AM PDT by freekitty (Give me back my conservative vote; then find me a real conservative to vote for)
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To: neverdem

Our ancestors would have started shooting by now.


35 posted on 07/21/2012 6:26:53 AM PDT by Kevmo ( FRINAGOPWIASS: Free Republic Is Not A GOP Website. It's A Socon Site.)
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To: neverdem
All Three Branches of Government Are Acting Above the Law What do we do about it?

As the old DI used to command,"With ball ammunition, lock and load".

36 posted on 07/21/2012 10:20:21 AM PDT by Don Corleone ("Oil the gun..eat the cannoli. Take it to the Mattress.")
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To: I see my hands
Please note, my remark was a question, not a statement.

As to what I will or will not do is known only by me. I do know from life's experiences that sitting in the stands never won a game.

I can not fault your conclusion because it is an accurate observation of the super majority of today's Americans.

37 posted on 07/21/2012 12:58:52 PM PDT by varon
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To: neverdem

I suggest Andrew start by going over and beating some sense into his evil sister.


38 posted on 07/21/2012 2:08:31 PM PDT by AZLiberty (No tag today.)
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