July 19, 2012
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?
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