Tim Dunkin
Principles of constitutionalism: the rule of law versus the rule of rules
By Tim Dunkin
As is most likely apparent to most readers of this series of articles, "constitutionalism" is a fundamental bulwark of the liberties of both commonwealths and the individual citizens who make up those bodies. Perhaps the most succinct definition of this term that I have seen in recently years was given by the political scientist Donald Fehrenbacher, who described "constitutionalism as "...a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law." In this statement, he has nicely summarized one of the most fundamental principles of any genuinely constitutional system, whether governed by the American Constitution, or any other. This principle was further elaborated by David Fellman,
"Constitutionalism is descriptive of a complicated concept, deeply imbedded in historical experience, which subjects the officials who exercise governmental powers to the limitations of a higher law. Constitutionalism proclaims the desirability of the rule of law as opposed to rule by the arbitrary judgment or mere fiat of public officials.... Throughout the literature dealing with modern public law and the foundations of statecraft the central element of the concept of constitutionalism is that in political society government officials are not free to do anything they please in any manner they choose; they are bound to observe both the limitations on power and the procedures which are set out in the supreme, constitutional law of the community. It may therefore be said that the touchstone of constitutionalism is the concept of limited government under a higher law." [emphasis mine]
In short, constitutionalism requires that governmental authority be constrained – not arbitrarily, or according to the ever-changing whims of democratic masses – but according to law which is more fundamental than any statute passed by any legislature or administrative body within a political system. Even more deeply, it sits, so to speak, upon the twin pillars of freedom from arbitrary decision-making and reverence for unchanging, underlying principles of law, what we often call "natural law." To reject either or both of these principles is to utterly destroy a constitutional system and convert it into a tyrannical one.
The rule of law is a much-maligned concept in this day and age, and since the rise of the social Left in the early part of the last century, its authority has been greatly undermined. Even today, many self-professed "conservatives" essentially reject the concepts of "natural law" and "the rule of law," and operate under the tenets of legal positivism, which posits that the authority and extent of government cannot rationally be limited in any way when "need" suggests its expansion, and certainly not by appeal to theoretical concepts such as natural law or to any undergirding constitution which defines a system's existence. In essence, legal positivism provides for a "rule of rules" type of system in which the needs of the state outweigh the liberties of the people, since those liberties are not thought to rest on any firm or rational foundation anywise. Because of that, those liberties only deserve to exist for as long as the government doesn't need to overrule them.
The "rule of rules" has had a rather inglorious history over the last century or so of its modern existence. As the reader may well imagine, a "rule of rules" system based upon the principle of legal positivism is a perfect vehicle for the establishment of tyranny. This we have seen. Concomitant with the rejection of the rule of law and natural law/liberties, we saw the rise of arbitrary government not based on transcendent limiting principles, staffed by unelected administrators, bureaucrats, and judges, acting on plenipotentiary authority instead of legislatively-delineated areas of sanction, unhindered by any concern about violating natural liberties.
The examples are endless, but are best exemplified by the two worse regimes of the 20th century. Germany, once a promising home of the Rechsstaat (rule of law state), saw the rise of fascism. Germany and the Soviet Union were both thoroughly legally positivist, from top to bottom. In both states administrative courts, granted wide discretionary powers both to rule and to punish and controlled by their respective Party apparatuses, rode roughshod over the citizenry. In neither state was there any thought of subservience to fundamental principles that would limit or restrain these governments from doing whatever they chose.
Unfortunately, as America has increasingly rejected our sense of natural law and the rule of law, our government has taken on many of the same characteristics. When you see the EPA or the IRS or some other executive agency act in a completely arbitrary way – and they can do so because of broad enforcement license granted by an increasingly disconnected and uninvolved federal legislature – you are seeing legal positivism and its destruction of liberty in action. When you see judges overturn democratically-made laws and referenda at the behest of a small minority of citizens in an arbitrary fashion, you are seeing the prototype of fascism taking place. When the government feels free to overturn and remake the Constitution via executive fiat or administrative fickle, you do not have a rule of law system anymore.
So in very many senses, our government can accurately be described as "fascist," and it is because of the rejection of natural law and the rule of law, and the replacement of these principles with the legal positivism of the social Left. Whether or not you're "religious," you'd better understand that if we don't base our fundamental governing principles on something that transcends that same government, we will end up with a totalitarian state, even if it takes a little longer to be established than it was in Hitlerian Germany or Marxist Russia. Madison recognized this principle when he wrote,
"The important distinction so well understood in America between a Constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government, seems to have been little understood and less observed in any other country. Wherever the supreme power of legislation has resided, has been supposed to reside also a full power to change the form of the government. Even in Great Britain, where the principles of political and civil liberty have been most discussed, and where we hear most of the rights of the Constitution, it is maintained that the authority of the Parliament is transcendent and uncontrollable as well with regard to the Constitution as the ordinary objects of legislative provision." (Madison, Federalist # 53)
One of the very things from which Americans revolted was the idea that powers subsidiary to the people and their natural rights – in the case of Great Britain, it was Parliament – were themselves transcendent and uncontrollable. This was a prototype of the legal positivism that was to make the 20th century such a terrible epoch in human history.
That a government could not be said to be a "republic" (a res publica, a "thing of the people") was understood by ancient political theorists such as Cicero,
"Therefore, who would call that 'a thing of a people' (that is, a republic) at the moment when all together were oppressed by the cruelty of one man, and there was neither the single bond of right nor the agreement and fellowship of an assemblage, which is a people? And the same for Syracuse: that splendid city, which Timaeus states is the greatest of all the Greeks' cities and the most beautiful of all − its citadel that is worth visiting, its harbors flowing all the way to the interior of the town and to the foundations of the city, its wide streets, porticoes, temples, walls − these things made it no more of a republic when Dionysius controlled it. Nothing belonged to the people, and the people itself belonged to one man. Therefore, where there is a tyrant, there is not a defective republic (as I said yesterday); but, as reason now compels, it must be said that there is no republic at all."
"You see, therefore, that even what is entirely in the power of a faction cannot truly be said to be a republic?"
"What was 'the thing of the Athenians' when the thirty men ruled most unjustly over that city after the great Peloponnesian War? Did the old glory of the city, or the splendid appearance of the town, or the theater, gymnasia, porticoes, or the noble gateways, or the citadel, or the marvelous works of Phidias, or the magnificent Piraeus bring about a republic?...
"Not at all, since there was indeed no 'thing of the people...'" (Cicero, On the Republic, Bk. 3, ppg. 35)
A government in the arbitrary power of one man, or of a faction of men (such as the ruling "elite" in Washington today, who for the most part act in concord, regardless of party affiliation), cannot be said to be a free society, and this is because, ultimately, it does not rest on the rule of law. It does not rest on restraining transcendent principles that keep the government within its proper place. To the legal positivist anything, ultimately, is the "proper place" of government. While there are even a number of "conservatives" who hold to legal positivism, their position is contradictory – they cannot truly support the liberties of the individual while denying the rational nature of natural law and fundamental rights of man. Even an Objectivist like Harry Binswanger tacitly admits this,
"By its monopoly on the use of physical force, a government is potentially the greatest rights-violator in a society. The threat to rights posed by private criminals is small compared to the threat posed by governments, as the mass slaughters perpetrated by statist governments throughout history testify. It is essential, therefore, that the government's use of physical force be 'rigidly defined, delimited and circumscribed; no touch of whim or caprice should be permitted in its performance; it should be an impersonal robot, with the laws as its only motive power.'
"This is the basis of the need for objective law. Laws must be objective in both derivation and form. And in both respects, "objective" refers to that which is based on a rational consideration of the relevant facts – as opposed to the subjective, the arbitrary, the whim-based.
"An objectively derived law is one stemming not from the whim of legislators or bureaucrats but from a rational application of the principle of individual rights. Rights tie law to reality, because they are a recognition of a basic, unalterable fact, i.e., of 'the conditions required by man's nature for his proper survival.'" (Harry Binswanger, "What Is Objective Law?")
Any system of government that does NOT recognize the inhering, inalienable rights of its citizens is one which is built upon unreality.
So what should we do if we want to see genuine constitutional government restored? Well, it begins with reacquainting ourselves with the practical applications of rule of law doctrine. As we saw from Fehrenbacher's description of constitutionalism given above, it doesn't just involve "ideas" but also "attitudes" and "patterns of behavior." If you want constitutional government, then you have to internalize constitutional principles within the people and apply them holistically, instead of trying to impose them from above. Liberty cannot be enforced by the power of government, but must grow from within the people as they understand its bases and seek to restore them. Upon what is the principle of the rule of law founded? I would give several principles that should apply to any republican system that will rest on the rule of law rather than the rule of rules.
1) Any laws that are made are crafted properly, both with respect to the process outlined in their founding document or established constitutional system, and with respect to protections afforded within it. In other words, in our system laws must be made by Congress and signed by the President before they have the force of law. While the principle of executive prerogative may have a place within republican commonwealthianism, we cannot tolerate the extensive abuses of presidential executive orders anymore. Nor should we tolerate lawmaking which hands extensive, often unconstitutional, latitude to executive regulatory agencies. Executive agencies should be bound by strict limits on their powers and narrowly circumscribed fields for their activities.
2) Such laws as are crafted must also apply to all citizens equally, even if not every citizen is necessarily and intimately affected by any particular law. We should not allow "special legislation" that benefits a few individuals or corporate entities. Neither should we tolerate unconstitutional judicial decisions which are made at the special behest of a few citizens or groups of citizens. Laws should apply equally to all.
3) The laws of the law should be openly available to the citizenry, both in the sense that they are promulgated to the public, and in the sense that they are few in number and easy to understand. A single law, when printed, should not fill a filing cabinet with dense legalese. Neither should there be thousands upon thousands of legal "landmines" in the federal code that have been slipped in as amendments, unknown to the vast majority of the citizenry who may fall afoul of them and suffer punishment without ever knowing they have done anything illegal. While I sympathize with the principle of "ignorance of the law is no excuse," it would seem to me that this can only apply when a nation's legal code does not fill an entire warehouse.
4) The laws, even if they do not violate a technical point of the Constitution, should be further restrained by our sense of natural law and right to stay within the boundaries of the proper roles of a genuinely federal and republican government. Such laws will be primarily arbitrative, federative, and legislative in form, while eschewing such redistributionist and regulatory forms as would infringe upon the natural rights of the citizenry.
For as long as a majority of Americans continue to prefer partial laws made to specially benefit certain factions of people, we will not really see a renewal of liberty in constitutionalism. As long as Americans continue to abide unconstitutional overreaches, administrative bullying, and obscurantist legislation confined to a small elite class of lawyers and judges, we will not have liberty. Commitment to these principles must be rekindled within the hearts and minds of the American people.
© Tim Dunkin
As is most likely apparent to most readers of this series of articles, "constitutionalism" is a fundamental bulwark of the liberties of both commonwealths and the individual citizens who make up those bodies. Perhaps the most succinct definition of this term that I have seen in recently years was given by the political scientist Donald Fehrenbacher, who described "constitutionalism as "...a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law." In this statement, he has nicely summarized one of the most fundamental principles of any genuinely constitutional system, whether governed by the American Constitution, or any other. This principle was further elaborated by David Fellman,
"Constitutionalism is descriptive of a complicated concept, deeply imbedded in historical experience, which subjects the officials who exercise governmental powers to the limitations of a higher law. Constitutionalism proclaims the desirability of the rule of law as opposed to rule by the arbitrary judgment or mere fiat of public officials.... Throughout the literature dealing with modern public law and the foundations of statecraft the central element of the concept of constitutionalism is that in political society government officials are not free to do anything they please in any manner they choose; they are bound to observe both the limitations on power and the procedures which are set out in the supreme, constitutional law of the community. It may therefore be said that the touchstone of constitutionalism is the concept of limited government under a higher law." [emphasis mine]
In short, constitutionalism requires that governmental authority be constrained – not arbitrarily, or according to the ever-changing whims of democratic masses – but according to law which is more fundamental than any statute passed by any legislature or administrative body within a political system. Even more deeply, it sits, so to speak, upon the twin pillars of freedom from arbitrary decision-making and reverence for unchanging, underlying principles of law, what we often call "natural law." To reject either or both of these principles is to utterly destroy a constitutional system and convert it into a tyrannical one.
The rule of law is a much-maligned concept in this day and age, and since the rise of the social Left in the early part of the last century, its authority has been greatly undermined. Even today, many self-professed "conservatives" essentially reject the concepts of "natural law" and "the rule of law," and operate under the tenets of legal positivism, which posits that the authority and extent of government cannot rationally be limited in any way when "need" suggests its expansion, and certainly not by appeal to theoretical concepts such as natural law or to any undergirding constitution which defines a system's existence. In essence, legal positivism provides for a "rule of rules" type of system in which the needs of the state outweigh the liberties of the people, since those liberties are not thought to rest on any firm or rational foundation anywise. Because of that, those liberties only deserve to exist for as long as the government doesn't need to overrule them.
The "rule of rules" has had a rather inglorious history over the last century or so of its modern existence. As the reader may well imagine, a "rule of rules" system based upon the principle of legal positivism is a perfect vehicle for the establishment of tyranny. This we have seen. Concomitant with the rejection of the rule of law and natural law/liberties, we saw the rise of arbitrary government not based on transcendent limiting principles, staffed by unelected administrators, bureaucrats, and judges, acting on plenipotentiary authority instead of legislatively-delineated areas of sanction, unhindered by any concern about violating natural liberties.
The examples are endless, but are best exemplified by the two worse regimes of the 20th century. Germany, once a promising home of the Rechsstaat (rule of law state), saw the rise of fascism. Germany and the Soviet Union were both thoroughly legally positivist, from top to bottom. In both states administrative courts, granted wide discretionary powers both to rule and to punish and controlled by their respective Party apparatuses, rode roughshod over the citizenry. In neither state was there any thought of subservience to fundamental principles that would limit or restrain these governments from doing whatever they chose.
Unfortunately, as America has increasingly rejected our sense of natural law and the rule of law, our government has taken on many of the same characteristics. When you see the EPA or the IRS or some other executive agency act in a completely arbitrary way – and they can do so because of broad enforcement license granted by an increasingly disconnected and uninvolved federal legislature – you are seeing legal positivism and its destruction of liberty in action. When you see judges overturn democratically-made laws and referenda at the behest of a small minority of citizens in an arbitrary fashion, you are seeing the prototype of fascism taking place. When the government feels free to overturn and remake the Constitution via executive fiat or administrative fickle, you do not have a rule of law system anymore.
So in very many senses, our government can accurately be described as "fascist," and it is because of the rejection of natural law and the rule of law, and the replacement of these principles with the legal positivism of the social Left. Whether or not you're "religious," you'd better understand that if we don't base our fundamental governing principles on something that transcends that same government, we will end up with a totalitarian state, even if it takes a little longer to be established than it was in Hitlerian Germany or Marxist Russia. Madison recognized this principle when he wrote,
"The important distinction so well understood in America between a Constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government, seems to have been little understood and less observed in any other country. Wherever the supreme power of legislation has resided, has been supposed to reside also a full power to change the form of the government. Even in Great Britain, where the principles of political and civil liberty have been most discussed, and where we hear most of the rights of the Constitution, it is maintained that the authority of the Parliament is transcendent and uncontrollable as well with regard to the Constitution as the ordinary objects of legislative provision." (Madison, Federalist # 53)
One of the very things from which Americans revolted was the idea that powers subsidiary to the people and their natural rights – in the case of Great Britain, it was Parliament – were themselves transcendent and uncontrollable. This was a prototype of the legal positivism that was to make the 20th century such a terrible epoch in human history.
That a government could not be said to be a "republic" (a res publica, a "thing of the people") was understood by ancient political theorists such as Cicero,
"Therefore, who would call that 'a thing of a people' (that is, a republic) at the moment when all together were oppressed by the cruelty of one man, and there was neither the single bond of right nor the agreement and fellowship of an assemblage, which is a people? And the same for Syracuse: that splendid city, which Timaeus states is the greatest of all the Greeks' cities and the most beautiful of all − its citadel that is worth visiting, its harbors flowing all the way to the interior of the town and to the foundations of the city, its wide streets, porticoes, temples, walls − these things made it no more of a republic when Dionysius controlled it. Nothing belonged to the people, and the people itself belonged to one man. Therefore, where there is a tyrant, there is not a defective republic (as I said yesterday); but, as reason now compels, it must be said that there is no republic at all."
"You see, therefore, that even what is entirely in the power of a faction cannot truly be said to be a republic?"
"What was 'the thing of the Athenians' when the thirty men ruled most unjustly over that city after the great Peloponnesian War? Did the old glory of the city, or the splendid appearance of the town, or the theater, gymnasia, porticoes, or the noble gateways, or the citadel, or the marvelous works of Phidias, or the magnificent Piraeus bring about a republic?...
"Not at all, since there was indeed no 'thing of the people...'" (Cicero, On the Republic, Bk. 3, ppg. 35)
A government in the arbitrary power of one man, or of a faction of men (such as the ruling "elite" in Washington today, who for the most part act in concord, regardless of party affiliation), cannot be said to be a free society, and this is because, ultimately, it does not rest on the rule of law. It does not rest on restraining transcendent principles that keep the government within its proper place. To the legal positivist anything, ultimately, is the "proper place" of government. While there are even a number of "conservatives" who hold to legal positivism, their position is contradictory – they cannot truly support the liberties of the individual while denying the rational nature of natural law and fundamental rights of man. Even an Objectivist like Harry Binswanger tacitly admits this,
"By its monopoly on the use of physical force, a government is potentially the greatest rights-violator in a society. The threat to rights posed by private criminals is small compared to the threat posed by governments, as the mass slaughters perpetrated by statist governments throughout history testify. It is essential, therefore, that the government's use of physical force be 'rigidly defined, delimited and circumscribed; no touch of whim or caprice should be permitted in its performance; it should be an impersonal robot, with the laws as its only motive power.'
"This is the basis of the need for objective law. Laws must be objective in both derivation and form. And in both respects, "objective" refers to that which is based on a rational consideration of the relevant facts – as opposed to the subjective, the arbitrary, the whim-based.
"An objectively derived law is one stemming not from the whim of legislators or bureaucrats but from a rational application of the principle of individual rights. Rights tie law to reality, because they are a recognition of a basic, unalterable fact, i.e., of 'the conditions required by man's nature for his proper survival.'" (Harry Binswanger, "What Is Objective Law?")
Any system of government that does NOT recognize the inhering, inalienable rights of its citizens is one which is built upon unreality.
So what should we do if we want to see genuine constitutional government restored? Well, it begins with reacquainting ourselves with the practical applications of rule of law doctrine. As we saw from Fehrenbacher's description of constitutionalism given above, it doesn't just involve "ideas" but also "attitudes" and "patterns of behavior." If you want constitutional government, then you have to internalize constitutional principles within the people and apply them holistically, instead of trying to impose them from above. Liberty cannot be enforced by the power of government, but must grow from within the people as they understand its bases and seek to restore them. Upon what is the principle of the rule of law founded? I would give several principles that should apply to any republican system that will rest on the rule of law rather than the rule of rules.
1) Any laws that are made are crafted properly, both with respect to the process outlined in their founding document or established constitutional system, and with respect to protections afforded within it. In other words, in our system laws must be made by Congress and signed by the President before they have the force of law. While the principle of executive prerogative may have a place within republican commonwealthianism, we cannot tolerate the extensive abuses of presidential executive orders anymore. Nor should we tolerate lawmaking which hands extensive, often unconstitutional, latitude to executive regulatory agencies. Executive agencies should be bound by strict limits on their powers and narrowly circumscribed fields for their activities.
2) Such laws as are crafted must also apply to all citizens equally, even if not every citizen is necessarily and intimately affected by any particular law. We should not allow "special legislation" that benefits a few individuals or corporate entities. Neither should we tolerate unconstitutional judicial decisions which are made at the special behest of a few citizens or groups of citizens. Laws should apply equally to all.
3) The laws of the law should be openly available to the citizenry, both in the sense that they are promulgated to the public, and in the sense that they are few in number and easy to understand. A single law, when printed, should not fill a filing cabinet with dense legalese. Neither should there be thousands upon thousands of legal "landmines" in the federal code that have been slipped in as amendments, unknown to the vast majority of the citizenry who may fall afoul of them and suffer punishment without ever knowing they have done anything illegal. While I sympathize with the principle of "ignorance of the law is no excuse," it would seem to me that this can only apply when a nation's legal code does not fill an entire warehouse.
4) The laws, even if they do not violate a technical point of the Constitution, should be further restrained by our sense of natural law and right to stay within the boundaries of the proper roles of a genuinely federal and republican government. Such laws will be primarily arbitrative, federative, and legislative in form, while eschewing such redistributionist and regulatory forms as would infringe upon the natural rights of the citizenry.
For as long as a majority of Americans continue to prefer partial laws made to specially benefit certain factions of people, we will not really see a renewal of liberty in constitutionalism. As long as Americans continue to abide unconstitutional overreaches, administrative bullying, and obscurantist legislation confined to a small elite class of lawyers and judges, we will not have liberty. Commitment to these principles must be rekindled within the hearts and minds of the American people.
© Tim Dunkin
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