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The Grounds on Which to Resist the Resistance

resistance

Perhaps no concept in American politics is more familiar and appealing—yet more vacuous of meaning—than “the rule of law.” A close rival might be the equally indispensable but ambiguous word “constitution.”

While rhetorical ambiguity sometimes proves useful in politics, sustained disregard of the meaning of these fundamental ideas has a demoralizing effect on republican government. Notwithstanding the pragmatic, if not providential, ability of the American people to select worthy leaders through most of their history, to misunderstand or ignore fundamental principles of law and constitutionalism is to begin to undermine what Abraham Lincoln identified as “the strongest bulwark of any Government, and particularly of those constituted like ours”—namely, “the attachment of the People.”

In ancient political thought, the rule of law was equated with rule by the traditional or formal will of the community. It was distinguished from rule without law—that is, rule according to the will of one whose diktat is imposed on the community by means of armed force under bond of personal loyalty. Such is the rule of tyranny.

Defined in terms of conflicting human opinion and will, “rule of law” was informed by philosophical controversy concerning the ground of legal obligation in nature, convention, tradition, custom, or divine revelation and command. “Rule of law” was ambiguous with respect to its relationship to justice. In the understanding of people in all times and places, the rule of law presumes a binding relationship with, if not identity to, principles of justice that are normative for the community as a whole and the individuals and groups that comprise it.

“Constitution” is a term of more modern usage the analogy to which in ancient society is unclear and elusive. A term of Latin etymological origin, “constitution” in Roman law refers to an order or directive posited or made by the emperor or other agent of authority. The classical Greek word politeia is accepted in modern scholarship as the functional equivalent of the modern term “constitution.” It refers to the objects and purposes of the political association, institutional structures, forms, and procedures by which governmental power is defined and exercised, and public laws and rules of action that regulate the conduct of government and individual citizens respectively. Tension between deposits of constitutional meaning—that is, between normative standards and the practical realities of political life—is reflected in controversy over how a people are constituted, which is to say their constitutional character and identity.

Rule-of-law constitutionalism thus seeks to establish and sustain principles, forms, and institutions of powerful, effective, and limited government for the common good of the political community and for the protection of the individual rights and liberties of its citizens and inhabitants.

The framing and ratification of the 1787 Constitution of the United States of America marked the establishment of fundamental political law in a nation based on universal principles of reason and justice affirmed in republican practices of liberty and consent in the American Revolution. In constructing a constitutional order, the Founders made themselves accountable to the people of the United States.

On July 4, 1776, in the Continental Congress, representatives of the political people of the American colonies declared themselves to be independent States. In 1781, they entered into a treaty alliance under the Articles of Confederation, and in the Federal Convention of 1787 organized a federal republican states-union. The American Republic consisted in a general government with authority to make general laws for the country as a whole, and a modified form of state sovereignty that recognized the diversity in manners and mores that characterized republican society at the local level.

In the first century of national existence, Americans achieved sufficient clarity of political and moral purpose to defend and maintain republican constitutional union under the rule of law against the political heresy of proslavery secession by the Confederate States of America, based on the claim of absolute state sovereignty and undertaken by military force. During the war, and after the defeat of the Confederacy, President Lincoln proposed a policy for reconstructing the Union that he described as the “re-inauguration” of national authority. Reconstruction was legally accomplished through the framing and ratification of the Thirteenth, Fourteenth, and Fifteenth constitutional amendments, which ended slavery and conferred citizenship, rights of due process and equal protection of the law, and the right to vote as fundamental principles of American republican nationality.

Having resisted internal subversion by racially hierarchical corruption of the republican principle, the United States in the 20th century turned back the external threat to constitutionalism and the rule of law posed by tyrannical regimes in Germany, Russia, and Japan. World War I, World War II, and the Cold War gave witness in historical fact and philosophical reality to the proposition, too easily lost sight of by peace-loving democracies, that the alternative to the rule of law is dictatorship by totalitarian force and violence.

The crisis of Western civilization and the rule of law in the 20th century prompted renewed appreciation, in American public opinion and in political thought, for the necessity and virtue of constitutionalism and the rule of law. Since the end of the Cold War in the 1990s, however, the Constitution and the rule of law have been called into question in ways not previously known. Ideological and partisan extremism have vitiated principles of reason, justice, and moral integrity that formed the ground of rule-of-law constitutionalism in America.

Achievements in domestic and foreign policy that defended the Western political tradition against the force and violence of totalitarian oppression are viewed by political, academic, and cultural elites as evidence of failure to fulfill the Progressive aspirations of the American people. The defense of government by American constitutionalism and the rule of law against 20th century tyranny is paradoxically superseded by the fabrication of a postmodernist, virtual-reality world. Intellectuals put forth Utopian demands for the construction of existentially authentic constitutional rights and privileges, oblivious to human nature and metaphysical reality.

A multitude of morally and intellectually bankrupt left-wing “know-nothings” whimsically aspire to deconstruct the Constitution as the authoritative ordering of American government and politics. In the face of this challenge, the text, principles, object, and intent of our fundamental political law, a law blending positive form and normative substance, present themselves as historical fact and ontological reality. This is the ground upon which the Electoral College constitutionalism of the Founders can be affirmed and maintained as the fundamental rule of law in the American Republic against the deranged machinations of the so-called “resistance movement.”

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on July 12, 2017 at 10:20:10 am

WOW ! Back to basics @ L&L !

Thank You.

Suggested further reading:

"The Rule of Law" by Michael Oakeshott

to be found at pp. 129-178 in the Liberty Fund publication "On History" 1999; still in print, available from the catalogue.

That is not an "easy read." -AND- there is more to be said.

Consider: do those who use the term intend "Rule" as a noun or a verb?

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R Richard Schweitzer
on July 12, 2017 at 16:32:30 pm

"Consider: do those who use the term intend “Rule” as a noun or a verb?"

Both.

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Thomas
on July 12, 2017 at 20:53:36 pm

For those with an attraction to scholarship:

On the "rule" or role of principles; suggested reading:

"Decisions of Principle, Principles of Decision"

THE TANNER LECTURES ON HUMAN VALUES
Delivered By
Robert Nozick

Princeton University

November 13 and 15, 1991

This can probably still be accessed on the internet.

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R Richard Schweitzer
on July 12, 2017 at 21:05:22 pm

But do they **intend** both at any single usage?

If they speak (or think) of the function of LAW (such as a "Supreme Law") can it possibly be both.

If the speak ( or think) of the function of a RULE, derivative of Law, can it possibly be both?

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Image of R Richard Schweitzer
R Richard Schweitzer
on July 13, 2017 at 06:28:20 am

You're on a roll... :)

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Image of Paul Binotto
Paul Binotto
on July 13, 2017 at 11:36:20 am

I suspect that it is all a matter of "perspective" - that is the vantage point from which one observes -

*I* RULE (verb), you obey my rules (noun).

Then again, we have come to a point where the rules of grammar no longer apply having themselves been subordinated to the need for "self-esteem", ( a quip best understood by those whose children have been subjected to Public Education during the last quarter century).

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gabe
on July 13, 2017 at 12:48:19 pm

"A multitude of morally and intellectually bankrupt left-wing 'know-nothings' whimsically aspire to deconstruct the Constitution as the authoritative ordering of American government and politics."

Perhaps a convenient one-word label for this is "Alinskyism." Instead of debating in good faith with the goal of achieving better understanding and better policies, Alinskyism pursues the goal of power, period, by destabilizing the system that makes reasoned debate and decision-making possible.

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Delawarean
on July 13, 2017 at 13:26:58 pm

My goodness, could Professor Belz be any more vague?

In Anglo-American political history, the notion of a constitution as the basic or fundamental law of the land developed after 1600; first in the hands of Edward Coke and later, in the 1620s, joined by parliamentarians like John Selden and John Pymm. Along the way, and strongly influenced by Reformed theology, the national constitution began to be viewed as covenant between the governed and those who govern.

The "rule of law" is simply submission by all, including the magistrates, to basic law of the land - the constitution. After 1630, it became clear to the English and particularly to the English who settled in the American colonies that only a written constitution that had been expressly ratified by the governed would be a suitable basis for government by rule of law.

A naïve reading of the phrase "rule of law" offers no useful basis for distinguishing between grotesquely repressive regimes with no useful constitution and more benign governments.

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EK
on July 13, 2017 at 18:28:40 pm

Left out of most of these discussions is the simple consideration that for any "Rule" (n.) to be effective there must be sufficient recognition, acceptance (and performance) of a concurrent **obligation** to respect, as **authentic** the conditions which the "Rule" prescribes.

Players in games with rules (and is it really a "game" if there are NO rules) have that obligation.

What is disappearing from the body politic is the sufficiency of that obligation.

And in its place Mouth Honor, curses loud and deep . . .

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R Richard Schweitzer
on July 13, 2017 at 18:48:03 pm

"A naïve reading of the phrase “rule of law” offers no useful basis for distinguishing between grotesquely repressive regimes with no useful constitution and more benign governments."

In the "Killer Apps" cited by Niall Ferguson in his work, "The West and the Rest," there is a "popular" explication in terms of social orders (not just the "regimes" they produce).

http://www.pbs.org/wnet/civilization-west-and-rest/

Both reader and author can profit from his book, but with wine this is quicker.

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R Richard Schweitzer
on July 13, 2017 at 19:01:51 pm

My apologies;

I should have cited the Reith lectures:

http://www.bbc.co.uk/programmes/b01jmx0p

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R Richard Schweitzer

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.