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Rule of Law

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July 2010

In the nineteenth century, “Go west, young man” was a call that Americans answered in spades.  For many, the land where the buffalo roam offered a chance for a new start. But life out West wasn’t easy; no-good varmints were not limited to animals.  The Wild West lived up to its name.  Inevitably, hombres like Jesse James, Billy the Kid, and the Clayton brothers tangled with the likes of Wyatt Earp, Doc Holliday, and the Texas Rangers.  Justice often came blazing out the smoky end of a six-shooter.

Among the famous figures of Wild West history was Phantly Bean, Jr.  Folks in Texas knew him by his middle name Roy, or more formally by his title, Judge Roy Bean.  Bean administered justice from his saloon, where he billed himself as the “law west of the Pecos.”  An enterprising sort, Bean expected customers doubling as jurors to buy drinks during court recesses.  Bean owned only one law book.  He used updates for kindling.  During a trial Bean became concerned that he would be lynched unless he freed a man accused of killing a Chinaman.  Bean ruled that there was a law against killing human beings but not against killing Chinamen. So much for the law.

Orderly civilization didn’t just happen overnight. The rough and tumble of the Wild West has been part of human social development since the cave man, just in different forms.   Civilizations bloomed only after people found ways to surrender the notion of might-makes-right in exchange for something better.  That “something better” became known as the law.  No civilization can last without it, for the law is the cornerstone of ordered liberty.  History still views the Code of Hammurabi, Babylonian law of the 18th century B.C., to be an important advance in the social order.

But just having law, even a whole code of laws, isn’t enough to achieve true liberty.  There must be an appropriate method of governance.  In some societies, power was placed into the hands of a single ruler.  To the Egyptians, Pharaoh governed as a god. That’s a great system for those in Pharaoh’s good graces, but kinda scary for those not.  Of course, the Egyptians were not the only people who centralized power.  The Israelites had their kings.  The Romans had their emperors. In the Middle Ages, vassals answered to lords, who answered to kings.

History has long exposed the dangers of a system based on the rule of men.  It gives a reigning ruler too much authority and discretion.  The “king can do no wrong” is untrue in the best of times.  It is enslaving in the worst.  So history celebrates the Magna Carta Libertatum, the Great Charter of Liberty, issued in 1215.  Under the Magna Carta, the English king was required to proclaim the rights of the common man, institute procedures to protect those rights, and limit has own authority to the bounds of the law.  The Magna Carta heralded the rule of law, the truth that liberty and order can only be guaranteed where men live by an authority greater than themselves.

As a country, we live by the rule of law.  Our Constitution is based on it.  It places power in the hands of separate branches of government.  Checks and balances are included to limit powers.  Congress may enact laws, but only in certain areas.  Powers not given Congress belong to the people. The President had no power to make law.  The President may veto laws, but that veto may be overridden.  Judges may interpret the Constitution and statutes but not rewrite them.  To assure their independence, federal judges receive lifetime appointments.  It’s a great system when it works.

But it has its limits, and founding father John Adams put his finger on the critical one.  “Our Constitution is made for a moral and religious people.  It is wholly inadequate to the government of any other.”   Adams realized that the rule of law must be based on a moral authority greater than any person or group of like-minded persons.  It comes from God.   The Ten Commandments are the cornerstone of any system of law worth the paper on which it is printed.  Without Adams’ recognition, liberty is at great risk.  As Thomas Jefferson said: “God Who gave us life gave us liberty. Can the liberties of a nation be secure when we have removed a conviction that the liberties are a gift of God?”

Today, our rule of law is in trouble.  The trappings are there, but a sickness grows inside.  Judges appointed only to interpret law are often making the law.  They do so at the behest of presidents wanting them to advocate the president’s personal views of the law.  Because these judges have lifetime appointments in the federal system, they become little less than kings.  The rule of law returns to the rule of men.  Supreme Court justice Antonin Scalia rightly calls it the “imperial judiciary.”  Judge Roy Bean rules again.

It’s all being played out in the nomination of Elena Kagan to the Supreme Court.  She is a friend of pro-abortion President Obama, but more, she is his voting ally on the Court.  From all indications, she will strongly support the continued right to kill today’s Chinamen, the unborn.  She will do so claiming support from the Constitution, as does the President who has nominated her.  But there is none.  The Author of ordered liberty does not permit the killing of Chinamen, no matter how young.

To end legal abortion, we must elect officials who respect the rule of law and will insist on judges who do, too.  And we better do it soon.  In Thomas Jefferson’s words, “Indeed, I tremble for my country when I reflect that God is just, that His justice cannot sleep forever.”  We should be so fearful.

Paul V. Esposito is a Catholic lawyer who writes on a variety of pro-life topics.  He and his wife Kathy live in Elmhurst, Illinois, where they raise their six kids.

©Paul V. Esposito 2010.  Culture of Life.  Permission to copy and distribute for pro-life purposes is granted. Comments?  Visit us at http://www.the-culture-of-life.com/

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