The Rule of Law
“But where say some is the King of America? I'll tell you Friend, he reigns above, and doth not make havoc of mankind... Let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know...that in America THE LAW IS KING.” –Thomas Paine
For its first 150 years (with a few exceptions), our Constitution stood as our Founders and “the people” intended – as is – in accordance with its original intent. In other words, it was interpreted exegetically rather than eisegetically – textually as constructed, rather than as a so-called “living” document, altered to express the biases of later generations of politicians and jurists.
But incrementally, constitutional Rule of Law in the United States has been diluted by unlawful actions of those in the executive, legislative and judicial branches – most notably, the latter – at great hazard to the future of liberty.
As Thomas Jefferson warned repeatedly, the greatest threat to the Rule of Law and constitutional limitations on central government was an unbridled judiciary: “The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will. ... The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”
Jefferson understood that should our Constitution ever become a straw man for a politicized judiciary to interpret as it pleased, Rule of Law would gradually yield to rule of men – the terminus of the latter being tyranny.
Regarding the process of amendment prescribed by our Constitution, George Washington wrote, “If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates, but let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed.”
Alexander Hamilton concurred, “[T]he present Constitution is the standard to which we are to cling. Under its banners, bona fide must we combat our political foes – rejecting all changes but through the channel itself provides for amendments.”
On the subject of constitutional interpretation, Jefferson wrote: “The Constitution on which our Union rests, shall be administered...according to the safe and honest meaning contemplated by the plain understanding of the people of the United States at the time of its adoption – a meaning to be found in the explanations of those who advocated it. ... On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed. ... Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction.”
James Madison agreed: “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that is not the guide in expounding it, there may be no security for a consistent and stable, more than for a faithful exercise of its powers.”
Justice James Wilson, a signer of the Declaration of Independence and one of the six original Supreme Court justices appointed by George Washington, wrote, “The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.”
The Federalist Papers, the definitive explication of our Constitution's original intent, clearly delineate constitutional interpretation. In Federalist No. 78 Alexander Hamilton wrote, “[The Judicial Branch] may truly be said to have neither FORCE nor WILL, but merely judgment. ... Liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.”
In Federalist No. 81, Hamilton declared, “[T]here is not a syllable in the [Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution. ... [T]he Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution.” And yet this non-existent “spirit” is the essence of the so-called “living constitution,” which liberal jurists now amend by judicial diktat rather than its prescribed method in Article V.
With concern for the future of constitutional integrity, George Washington advised, “The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution which at any time exists, ‘till changed by an explicit and authentic act of the whole People is sacredly obligatory upon all.”