Thought I’d post a little primer on what the phrase “Rule of Law” means. It gets bandied about quite a bit but doesn’t get explained very often. I’ll go with the first line of the Wikipedia entry:
The rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedure.
I’ll also go ahead and throw in my half-remembered recollection of Alvin Toffler’s description of law as “potential violence.” The government has asserted a monopoly on violence and it has been crystallized into a body of law which dictates when and how that force can be used. That we are a “government of laws, not men” means that we have attempted to create a bulwark against arbitrary and self-serving use of force by individuals.
When you think of laws as “potential violence,” it becomes much clearer why legal authority must only be used in accord with legal constraints. If the wielder of power exceeds those constraints, he or she stops acting as a representative of our government of laws and starts acting as an individual. An individual wielding the potential violence of the United States government, free of legal constraints, is a frightening prospect.
With that in mind, concepts like the Unitary Executive are a little frightening. That particular piece of hogwash posits that Article II of the Constitution puts strict limits on the ability of the Congress to regulate activities of executive branch agencies — the net result of the theory being to put a substantial amount of unregulated “potential violence” into the hands of the individual who happens to occupy the Office of the President at a given time.
I do not have a copy of The Federalist handy but I recall one essay talking about the power of the sword or something along those lines in contrast to the law. The power of the sword was arbitrary power. Toffler’s definition has some irritating resonances for me, but it does apply if add the idea of law as being non-arbitrary as in not being the whimsy of a Yale graduate with a C grade point average.
It would be interesting to see some day if a left-leaning president would be as harmful to the country as the right-leaning Bush is now. What groups would have the money then to buy the laws they want? … probably the same ones buying the same laws. Bush has set the precedent that laws can be selectively enforced by the executive.
Oh, I don’t know that Bush set a precedent in this regard. He’s just the most egregious in recent memory — possibly ever.
One of the charms of the Internet is that documents such as the Federalist Papers are on line. One fully searchable version (from Yale Law School) can be found at:
http://www.yale.edu/lawweb/avalon/federal/fed.htm
My impression has always been that “unitary executive” is just a fancy euphemism for what might have been called monarchy or dictatorship in other times or places…i.e. the executive can ignore or suspend duly passed laws by the legislature, or interpretations of the law by the judiciary, at will.
Another exposition on The Rule of Law
Elbert Hubbard said, “So long as governments set the example of killing their enemies, private individuals will occasionally kill theirs.”