All Three Branches of Government Are Acting Above the Law

What do we do about it?

The greatest distinguishing factor between countries in which there is some freedom and those where authoritarian governments manage personal behavior is the Rule of Law. The idea that the very laws that the government is charged with enforcing could restrain the government itself is uniquely Western and was accepted with near unanimity at the time of the creation of the American Republic. Without that concept underlying the exercise of governmental power, there is little hope for freedom.

The Rule of Law is a three-legged stool on which freedom sits. The first leg requires that all laws be enacted in advance of the behavior they seek to regulate and be crafted and promulgated in public by a legitimate authority. The goal of all laws must be the preservation of individual freedom. A law is not legitimate if it is written by an evil genius in secret or if it punishes behavior that was lawful when the behavior took place or if its goal is to solidify the strength of those in power. It also is not legitimate if it is written by the president instead of Congress.

The second leg is that no one is above the law and no one is beneath it. Thus, the law's restraints on force and fraud need to restrain everyone equally, and the law's protections against force and fraud must protect everyone equally. This leg removes from the discretion of those who enforce the law the ability to enforce it or to afford its protections selectively. This principle also requires that the law enforcers enforce the law against themselves. Of course, this was not always the case. In 1628, the British Parliament spent days debating the question "Is the king above the Rule of Law, or is the Rule of Law above the king?" Thankfully, the king lost -- but only by 10 votes out of several hundred cast.

The third leg of the Rule of Law requires that the structures that promulgate, enforce and interpret law be so fundamental -- Congress writes the laws, the president enforces the laws, the courts interpret the laws -- that they cannot be changed retroactively or overnight by the folks who administer them. Stated differently, this leg mandates that only a broad consensus can change the goals or values or structures used to implement the laws; they cannot be changed by atrophy or neglect or crisis.

The values in America are set forth in the Declaration of Independence, and the governmental structures in America are set forth in the Constitution. The former -- that our rights are inalienable and come from our Creator and not from the government -- is not merely a recitation of Thomas Jefferson's musings. The Declaration is the articulation of our values then and now, and it, too, is the law of the land.

The Constitution was written -- largely by James Madison -- to define and to limit the federal government, and it was quickly amended by adding the Bill of Rights so as to be sure that natural rights would be respected by the government. This tension between the power of the majority -- at the ballot box or in Congress -- and the rights of the minority -- whether a discrete class of persons or a minority of one -- is known as the Madisonian dilemma. Stated differently, the Constitution provides for protection against the tyranny of the majority.

In our system, the power to resolve the dilemma is reposed into the hands of the judiciary, and those who have that power are to resolve it without regard to popularity or politics. Their oath is to the Constitution. They have the final say on what the laws mean. If they follow the Rule of Law, they will invalidate that which the government has done and which is properly challenged before them and which is not authorized by the Constitution. Their very purpose is to be anti- democratic, lest the popular majority takes whatever lives, liberties or property it covets. In return for life tenure, we expect judicial modesty, and we demand constitutional fidelity -- not political compromise.

In our era, the violations of the Rule of Law have become most troublesome when the government breaks its own laws. Prosecute Roger Clemens for lying to Congress? What about all the lies Congress tells? Prosecute John Edwards for cheating? What about all the cheating in Congress when it enacts laws it hasn't read? Bring the troops home from the Middle East? What about all the innocents killed secretly by the president using CIA drones? Can't find a way to justify Obamacare under the Constitution? Why not call it what its proponents insisted it isn't -- a tax?

We live in perilous times. The president acts above the Rule of Law and fights his own wars. Congress acts below the Rule of Law by letting the president do whatever he can get away with. And this summer, the Supreme Court rewrote the Rule of Law.

What do we do about it?

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written six books on the U.S. Constitution. The most recent is "It Is Dangerous To Be Right When the Government Is Wrong: The Case for Personal Freedom."

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  • Whiterun Guard||

    What do we do about it?

    Re-elect Obama?

  • Major Pain||

    The Judge's essay is fatally, if predictably, flawed. The Judiciary is not authorized the power to say what a law means, other than in the form of "guilty" or "not guilty." Nowhere does article III award article V powers to the judiciary. That was done by the judges themselves in Marbury v. Madison in 1803, an astounding arrogation of power.

    The legislature is simply forbidden by its constituting authority to make certain laws, such as ex post facto laws, laws infringing on the keeping and carrying of arms; as well as specifically empowered to make laws in others, such as with regard to interstate commerce.

    The judicial power is to say guilty, not guilty, and to assign sentence in the case of the former. That is what is assigned in article III.

    The assumption was that gentlemen working for the public, having sworn an oath and presumably both having read the document, and being smarter than a pig, would not go directly against the constituting authority. No "teeth" were given to the process, and so there is no downside to creating such unauthorized laws, or to rubber-stamping them as SCOTUS routinely does.

    That, unfortunately, was an error.
    .

  • JoyceSigns||

    WHEN DID THIS START?
    1. In 1790 the Constitution was became effective. Since then, 222 years have passed.
    2. In 1803, the Supreme Court ruled itself the power of judicial review, to interpret the Constitution (Marbury v. Madison). The Constitution was 13 years old. Since then, 209 years have passed.

    COURTS DECIDE APPLICABILITY In a lawsuit it is the job of each court, at every level of gov’t, to decide which laws do and do not apply in each lawsuit.

    THE HIGHEST LAW; THE HIGHEST COURT The Constitution is the supreme law of the land. When a lower law conflicts with it, the Constitution prevails. The highest law of the land is the Constitution. The highest court in the land is the Supreme Court.

    STATE SUPREME COURT AUTHORITY The Constitution says that state supreme courts can interpreter law at the state level.

    FED’L SUPREME COURT AUTHORITY Although the Constitution specifies itself as the supreme law of the land, and specifies the Supreme Court as the highest judicial authority, it does not specify the Supreme Court to have the power of judicial review when an interpretation of constitutional law is required.

  • JoyceSigns||

    WHAT HAPPENED This may have been an oversight on the part of the framers, or they may have believed the logical order was clear – state supreme courts interpreted state law; the national Supreme Court would necessarily interpret fed’l law. We will never know.

    WHAT WE KNOW
    1. Interpreting case law is the responsibility of every court.
    2. In 1803, lawsuits had become sufficiently complex that some were not directly spelled-out in Constitution, but the underlying principles and intent were still in there.
    5. Decisions had to be made what the constitutional remedy was for the 1803 case, but nowhere in the Constitution had the framers said, “When this happens, the Supreme Court as the highest court of the land is the only court with the standing to do it.”
    6. In 1803, as now, no higher court existed.
    7. The only judicial remedy was and remains: the Supreme Court of the land interprets the supreme law of the land.

    In the 209 years since 1803, the Legislative and Executive branches have not acted to rescind the Supreme Court’s judicial authority because each understands that this way is the only way. And, they know that if they ever decide to team-up and rescind the Court’s power, they can. It’ll be two against one.

  • Major Pain||

    You know when you need an "interpreter for US law"? When it's written in German. When the law says "you can regulate interstate commerce", that means commerce between the states. When you try and apply an "interpreter" to that, in order to convert plain English back into... plain English, you -- entirely predictably -- get nonsense like "uh, intrastate, dur?"

  • Major Pain||

    When the constitution says "the states and the feds cannot make ex post facto law", that means just fucking no, you can't. When you try and apply an "interpreter" to that, in order to convert plain English back into... plain English, you -- entirely predictably -- get nonsense like "well, unless it involves guns" and "omfg, it's not punishment, see?"

  • Major Pain||

    When the constitution says "no unreasonable search and seizure", and then goes on in the same bloody section to *define* what is reasonable (probable cause, supported by oath or affirmation, issuance of a warrant describing the specifics) that tells you exactly what conditions are reasonable. When you try and apply an "interpreter" to that, in order to convert plain English back into... plain English, you -- entirely predictably -- get nonsense like "Well, reasonable, uh, that's whatever we think it is, and anyway, not within 100 miles of a border, cuz, uh, uh, and besides, email isn't,uh, papers, uh, uh, dur"

  • Major Pain||

    I could go on - for a loooong time - but there's little point, as you're obviously just another sycophant.

    I *will* say that on the one hand, we have barely-functional boneheads like Scalia in place who don't even know what the word "militia" means in historical context, as demonstrated by decisions and his ignorant rambling just the other day; who attend political gatherings such as the Koch brothers shindig and so are telling us flat out that the current politics are involved with their decisions (obvious, but damn);

    ...and on the other hand, we have a nation of "oh, that's just the way it is" morons like yourself who are perfectly willing to let the fox completely run the chicken-yard, having handed them the keys in the form of "here are the specific rules you must use to run the chicken-yard, but since you decided you have the power to rewrite those rules, you can re-interpret them any way you want"

    The end result, of course, is that the chickens become re-interpreted as "fox-dinner", the rules are elevated to "a living fox-yard document", and somehow, the entire original intent for the chicken-yard becomes perverted.

    You disgust me. "Interpretation", my ass.

    And you know why the other two branches have let this stand? Because they're fucking CORRUPT from top to bottom, that's why.

  • Major Pain||

    and also:

    1. Interpreting case law is the responsibility of every court.

    No. reading the plain English of legislation and the constitutional basis is the responsibility of every court. If there is no legislation or constitutional point, it's not a matter for the court, period. See the Judge's remarks above: law first, then court.

    If you wink at a tree, and there's no law against winking at a tree, the court can't legitimately adjudicate any complaints about your winking.

    If you keep and carry arms in public or private, the court can't legitimately rubber-stamp any government intrusion into the issue, because they're FUCKING FORBIDDEN TO! You CANNOT be guilty due to an illegal law!

    2. In 1803, lawsuits had become sufficiently complex that some were not directly spelled-out in Constitution, but the underlying principles and intent were still in there.

    If there's no legislation, there is no case. If the legislation conflicts with the constitution, someone has broken their oath, and the legislation is no more than malfeasance, as would be any ruling made using it.

    5. Decisions had to be made what the constitutional remedy was for the 1803 case,

    No, they didn't. The case could have (should have) been dismissed.

    7. The only judicial remedy was and remains: the Supreme Court of the land interprets the supreme law of the land.

    Wrong. Just plain wrong. You're talking about arrogation of unauthorized power. That was what they DID. It was certainly not the only possibility.

  • JoyceSigns||

    For the sake of argument and because I think the Court’s 1803 exercise of judicial review is a matter to be considered separately from the its subsequent exercises of same, I reserve the right to come back to it momentarily but will tentatively agree that in the 1803 case the Supreme Court overstepped its constitutional authority when it ruled that an Act of Congress was unconstitutional and repealed the Act.

    The tacit consent of Congress in permitting the Court to do it that time (in 1803) implies the Court’s authority to do it again, which it did -- and has continued to do (about 8,000 times) ever since. These subsequent exercises of judicial review are legal under the implied authority of Congress’s tacit consent.

    Returning to the matter of 1803, whether or not the Court overstepped its constitutional authority is a moot point because neither Congress nor the President reacted legally. Their silence on the matter was tacit approval of it, which by implication grants the Court the authority.

    Until such time as a Congress and a President team-up to repeal its implied authority, the Court has acted and will continue to act with that authority.

  • JoyceSigns||

    If an acquaintance of mine enters my home without permission, takes a car key belonging to me, and proceeds to drive a car belonging to me around for an hour before returning it and the key, all of this without my consent, the acquaintance has broken several law. Let’s assume I find out about it the next day. The acquaintance will suffer no legal consequence from breaking those laws until I react legally.

    If I remain silent, the acquaintance then has the implied authority to do it again because my silence is my tacit consent. When the acquaintance does it again and I decide to take legal action, the acquaintance might be warned by the judge not to do it again, or he’ll have to pay the price. Why? Because I let him get away with it the first time. Now, if he should do it again after his implied authority has been repealed, he will answer legally.

    Or, supposing I let him get away with it 8,000, times and then decide to have him arrested. A judge (if it got that far) would likely raise an eyebrow, tell us to settle it between ourselves, and will warn the acquaintance that if he does it again he’ll have to pay the price. The judge might even hit me with a charge of bringing frivolous suit.

  • Major Pain||

    A couple things.

    1, the constitution isn't an agreement between congress and SCOTUS and the executive. The constitution is the authority given by the people that says how the government must be put together to be acceptable -- literally, to be constituted. It can only be changed as specified in article five. When the government is out of hand overall, as it is here, the fact that congress and SCOTUS concur that they can overstep the bounds of the constituting authority has no bearing whatsoever on the legitimacy of the act.

    The bottom line is that the government is legitimate as long as it stays within the bounds of the constitution. It's not doing so; ergo, it isn't legitimate. Period.

  • Major Pain||

    2, we (the people) have NOT "allowed them to get away with this" 8000 times. The people have screamed bloody murder, over and over again. They have repeatedly said "this is unconstitutional" and taken it to SCOTUS, who just laughs them out of the room.

    We have an out of control government, and no practical way to do anything about it. And we have a severely dumbed down and misled populace, one made stupid at the hands of sophist nonsense coming from all three legs of government and a whole bunch of koolaid-slurping lawyers. So the one thing we really ought to do... we can't do.

  • JoyceSigns||

    Where the people (represented by the Constitution) are silent, they are silent.

    The people (Constitution) have not established bounds concerning the matter of constitutional review – they are silent. In matters concerning an action about which the people (Constitution) are silent, the people have the standing to challenge said action. Such challenges, if they are constitutional, are brought by representatives who have been duly elected to act on behalf of the people.

    It is on this point that I believe many citizens are and have been unclear: that we the people have the authority and responsibility of action through representatives elected by us.

    Specifically, if citizens wish to challenge the practice and exercise of constitutional/judicial review, they must seek to elect representatives to do it.

    As evidenced by the Court’s substantial, and well known and documented, history of constitutional/judicial review, and coupled with an apparent failure of those concerned to elect a number of representatives sufficient to represent them in the matter, the majority of Americans do not take exception to the practice.

    The government is neither out of bounds nor out of control; the collective will of a preponderance of Americans is expressed by the president and representatives/legislators elected by them.

  • Major Pain||

    Ok, now you've simply jumped the shark. The idea that we can elect representatives that represent our will from the uniformly pre-selected ranks of the two (one) party system is ludicrous.

    let me explain something to you, or at least to other readers, since you seem to be amazingly dense.

    When laws are created that directly, obviously and specifically violate the constitution, as they have been, and cases move all the way to the supreme court, where they are disposed of by the court rubber-stamping the violation, again as they have been -- the system is completely broken. No corrective vector remains. If you don't understand that, you're so deep into the koolaid that there's just no hope for you.

    Also, your suggestion of electing representatives to change these laws... that's just stupid. The whole election process is broken, but even if it weren't, half of the problem is with the judges on the court -- and they cannot be voted for; lifetime corruption is what we have there.

  • Drink_Liber_Tea||

    Valid points Judge. I always thought the same thing about the Congress and their hearings. Why do they care about baseball anyways? And the President, choosing to not enforce certain laws when he has direct knowledge of crimes occuring. Crazy times.

  • Ron||

    and to extend on your comment when the President refuses to enforce the laws he doesn't like then soon the citizens will no longer obey the laws they don't like. Since Justice Roberts opinion actually allows the states to no longer obey the federal laws , he said the states don't have to comply with Obamacare and the fed's can't punish them for not implementing it. So in extension neither do the citizens have to obey the fed's or the states thus we have anarchy. Approved by the
    Supreme court

  • DJK||

    Ron, I don't think that you understand federalism very well. The states are sovereign and the federal government only has a limited number of things that it can force the states to do. This is one of the central concepts of the Constitution.

    Please note that most of the major issues in the PPACA case were decided in a manner that favors the federal government over the states. Because (whether you agree with the decision or not), the Supreme Court found that one of Congress' enumerate powers covers the individual mandate, etc. It was only on the Medicaid issue that they found the federal government to be overreaching. Do you understand that, by their doing so, the states are not disobeying Obamacare? That part of the law simply doesn't exist - there's nothing for states to disobey.

  • DJK||

    Furthermore, the President has all kinds of power to go against Congress. He is explicitly empowered to veto bills (seems to be going against the Congress' wishes). Moreover, he is in charge of the executive branch and has all kinds of discretion over which actions that branch can take. Within restrictions laid out in the Constitution, such as the fact that Congress must authorize war. The Judge is not concerned about Obama choosing not to enforce bad laws - that's likely in his prerogative. He's concerned about de facto enactment of legislation by the executive branch.

  • Ron||

    DJK
    do you understand that even though the president can veto laws the congress can over-ride that veto. In that context a president who chooses to not enforce a law is essentially trying to get around congress, hence disobeying the wished of congress, which I do believe congress could force the president to enforce those very same laws if they weren't so Lame. This also applies to congress when Bush made signing statements. So When the enforcers don't enforce why should anybody comply with any law.

  • DJK||

    Agreed - Congress can overturn a veto. What's your point? The veto power is extremely potent. It seems that the veto has been overturned by Congress 110 times. That might seem like a lot, but it's only once every two years on average. And there have been 2564 vetos. That's not a very great overturn rate. And compare it to the 600+ times that FDR vetoed bills in his 4 terms or the 400+ bills that Grover Cleveland vetoed in one term.

    You seem to be arguing that, because the President has the veto power, he doesn't need the ability to choose which legislation to enforce - essentially that the powers are one and the same. Last I checked, the President doesn't have the power to retroactively veto - that is, to veto legislation enacted by Congress prior to his arrival. If you want, think of the selective enforcement mechanism as a means of reigning in the excesses of previous Congresses.

  • DJK||

    Don't take this to mean that I'm defending the Imperial Presidency. I'm certainly not. I have a very big problem with the President taking powers that are specifically reserved to Congress (de facto declaration of wars, writing of legislation through regulatory agencies, etc). However, we live in a land of way too many laws doing way too many things that the federal government has no business doing (drug war, etc). If the President wants to stop enforcing stupid laws from Congress, I'm all for it. And I'm pretty sure it's within his purview under the Constitution.

  • DJK||

    You also seem to be laboring under the delusion that selective enforcement is the only mechanism by which federal law can be change through caprice. It's certainly not. Congress rewrites laws all the time (and at a much greater pace than the President decides not to enforce them). Back-to-back Congresses can change the law and back again in two year cycles. It's just as hard to prepare for all of these things as it is to prepare for a President's decision not to enforce.

  • Richard Jones||

    No no no no no!!! I cannot stress this enough! You can't say it's OK for the President to do something at his discretion just because you agree the law is "stupid." What happens when a new President comes along and decides that laws that you believe are absolutely brilliant and necessary don't need to be enforced? We cannot allow the Rule of Law to be administered by fiat, just because we agree with some of the reasoning. That undermines the entire system and is a slippery slope. We cannot allow the President to effectively change the laws as he sees fit.

  • WTF||

    The Constitution was written -- largely by James Madison -- to define and to limit the federal government, and it was quickly amended by adding the Bill of Rights so as to be sure that natural rights would be respected by the government.

    I guess Madison just didn't know he was negating the entire rest of the Constitution when he stuck that commerce clause in there....

  • Lord Humungus||

    COMMERCE CLAUSE!!

  • sarcasmic||

    SMASH!

  • Heroic Mulatto||

    What do we do about it?

    Well...

    When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them...
  • jacob the barbarian||

    OK. So after the ink dries, then what?

  • ||

    What do we do about it? I fear that if we cannot turn the tide at the ballot box, then there may be too few of us to turn the tide by any other means.

  • ant1sthenes||

    1. Get a lot of like-minded people in one defensible area.
    2. Secretly make defense agreement with nuclear-armed rival power (who may care about freedom, or more likely just wants to fuck Uncle Sam).
    3. Write a fancy, inspiring manifesto that talks up the justness of your cause and lays out a host of grievances that makes the U.S. look vaguely Nazi-esque.
    4. Secede.
    5. With luck, can stall becoming corrupt and tyrannical for a few decades.

  • sarcasmic||

    6. Get nuked from orbit.

  • Libertymike||

    By whom?

    You sometimes, nay often, tend to overlook that a whole lot of parasitic statists will die as well. That alone is soothing.

  • $park¥||

    What do we do about it?

    Really? Look around. The country is the way it is now largely because the majority of the people living here want it this way.

    I suppose the people who don't want it this way, being too few to change the course through Constitutional means, could attempt a secession but I think we all know how that would turn out.

  • ||

    Unless it's a titan like Texas that's seceding, I don't see the federal monster letting it go without a fight.

  • Heroic Mulatto||

    Way too many military bases and infrastructure for Texas to even think about it.

  • sarcasmic||

    Couldn't that be said of any state? Well, perhaps with the exception of Vermont.

  • ||

    Not really a factor if 1) enough people support the secession and/or 2) the military still has the sort of integrity I hope to God it does.

  • Alan||

    If South Carolina decided to secede again, well - it's home to the Savannah River Site.

  • Rich||

    What do we do about it?

    Obviously the President should appoint a Rule of Law Czar.

  • DrAwkward||

    Ha! very nice.

  • Lord Humungus||

    I wish there was a Libertopia to flee to - hell, I'll take America in the 70s-90s over what we have now.

  • General Butt Naked||

    *cough* Somalia!Roadzz1! *cough*

  • David_TheMan||

    The answer seems to me seems that people have to disengage and delegitimize the government.

  • Bee Tagger||

    This whole trial is out of order!

  • Whiterun Guard||

    Loud noises!

  • Whiterun Guard||

    What do we do about it?

    Apparently not post AM links, I mean WTF.

  • sarcasmic||

    What do we do about it?

    Dream.

    If/when the next revolution comes, the collectivists will win and humanity will return to its default state of slavery to the government.

    That little blip of liberty will not only die forever, but will be blamed for all evils in the world.

    History will look back upon the failed American Experiment as proof that markets don't work, that liberty doesn't work, and that concentrated power is the solution to all of humanity's problems.

  • Scruffy Nerfherder||

    The personal life is dead in Russia. History has killed it. [...] The private life is dead - for a man with any manhood.

  • Lord Humungus||

    sadly this. And people wonder why I'm a bitter old man.

  • WTF||

    Thanks, sarc; now I will go home and drink myself into a stupor to try to forget the truth of what you just said.

  • Loki||

    Ditto. I didn't have much optimism about the future to begin with, but now that sarcasmic has wiped his ass with it, there's little point in doing much other than go get wasted. It won't help the situation, but it might make it slightly easier to take if I'm too blitzed to care.

  • Libertymike||

    I love sarc. Don't worry, he will personally take out as many statists as he can.

  • Mike M.||

    Another home run crushed out of the park by the Judge. If only some president had the balls to appoint him to the Scrotus. I know; that'll be the day, right?

  • John Galt||

    If only the American people would finally be fed up enough to appoint him as furniture repairman over the three unbelievably corrupted and broken stool legs.

    Eh, never happen.

  • Tulpa the White||

    You're lumping in Roberts not cleaning up the mess created by the other two branches as "acting above the law"? It's not even comparable, and no law says the SCOTUS has to clean up such messes, especially when no rights violations are involved.

  • UCrawford||

    I didn't really see him lump Roberts in on this article...primarily because I didn't see him discuss any actual examples of the branches of government acting above the law. I agree that Congress does it, I agree the ACA decision was a bad one, but most of what Napolitano discussed (Clemens, Edwards) was not the government overstepping its bounds but simply engaging in poor decision making within their authority. The only thing I saw him mention that was overstepping was the drone war, which he spent no time really discussing. Frankly, this was a vague and kind of worthless article...I think it would be nice if Napolitano, as a legal analyst, would actually give us a full legal analysis about a particular issue rather than a general rambling screed that's identical to something I can read in any number of blogs.

  • Libertymike||

    Where in the Declaration of Independence or the federal constitution is there an affirmative grant of authority given to Congress enabling it to make it a law to prevaricate to it?

    The Judge makes it clear that there can be no rule of law where the lawmakers make laws that do not apply to all equally. Hence, if Tulpa lies to us that he truly is a champion of liberty, why should he be prosecuted? If Roger Clemens lies to Congress, so fucking what?

    Implicit in the judge's writing is that there can be no rule of law where the king is the sole arbiter of the same.

  • UCrawford||

    Uh huh...like I said, it would nice if Napolitano would offer more than the generalized bitching you can find on any number of blogs.

  • John Galt||

    The Judge has an impeccable understanding of proper stool construction.

  • JoshSN||

    Judge Napolitano, I object to lots of details above.

    The goal of all laws must be the preservation of individual freedom.

    There's never been a valid law for military conscription? There's no set way to determine if this draft, or that draft, really has the goal of the preservation of freedom. WWII seems good, Vietnam seems bad, but we'll never know for sure how freedom would have turned out, had we done otherwise.


    Thus, the law's restraints on force and fraud need to restrain everyone equally, and the law's protections against force and fraud must protect everyone equally.

    The police are allowed to kidnap people, subject to a writ of habeas corpus, and also allowed to deploy deadly force in a wide variety of circumstances where regular people are not. Now, of course, the laws separating us can go much too far.

    As for the Declaration, our creator may well have been nothing. The Declaration was an expression of their values. We don't execute car thieves, but horse thieves in the 1780s were executed.

    I'm not saying values are changing for the better, but I would say that places like Fox News encourage the worst in Americans, encouraging them to see themselves as better than everyone else, inherently superior, which leads to imperiousness.

  • Ron||

    You do know that conscription was eliminated don't you. And what the hell does fox news have to do with whats being discussed here, have they ever said they want to bring conscription back. I know several progressive stations have but I haven't heard that on Fox.

  • Mr. FIFY||

    "better than everyone else, inherently superior, which leads to imperiousness"

    You just described virtually every politician and bureaucrat, Josh.

    I think the irony is lost on you, however.

  • JoshSN||

    I'll try to explain it to you, Ron.

    Judge Napolitano said the goal of all laws must be individual freedom. Any law of conscription denies individual freedom. No one imagines that the world would have less freedom if America had not fought so vigorously in WWII.

    So, would the Judge say conscription during WWII was a bad law, because it restricts individual freedom? Would the Judge say, overall it was a good law, because, on the whole, more freedom was preserved than was lost? Would the Judge have preferred to perhaps lose WWII, or give the Soviets a much bigger victory, by relying only on volunteers during WWII?

    See, he made an unqualified statement which is at odds with what, we think, we know we all want, i.e. the defeat of the Third Reich, which had, after all, declared war on the United States.

  • DrAwkward||

    "..encouraging them to see themselves as better than everyone else, inherently superior"

    Please. You've never met a Frenchman? A German? You think Americans invented national pride, and should be the only country on Earth not allowed to express it?

    Those on the left believe in American exceptionalism too; that we're exceptionally evil, greedy and unfair. You might believe this if you just ignore the actually history of mankind.

  • Mr. FIFY||

    Haven't seen you here before now, Dr., but welcome aboard.

  • DrAwkward||

    Thanks! I've been getting Reason magazine since the mid-90's but mostly a lurker on HR until recently.
    It's great to have a place to discuss liberty issues with people who never tire of talking about it (friends and fam, not so much).

  • Mr. FIFY||

    If you've lurked here long, you'll know we have some state-loving irritants, but overall it's a great place to be.

  • DrAwkward||

    I wouldn't mind some open-minded, respectful libs who haven't been thoroughly brainwashed to comment here. I'm learning that's only a mythical creature, alas.

  • Ralph Wylie||

    To answer Judge Napolitano's "What do we do about it?" question:
    A.-We can vote them out.
    B.-We can overthrow the government forcefully.
    C.-We can learn to Baah like the sheep we've become and just accept it.

    I like choice "B" a lot, given the alternative.
    "Give me liberty or give me death" might well be the battle cry if Obama is re-elected.

  • JoyceSigns||

    Judge Napolitano,

    When you refer to the Rule of Law as a sort of stool, you give it three legs or principles that support it. If I read your article correctly, your principles supporting the Rule of Law are:

    1. (a) laws may not render unlawful behavior that was lawful when the behavior took place, and
    (b) laws must be crafted and promulgated in public by a legitimate authority, and
    (c) the goal of all laws must be the preservation of individual freedom, and
    (d) a law is not legitimate if it is written by an evil genius in secret, or
    (e) if its goal is to solidify the strength of those in power, and
    (f) it is not legitimate if it is written by the president instead of Congress;
    2. no one is above the law and no one is below the law; and
    3. the goals, or values, or structures used to implement laws, can only be changed with a broad consensus.

    Your second principle seems to mean that justice must prevail, that persons and entities under the law are to be treated equally by it.

    Your third principle seems clear when you say “structures used to implement laws” (you subsequently write that structures means what the Constitution says); but, is less clear when you refer to “goals or values.” And, of course, I assume that by “broad consensus” you mean as law-implementing structures change within a Republic.

  • JoyceSigns||

    By “goals” are you referring back to your first principle where you say that the goal of all laws must be the preservation of individual freedom?

    By “values” are you referring to the Declaration of Independence? You tell your readers that it is not merely a letter penned by Jefferson because it is also the law of the land. The Declaration of Independence, while a revered symbol of liberty is not the law of the land, is it?

    Your first principle is not as simple as are your second and third. I think many would disagree that “all laws” must protect individual freedom, saying instead that the goal of laws is to protect society. But, the standout is that you say presidents cannot legitimately create law.

    As I understand it, the Constitution does not prevent the president from issuing executive orders and memoranda, which, with legal authority and publication, can have binding and legal force and effect, constituting law. Thus far (and I am lead by the consecutive numbering of them), I believe there to be some 13,600 executive orders (of course, this figure does not include memoranda or proclamations).

  • JoyceSigns||

    I believe it was Justice Jackson (concurring in Youngstown, 1952) who wrote that the President's authority to issue executive orders (and proclamations) can be broken down into three categories. In essence, these three categories include executive orders and proclamations that:

    1. are issued pursuant to an express or implied authorization of Congress;
    2. are based upon undefined powers that lay in a "zone of twilight" where the President acts solely on the basis of his independent power and Congress has not spoken; or
    3. are incompatible with the expressed or implied will of Congress, and thus rely solely upon his constitutional authority.

    The authority of the president to create law established, it does seem that Congress nonetheless has a range of options available by which it can effectively nullify, limit, or otherwise impact effectiveness of orders, memoranda, and proclamations, or rescind them.

  • JoyceSigns||

    Your readers may be interested in a few of the many instances of executive orders that carry/ied the force and effect of law:

    o In 1942, President Roosevelt used executive order 9066 to direct the interment of more than 120,000 Japanese Americans, many of whom were U.S. citizens.

    o In 1970, President Nixon used executive order 11564 to establish a new federal agency, the National Oceanic and Atmospheric Administration, under the Department of Commerce.

    o In 2001, President Bush issued executive order 13228 combining over 40 federal law enforcement agencies and creating the Cabinet-level Department of Homeland Security.

    o In 2008, President Obama used executive order 13489 limiting executive privilege protection and revoking G. W. Bush’s executive order 13233.

  • JoyceSigns||

    The American Bar Association (ABA) has struggled to characterize Rule of Law and has looked* to a number of esteemed men and women in search of an answer to that question. As your readers probably imagine, the variety of definitions might be inspiring if it weren’t so darned challenging.

    *Here is a link to what the ABA found: http://www.americanbar.org/con.....ckdam.pdf.

    During a 2007 interview with ABA President Neukom, Supreme Court Justice Kennedy said, “When we [Americans] talk about the rule of law, we assume that we’re talking about a law that promotes freedom, that promotes justice, that promotes equality.”

    Based on Justice Kennedy’s 2007 remarks, if asked I imagine he might say that Rule of Law is at work when our laws:
    1. promote freedom,
    2. promote equality, and
    3. promote justice.

  • JoyceSigns||

    These may be, as you say, perilous times (Did Edwards stand trial for “cheating” or for spending campaign money illegally?); however, from my seat, I see the deceivers of the American people, the many acting egregiously outside the law, causing injury to now countless Americans and their families are found in America’s corporate positions of power, among our most wealthy. The “evil genius” straw man you direct your readers’ attention toward is not in the Supreme Court or the White House.

    After reading your article, your readers might enjoy reviewing Justice Kennedy’s 2007 definition and that of esteemed others. Some may have misunderstood it the first time.

    The Supreme Court has not rewritten the Rule of Law, Judge Napolitano. Here is the real question facing American voters:

    What will we do about Dimon, J.P. Morgan Chase, Peregrine, Wasendorf, Madoff, Comerica, Doral Financial, Enron, Baxter, Skilling – not so much them, but the one’s still creeping about in dark corporate recesses.

  • triclops||

    All that, just to say, "it's the evul KORPORASHUNS!"?

    I am afraid of the tsunami of text that may follow, but why don't you spend your text making that argument?
    Seriously, specify the deceit/lawlessness. Not just a couple of vague sentences after writing about how complex good Rule of Law is.

    I am confused when progressives obsess over the ill doings of the rich. While those certainly exist, money is only used to buy the true source of power to do ill, political power. Political power provides the safety from wrongdoing, accountability, etc.
    Politicians get it for free, and love to abuse it. They get extremely jealous when the wealthy use their money to buy the same. Then progressives take the bait from pols hook, line, and sinker.

  • JoyceSigns||

    My post is a response to Judge Napolitano's post, so speaks to his definition of Rule of Law, the legitimacy of law written by the president, and states that the Declaration of Independence is not law.

    I did not understand Judge Napolitano's post to be about politics or politicians, but about whether the executive and judicial branches of our government act outside of the law. For this reason, I did not comment about politics or politicians.

    Because the Supreme Court has not rewritten the Rule of Law, any question of what might be done in response to a supposed rewrite is moot.

    The former judge ends with a question about which he feels concern, as did I; mine is what to do to stem wrongdoing that -- although ruthless, proven, and about which there is no disagreement on either side of the aisle -- continues to occur within our corporations, involving CEOs in particular.

    The allusion "Dimon, J.P. Morgan Chase, Peregrine, Wasendorf, Madoff, Comerica, Doral Financial, Enron, Baxter, Skilling" refers to specific deceit/lawlessness; further comment unnecessary.

  • Alan||

    Excellent article by the judge.

  • RussianPrimeMinister||

    It absolutely kills me when I see people arguing FOR the use of executive orders as binding laws. Executive orders were, originally, supposed to simply be the Presidents way of enacting his power to enforce the law.
    If, for even one moment, you believe that the president can simply sign an executive order and have it become a binding and legal U.S. law, then you believe that the president is basically our King.
    The united States is not a monarchy. The president was never supposed to have the kind of power they have been wielding for nigh on seventy years now. The Constitution, backed in explanation of purpose by the Federalist Papers, clearly explains that nearly 90% of what Congress and the President have done in recent years is simply illegal.
    I'll make that even more clear, for those of you who don't understand; Congress and the president believe they can do whatever they like. They know we don't underestand their legal limitations, and that all they have to do is toe the line of our anger, so that it never boils over into rebellion. As long as we are placated, they may do as they please, with whatever they choose to take from us.
    I find this repulsive. How anyone else can live with this thought is simply beyond me.

  • JoyceSigns||

    Not every presidential executive order or memorandum is law (having binding and legal force and effect). However, presidential executive orders and memoranda that are published in the Federal Registry become law.

    A great many of the approximately 13,600 executive orders are in the Registry, but not all. Many executive orders are written with respect to matters of short-term or limited consequence, or with little or no legal application or urgency, so there is no need to publish these in the Federal Registry.

    We may view presidential executive orders that are published in the Federal Registry at any time, physically by visiting the Office of the Federal Registry, or virtually online at: http://www.archives.gov/federal-register/.

    Whether the content of a particular presidential executive order is in keeping with the Constitution or not, lawfully executed or not, it nonetheless becomes law once it is published in the Federal Registry. Sometimes, this is a point at which the Republic’s system of checks and balances becomes quite visible.

    Our Republic form of government enables the Legislative and Judicial branches (essentially Congress and the Supreme Court) to move against an executive order it deems unconstitutional or otherwise undesirable, and defines how such objections are lawfully carried out.

  • JoyceSigns||

    Such checks and balances are not part of a Monarchy, where the monarch inherits the position and is the sole head of state, usually for life. Happily, for us, the United States is a Republic with three branches of government and checks and balances, and not a Monarchy.

    “The Federalist” [Papers] is not the law of the land; the Constitution is. As you know, the Judicial, Legislative, and Executive branches work together to ensure that the business of the Republic is Constitutionally conducted – a staggering responsibility when, for example, 40,000 laws were enacted on December 31, 2011, resulting from the legislative sessions that year (US News).

    There is little importance in what Congress or anyone believes America’s citizens do or do not understand about the allowances and limitations of governing power. There is; however, great importance that we do understand it. Government is called to account by the citizenry to the extent that the citizenry understands and acts upon its collective rights and responsibilities.

    Congress commissioned a history and explanation of presidential executive orders, proclamations, memoranda, and so on (updated 1999). The resulting report to Congress is accessible here: http://www.llsdc.org/attachmen.....5-772.pdf.

  • RussianPrimeMinister||

    When a weak Parliment, Congress, or Senate refuse to stop, or are complicit in illegal actions, then what we have, effectively, is a monarchy. Regardless of the form, regardless of how often we replace our king, it is still effectively a monarchy.
    And you are correct in a fashion, madam. The Federalist Papers are not law. They are an explanation of the constitution, written by several of the creators of the constitution. It has been advocated many times over the last two centuries as required reading for(and mandatory testing on) young law students. Instead, this comprehensive study of our constitution has been ignored, for more preferred modern readings of our laws.
    What we have, in essence, is unchecked power in all three branches. The only time D.C. doesn't immediately get what it wants is when we rumble our dissent, and threaten revolt for their actions.
    My original point, though, still stands. Much of what our Representatives, Senators, and Presidents do is simply outside the bounds of the Constitution. The only reason anybody allows it to continue is because of our "modern" and bastardized view of that document. Were this 1802, there would be a mob with pitchforks and torches outside the doors of the Capitol Building as we speak, explaining calmly that they would burn the Congress to the ground unless they got their act together.

  • RussianPrimeMinister||

    It is THIS, I feel, that America has forgotten. That revolt is a right. When our leaders slip their ordained bonds, it is the job of the masses to remove them from power and remind the other politicians that it will happen again, should they attempt the same.

  • JoyceSigns||

    In 1789, just three days after his inauguration, Washington issued the first executive order (EO). Hamilton defended the president’s right to issue EOs, saying that the Executive branch’s power is limited only by the explicit exceptions or qualifications written into the Constitution.

    Since that time and throughout the 222 years since, presidents have continued to issue EOs. Lincoln has the distinction of, in 1809, issuing the EO 1 - the first to be officially numbered. Today, there are some 13,600 EOs – the result of 44 prolific presidents.

    As you know, in 1788 “The Federalist” was published. In Federalist 46, James Madison wrote: "The accumulation of all power, legislative, executive, and judiciary in the same hands ... may justly be pronounced the very definition of tyranny." Madison, himself a framer of the Constitution, especially of the Bill of Rights, issued three EOs during his two presidential terms, 1809-1817.

    Jefferson and Adams signed the Constitution, then went on to become presidents. They, too, wrote law by issuing EOs. In fact, of our 44 presidents, all have done the same. Presidential EOs are part and parcel of a Republic – other countries formed as Republics call them by other names - edicts, directives – and they function in exactly the same way.

  • JoyceSigns||

    Madison and 43 others, who have issued 13,600+ EOs, did/do so fully aware that they do not have, as Madison wrote, “The accumulation of all power … in the same hands.” Each of the remaining two branches (Congress, Supreme Court) has the power to overturn presidential EOs. In 222 years they have done so three times (one of which was later rescinded).

    That Congress and the Court have not acted to overturn more than 13,600 EOs over the course of 222 years does not render our Republic effectively a Monarchy. What it shows is the overwhelming constitutionality of thousands of EOs issued by collectively issued by 44 presidents.

    This country would be taking a giant leap backward in a move toward the anarchy and revolution about which you and many commenters here speak. As you know, Hamilton wrote the bulk of “The Federalist.” Hamilton wrote, “Too much power leads to despotism, too little leads to anarchy, and both eventually to the ruin of the people.”

  • JoyceSigns||

    The Constitution does not give citizens the right to revolution; it does grant citizens the right to petition.

    The first major exercise and defense of the constitutional right to petition was around 1835, when citizens sent 130,000 petitions to Congress demanding an end to slavery. Americans have been petitioning the legislature ever since. Sometimes it works; sometimes it doesn’t. The point is to know as much as possible about our Constitution and how a constitutional republic works – and then, work it.

  • TindWeee||

    Lets hit it up dude, I mean like seriously dude. WOw.

    www.New-Anon.tk

  • ||

    timate if it is written by an evil genius in secret or if it punishes behavior that was lawful when the behavior took place or if its goal is to solidify the strength of those in http://www.maillotfr.com/maill.....-3_10.html power. It also is not legitimate if it is written by the president instead of Congress.

    The second leg is that no one i

  • brushtom||

    nice job, another great example of how simplicity makes things prettier. this post is absolutely good.

  • Tagalog||

    What the hell do you mean, "what do we do about it?"

    What could be more obvious? They don't respond to public demonstrations that overwhelmingly tell the government how discontented we all are.

    Thomas Jefferson, when he advocated a new American Revolution every twenty years, saying that government should fear us, not us fear the government, what we need to do when the government will not respond to voting or to demonstrations is obvious.

  • Tagalog||

    We the People allow the government to exist to serve us, not for us to serve the government.

  • Tagalog||

    Where do government leaders and their dupes and flunkies get off talking to us about what we owe the government?

    We don't owe the government a damn thing. They owe US.

  • SikFuk||

    "the Constitution provides for protection against the tyranny of the majority."

    If only that were still true...

    God it's good to hear from ya judge. They need to put you back on air!

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