25 March 2011

The demise of the rule of law

After the U.S. and other nations attacked Libya this past weekend, I posted a portion of one of Laurence Vance's recent blog posts as my Facebook status:
But to American soldiers I would say this: Is there any country you won’t attack? Is there any order you won’t obey? Without a declaration of war or even a congressional authorization, you are just acting as the president’s personal army.
Having broken the first rule of American politics—never criticize the military—I expected a swift and vitriolic reaction to those words. Much to my surprise, none ever materialized. However, I did have to further explain that the purpose of those words, as I understood them, was not necessarily to criticize the military. While the question/statement does call into question the military oaths of enlistment/office, it was intended primarily to draw attention to the President's having sent troops to war without congressional authorization.

This, to me, was a clear violation of Article 1, Section 8 of the U.S Constitution which grants the Congress the power to declare war. It turns out that I wasn't alone in thinking that. Presidential hopeful Barack Obama, in 2007, when asked about the President's authority to send troops into action without congressional authorization said the following:
The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.
Since U.S. military involvement in Libya began, the President, via his staff, has gone to great lengths to assure lawmakers and the public that the U.S. is not at war. No less than Defense Secretary Robert Gates seems to disagree, and while he stopped short of using the phrase "act of war", others have not been so reserved in their descriptions of the actions. In fact, the President himself, who now believes he does not need congressional authorization, still took the step of notifying the Congress of military action, "consistent with the War Powers Resolution", anyway. (Wikipedia explains that the use of "consistent" instead of "pursuant" is because Presidents are loathe to recognize limits on their ability to wage war. The word "pursuant" implies that the President recognizes Congress's limit on his office. "Consistent" implies only that the President is following the law, not that he recognizes its legitimacy.)

It's curious, to say the least, that the President felt compelled to notify the Congress while, at the same time, arguing the U.S. isn't at war. Nevertheless, it would seem that the President has placed himself (back) within the law... such as it is. The question of whether or not the President has the power to send the military into action without congressional authorization is still ambiguous, at best, though. When exactly can the President wage war? According to James Madison's notes taken during the Constitutional Convention, the framers intended the President to have the authority to use the military without congressional authorization only in one specific case. During the convention, the legislative branch's power to "make" war was changed to "declare" war for the purpose of "leaving to the Executive the power to repel sudden attacks". However, since Libya did not attack the U.S., nor was it even threatening to do so, it would seem that the President's action is illegal, even considering his notification to Congress.

So, what about the U.N. Charter to which the U.S. is a signatory? On March 17th, 2011, the Security Council adopted Resolution 1973 authorizing a no-fly zone over Libya, and Chapter 7 of the charter allows the Security Council to act with force to enforce its resolutions. Thus, the President claims he is "acting under a mandate issued by the United Nations Security Council" which is binding on the U.S. presumably under Article 6, Paragraph 2 of the U.S. Constitution which gives treaties made by the federal government the force of law. There are two problems with this claim. First, Chapter 1, Article 2, Paragraph 7, of the U.N. Charter specifically prohibits U.N. involvement in "matters which are essentially within the domestic jurisdiction of any state", e.g. civil wars. (Some might argue that the text that follows, "this principle shall not prejudice the application of enforcement measures under Chapter VII" allows for the actions now taking place. I disagree for two reasons: 1) not prejudicing the application of enforcement measures is not the same as allowing enforcement measures in violation of the preceding "principle", and 2) if my first reason is incorrect, then the second half of the paragraph contradicts, essentially nullifying, the first which makes no sense since the section would basically then read "the U.N. has no jurisdiction in domestic affairs unless it does".) The second problem with the President's claim is that Article 6, Paragraph 2 of the U.S. Constitution declares that the Constitution is the supreme authority when it and a treaty made pursuant to it are in conflict. That is, the President's authority to use the U.S. military cannot be increased by any treaty beyond what the Constitution allows.

It should be clear now why the President is working so hard to portray the U.S. involvement in Libya as anything but a war. Based on notes taken during the Constitutional Convention, it is plain that the framers never intended for the executive branch of the U.S. government to have unilateral authority to send the military into action except when timely consultation with Congress was infeasible due to a sudden, unforeseen attack. Since many (but not President Obama as evidenced by his own words in 2007) have forgotten this intent of the framers, President Obama is focusing on this (not) being a war in order to deflect any accusations of usurpation of Congress's authority. Much like the use of "consistent" vs. "pursuant", the meaning of "torture" vs. "enhanced interrogation", and the meaning of "is", the debate will revolve around what exactly constitutes "war". Ultimately government lawyers (the Supreme Court, if the debate ever reaches that level) will decide what "war" is. No longer is the U.S. government subject to the rule of law.

The rule of law is, in part, the idea that no person is above the law. This is in contrast to "ancient" times when the king or ruler of a nation or people was him or herself the law and, in many cases, above or not subject to it. When this nation was founded, Thomas Jefferson wrote in the Declaration of Independence that "all men are created equal", and it is this idea that gives rise to the notion that all people, therefore, should be subject to the same laws. Other writers at the time also argued for this idea. Thomas Paine, in Common Sense, wrote that "in America, the law is king" in reference/contrast to earlier ideas that the king was the law. The Massachusetts Constitution also contains this ideal, using the phrase "government of laws and not of men".

In order for the law to be king, however, it must "possess the characteristics of [...] certainty". And this is where the problem lies. The law is (no longer) certain. Can the government listen to your phone calls without a warrant? Can it see you naked when you try to board an airplane? Can it abridge your right to free association as it is attempting in Wisconsin, among other places? Can it force you to buy healthcare? Can it imprison you indefinitely without trial? Not only are existing laws not certain, but new ones are constantly being added. It has been estimated that "the average busy professional commits three felonies every day", and the government, via its police forces, decides, on its own, which crimes to prosecute and which to ignore. And in cases where the law is unclear, a government lawyer will twist the words of the law to suit his or her purposes, or the case will ultimately end up in front of a judge, employed by the government.

In this way, we are no longer a nation of laws, but of men. The government decides what the law is and when to enforce it. In the case of the federal government, it has become the arbiter of its own power, in contrast to the tenth amendment to the U.S. Constitution. There used to be a fairly well organized and loud opposition to this violation of the rule of law. During the (George W.) Bush administration, the political left was up in arms about the President's usurpation of power. It was constantly demonstrating against his "illegal" war in Iraq. It wanted him to pull troops out of Afghanistan. Now that a Democrat is in the White House, though, opposition to those wars, as well as the current one in Libya, has all but disappeared.

While small government types and libertarians (note the little 'L') continue to oppose war no matter who is in office, it would seem that they constitute a rather small portion of the population. Eric Posner, writing for the Volokh Conspiracy, agrees arguing that "[t]here is no constituency for reforming the executive". There do exist constituencies for limiting executive power when the "other team" is in power, but since the team occupying the White House changes rather frequently, each team ultimately gets to exercise the very powers that they railed against when they were out of power. Thus, no one is really interested in reforming the executive branch, itself.

Posner continues:
arguing that we should return to the original Madisonian design is tilting at windmills [...] these arguments are on the fringes—not because they violate the rules of logic but because they have no constituency—and that is where the Madisonian argument belongs as well.
[...] Arguing that our current system of government is unconstitutional is like arguing that the original Constitution was unconstitutional because it violated the amendment procedures of the Articles of Confederation. It is a logical argument that makes no difference in the real world because ultimately what matters is popular sentiment [...].
I can't tell you how dismaying it was for me to hear, correct as it may be, that arguments for a return or adherence to Madisonian design, that the people should be ruled by laws and not men, are on the fringe, but there you have it. The rule of law is dead.


  1. This ties in nicely with your "Why Democracy" blogs:

    "arguing that we should return to the original Madisonian design is tilting at windmills [...] these arguments are on the fringes—not because they violate the rules of logic but because they have no constituency—and that is where the Madisonian argument belongs as well."

    It's not about law, and it's not about right and wrong; it's about constituency!
    Now that's the basis of purely democratic government...

  2. John:

    Great column laying out the problem.

    The loss of the 'rule of Law' can be disheartening.

    I think we must trace the why behind the rejection of Law as the organizing Principle of society, to gain a view of the solution.

    The comment above hints at it - one of the flaws of total democracy is the co-commitant idea that Truth, in such a situation, becomes completely subjective to the individual. Shared Truth between individuals would form the basis for Law, would it not ?

    Far wiser critics that I have pointed out that Postmodern standards negate the possibility of an Objective Truth being affirmed in our day, by a society that is built upon such premises.

    I appreciate your cites of our Organic history to make your points. There are many points of emphasis that made up the 'atmosphere' that James Madison, and the Founders breathed, that we have yet to uncover, and thus we are the poorer.

    You asked for bevity, and I am happy to oblige. The wife and children have dinner ready -- but I do leave you with that as a question / comment.

    I'm curious to see your angle on this.

    Pro Veritas,

    David Alan

  3. @David: Your comment is headed out into the land of the philosophical which, admittedly, is a bit beyond me. I would agree that "Shared Truth between individuals would form the basis for Law", but I would continue that this does not prevent us from constructing Law from the least common denominator(s). For example, many libertarians will leave it at "no one may initiate or threaten force against another". I think you'd hard pressed to find someone to disagree with that principle, on its face.

    Under this principle, people are left with a multitude of negative rights. That is, they have the right not to be interfered with by another. This gives rise to freedom of speech, the right to bear arms, the right to privacy, etc. On the contrary, our current system has led to positive rights: the right to social security, health care, minimum wage, education, etc. These are "good" things, but they violate the original principle against force or the threat of it as all of these things impose a cost on someone else against his/her will.

  4. I very much appreciate and agree with the spirit of your article, but the libertarian legal scholar John Hasnas argues that the rule of law has always been a myth (this is one of my favorite articles of all time): http://faculty.msb.edu/hasnasj/GTWebSite/MythWeb.htm

  5. @Larry: Thanks for the link. It was very interesting and informative. You'll probably see me referencing that article in my future writing.

  6. Roger that.

    The Pentagon controls its slaves by mind control (lying). All soldiers are taught the Uniform Code of Military Justice in Basic Training, that requires all soldiers to ignore and disobey illegal orders, and to file ("prefer") criminal charges against their supervisors and commanders. However, as an instructor at an NCO Academy admitted, "We don't actually expect anyone to listen to us and do that -- that would be suicide!"

    I personally was involved in Operation El Dorado Canyon in 1986, where US Air Force bombed Libya and Qaddafi's house murdering his daughter and 40 other innocent civilians as they slept in their beds. We were told it was a "NATO exercise", then saw BBC TV shoving a camera in some woman's splattered brains on the sidewalk, before driving to work to download the returning F111's. One F111 was shot down, 2 pilots killed.

    This unprovided First Strike sneak attack from England (HQ of the 53-nation British Empire, a/k/a NWO, that attacked USA in 1776 and burned down the White House in the War of 1812) was "justified" by a false-flag covert radio broadcast by Israeli Mossad in Tripoli, Libya.

    However, hours before USAF, USN and RAF jets bombed Qaddafi's house, US Special Forces rescued Qaddafi and any visiting dignitaries, "to prevent an international incident in case a visiting dignitary was killed." This is according to Master Gunnery Sgt Dr Stoney Merriman PhD, Chief of Public Affairs for the US Marine Corps at the Pentagon, and editor of the newspaper in Al Gore's hometown of Carthage TN. "You wouldn't believe what really goes on at the Pentagon," Dr Merriman said. Then he died of a sudden brain tumor...

    I'm confident the current War on Libya is also a Wag the Dog and Pony Show. Especially since AllCIAduh is now officially running the Rebel Alliance in Libya. Seems Qaddafi nationalized his nation's sweet crude oil last November. No wonder the Libyans rebelled against 10-cent-a-gallon gasoline...

    "Those who fail to learn from history are doomed to repeat it."
    -Famous Old Dead Guy

  7. Johnny:

    In my earlier comment I didn't mean to wax too philosophical.

    America's founding Fathers, and their forebears, had been through incredibly long & arduous struggles against tyrants, in both church & state realms, and had developed some Principles that established the rule of Law as never before.

    These Principles formed the foundation for men like Madison, Jefferson, Washington & Witherspoon, who then assumed them when writing the Constitution / Declaration of Independence, and paid for them in blood fighting against King George III.

    The Founders would have been intimately familiar with was the seminal volume "Lex Rex", translated, meaning: "The Law is King".

    This principle was a 180 degree turn-around of the prior assumed doctrine of "Rex Lex" which held the king to be a divinely approved, unquestionable authority.

    In short, the idea of the 'Rule of Law' was given a quantum leap forward with the refutation of the 'Rex Lex' doctrine.

    Why mention this ?

    Too many Americans today exhibit blind loyalty to mere men, seldom asking:

    Where does authority reside ? From what source does it spring ? What, if any, are the limits upon it ? How are they enforced ?

    There would seem to be two opposing Principles of thought:

    1) If authority is from men, alone, then powerful men answer to no higher power & will be our undoing, for they will twist the law to their gain & our loss.

    Americans now think this way, and thus allow authorities to falsely assume & exercise delegated powers, like, say, "ordering a private army to attack another nation", absent Just cause & constitutional warrant.

    The contrary view:

    2) If authority comes from God, but is administered thru men, then this would prescribe Law, boundaries of authority and checks & balances by 'other spheres of authority'.

    It was this position the Jefferson cited, in the Declaration, holding that all men are subject to "the Law's of Nature & the Law's of Nature's God."

    [Contrary to popular assumption, Jefferson hardly appears hostile to the idea of Biblical principles, else why should he cite "Natural & Divine Law" in such a way ?]

    The first principle is, in essence, the assertion of naked power, be it given a Divine source (16th century & earlier) or a Humanist source (Enlightenment - today).

    Johnny, I think we struggle against a revival of the doctrine of 'Rex Lex', in our day.

    Your column got me thinking:

    If we've got a correct analysis going here, then the antidote should involve, in part, a renewed understanding & appreciation of the Principles of "Lex Rex".

    Here is a link for the document, they've laid out the main questions at the head:


    PDF download here:


    This is also why I'm a strong Ron Paul supporter - he's the one man grasps the concepts of 'Lex Rex'.

    I know this comment went kind of long - and I appreciate your kind attention.

    There is simply no way to be overly brief in this analysis.

    At my summer Law school, some of the lectures went on for hours explaining these matters.

    This is where I first heard 'Lex Rex' & it's impact upon the Founding Fathers philosophy of 'limited, delegated powers', which was a Foundation unique in the world to that point in history.

    As stated already:

    "Those who fail to learn from history are doomed to repeat it." - Famous Old Dead Guy

    Pro Veritas,

    David Alan

  8. John: This is off topic, but I thought you would find this piece from the Atlantic interesting in a discussion of police searches: http://www.theatlantic.com/technology/archive/2011/04/what-does-your-phone-know-about-you-more-than-you-think/237786/


Please be relevant, civil, and brief... in that order.