The United States is famously a nation of laws and not of men—or must we now say “persons”?—but what, exactly, does that mean? And, more important, is that still even true?
Rule of law, in its essence, is a concept as least as old as the Magna Carta, which celebrated its 800th anniversary this past year more in the breach than in the observance. According to this principle, the government and the people are governed by a knowable and predictable set of written principles that apply equally to everyone within the jurisdiction of the government. Only if those principles are knowable and predictable can people optimally organize their affairs to pursue happiness.
Under this broad understanding of the rule of law, how laws are made is in theory less important than the principle that the laws uniformly apply to all. But under the United States Constitution, it is equally important that laws be made by legislatures responsible to and elected by the people at the federal, state, and local levels.
Article I, Section 1, of the Constitution explicitly vests all legislative power granted to the national government in the Congress, consisting of the Senate and the House of Representatives. Article IV, Section 4, guarantees to every state in the union a republican form of government: that is to say, a government of laws and not of men.
How far we have strayed from this principle is apparent almost every day in nearly every way, in the civil as well as the criminal spheres of law.
In an area that straddles both, the President of the United States refuses faithfully to execute the immigration laws as they are written and enacted by the Congress, in express derogation of the will of the people. More egregiously, the Justice Department of the Executive Branch actually sues state governments—the republican form of which the Constitution purportedly guarantees—to prevent states from enforcing the very immigration laws the Executive Branch willfully refuses to enforce. The courts in turn uphold all this as a matter of executive “discretion.”
Even worse, when not deferring to the Executive, the courts—in particular the Supreme Court—act as mini-legislatures. Rather than limit their rulings to the legal issues in the specific cases before them, they routinely and undemocratically decide broad matters of public policy. The most recent and notorious examples of this are of course the two “Obamacare” cases—Sebelius and King v. Burwell—and the Obergefell same-sex marriage case.
In Sebelius, a clearly conflicted Chief Justice Roberts went out of his way to re-write the “individual mandate” of the Affordable Care Act as a “tax” within the power of Congress to impose, even though a majority of justices agreed that the mandate exceeded the powers of Congress under both the commerce and the “necessary and proper” clauses.
In King v. Burwell, the same Chief Justice ignored the plain language and intent of the statute and invented an ambiguity to enable misconstruing “Exchange established by the State” to mean “Exchange established by the State or the Federal Government.”
Even worse from a rule of law standpoint was Obergefell, which brutally usurped the will of the people of 39 states and violated both vertical and horizontal separation of powers by legislating from the federal bench in an area—marriage law—that the Tenth Amendment plainly leaves to the states and to the people. (Whether the Court made a “good” or a “bad” policy choice is immaterial to the rule of law.)
More fundamentally, the continuing growth of the administrative state has put lawmaking—both civil and criminal—in the hands of an unelected and largely unappointed (and therefore un-confirmed by the Senate) body of career civil servants who are not even minimally responsible to the electorate. The resulting maze of regulatory burdens has the force of law while lacking its legitimacy.
A fundamental tenet of the rule of law is that citizens must be able to ascertain what the law is in order that they may follow it (or willfully choose not to as an act of civil disobedience). Yet that has become increasingly difficult, if not impossible, especially in regulated industries like the financial and health care sectors. Egregiously, one can no longer even find a listing of all federal crimes in Title 18—the U. S. Criminal Code—because so many of them are buried in regulations promulgated by administrative agencies such as the SEC and the EPA. (Not for nothing does Harvey Silverglate say that most Americans could be found liable for Three Felonies a Day.)
A good recent example is the already-infamous “Yates Memo” Deputy Attorney General Sally Quillian Yates signed on September 9, 2015. “One of the most effective ways to combat corporate misconduct is by seeking accountability from the individuals who perpetrated the wrongdoing,” says Deputy Attorney General Yates. As an example of her department’s mission she cites “the many attorneys, agents, and support staff who have worked tirelessly on corporate investigations, particularly in the aftermath of the  financial crisis.”
Yet the 2008 financial crisis was not the result of “corporate wrongdoing,” although some wrongdoers may have ultimately profited. It was instead the predictable result of government regulators who, under the authority of the Community Reinvestment Act, forced financial institutions to lend money to poor people with lousy credit ratings who had absolutely no likelihood of ever being able to pay it back.
A nation in which the government can effectively yank any citizen’s chain without that citizen’s implicit consent by having had a vote on the governing law is no longer a nation of laws and not of men. And that may explain, in part, the increasing disdain and disrespect that Americans of disparate political stripes have begun to show for public institutions and the law.
The “Black Lives Matter” movement, for example, reflects at least in part the suspicion of many African-Americans that the criminal laws are not fairly and evenhandedly enforced, even at the local level. The sense that the Supreme Court has become a political rather than a judicial body has led to diminished respect for what may once have been our most revered governmental institution, to the point of civil disobedience. And, as widely noted, disgust with the political process in general may help explain the rise of such non-traditional Presidential candidates as physician Ben Carson and Carly Fiorina and Donald Trump, both business people with no prior governmental experience.
Benjamin Franklin once famously, if apocryphally, said that Founders in drafting the Constitution had given the nation “a republic, if you can keep it.” The further we stray from the rule of law, the less of a republic we become.