“I firmly believe that what is driving the emotion at the town hall meetings is the feeling by the average American that the rule of law no longer prevails in our country. In other words, average Americans believe that in this age of corporate and individual greed and bail-out, those who don’t need a bail-out because they have lived virtuously and frugally are now paying the bills for the profligate.
The rule of law is at the core of a just and honorable society. The rule of law requires equal treatment of all. A President committing perjury, for instance, must be treated as all others committing perjury. Bondholders and creditors of a failing automobile company, for example, must not be denied money to which they are entitled under bankruptcy law because a union is favored by those in power. No class is favored over another, no exemption is granted, and the persons making the laws must conform to them as everyone else.
The rule of law presumes good order and transparent laws that are clearly worded and understandable by citizens. Few things bring more discredit to our system of government than Congressmen voting on a bill that has not been fully written, circulated, and debated. When the chair of a powerful congressional committee implies that he does not read certain congressional bills because they are too long and too complex, the legislative system is dysfunctional. When laws are so complex and pervasive that ordinary citizens are unsuspectingly violating these laws and are subject to prosecutorial whims, the system is evil. Few laws and restrictions, combined with clearly understood penalties, reduce the power of government and therefore increase individual freedom.
Finally, the rule of law works only if judges apply the law equally to all. A judge selected because of his/her empathy with a particular racial or ethnic group will, of course, favor that particular group. Such favoritism is directly contrary to the rule of law.
Without the rule of law, the cruelty of social Darwinism (survival of the fittest) is manifest. Political victory then becomes an opportunity to use the wealth of the nation to favor groups who supplied money and manpower for the victory. Such a spoils system is contemptible to average virtuous citizens who live the Golden Rule and pay their taxes while tax cheats are given positions of great influence. Average citizens are justifiably angry and frustrated if they view a powerful system as unfair and contemptible.”
James A. Davids, “Undermining the Rule of Law”, (31 August 2009; forthcoming on the RSG Op Ed page).
James A. Davids is Assistant Dean in the Robertson School of Government at Regent University where he teaches Government and Law.
Economic thought has been dominated from the beginning with an interest in the question of how authority is exercised, particularly as it related to the use of personal power (the Rule of Man) as contrasted to the application of impersonal power (the Rule of Law). It has always been understood that prosperity depends on good institutions in the broadest sense of the term, such as a government of limited purposes and power, respect for private property, and an independent and reliable legal system to enforce contracts and ensure fair competition in the marketplace. Key to this are a body of ex ante laws know to all and justified to all by their equal enforcement over the population without regard to circumstance or person, that is, the key is the Rule of Law. It has also been understood that a government too small to establish the rule of law and protect people and their property from both foreign and domestic enemies is as dangerous as a government so large and intrusive as to take away our liberties through the arbitrary use of power by individuals acting with partiality against our interests.
For the Rule of Law to prevail and contribute to our peace and prosperity each and every one of us has to have some degree of liberty from the arbitrary will of others that only the state can provide. In carrying out this fundamental responsibility no one and no group can have a privileged relationship to the state and its actions and decisions cannot be seen as favoring anyone, especially those charged with enforcement of the law. If the perception of favoritism gains currency, it weakens the political bonds among groups in society as they compete to protect themselves from what they regard as the predations of other groups that unfairly use the power of the state to advance their interests. In the case of the town hall meetings it is clear that many feel that the Rule of Law is being compromised and it is their interests and views that are being discriminated against by a government that is assuming unprecedented power to act in unprecedented ways.
In the area of economics, the Rule of Law is thought to bring a secure and predictable environment to economic activity and commercial decision-making, one which not only provides shelter from thieves and murderers but limits the predatory actions of unbounded political leaders. The mutual gains from market exchanges disappear without private property and freedom of private contract enforced by the state. Without those gains there is neither the efficiency that comes from competitive interactions in markets nor the economic growth that drives our level of living higher and higher. It is in this sense that the Rule of Law can be said to be the foundation on which our prosperity is build.
However, the Rule of Law is more fragile than commonly recognized. It breaks down when laws are passed without the consent of those who will be negatively affected by them, when citizens do not feel that the law has been just to them, when regulations become so numerous and so vague that it is impossible not to break them, when the state proves itself unwilling to protect its borders, when it provides greater protection to the criminal than the law-abiding citizen, when it become increasingly arbitrary and senseless, favoring the politically connected and discriminating against those without a voice, and most of all, when it is divorced from the lives lived by honest and hard-working people.
In other words, the Rule of Law breaks down when it no longer conforms to the needs, desires and aspirations of common and ordinary people.
One cannot help but feel that is it is this sense of alienation that fuels the unease reflected in the town hall meetings.
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