Under the rule of law, all men are subject to the same set of rules.
This is what the luminaries of the 19th century referred to as liberalism. The point is, liberty is enhanced when those who enforce the rules are bound by the same rules that they enforce against others. It’s really quite simple.
The Constitution of the United States was written to codify this concept. It was intended to work with Blackstone’s publication of common law to ensure that one set of rules applied to everyone.
A crucial aspect of this concept is that the laws must be enforced evenly. In order to ensure that the rules are enforced evenly, the enforcement agency necessarily has limited discretion in the enforcement. The beat cop has to arrest the burglar, regardless of how he’s dressed or who his father is.
This appeals to our sense of fairness, doesn’t it? We all agree that if someone breaks into our home in the middle of the night, they should be subject to the same sort of punishment no matter who they may be or who they might know.
This, very simply, is equality before the law. If you break the law, there will be defined and predictable consequences, whether you’re wealthy or poor, famous or unknown, beautiful or plain.
This is the essence of the American legal system.
Well, anyway, it was once upon a time. There have always been attempts to bend the rules, and traffic cops have a huge amount of latitude in the application of speeding laws. Realistically, we probably don’t want to remove all discretion from those at the sharp end of the spear. By and large, our police do a most excellent job of maintaining order under what frequently are trying circumstances. I think most of us have at some point seen a policeman who was much more courteous than the situation seemed to call for.
We have today an entirely different circumstance.
Every law in this country is, theoretically, enacted by the due authority of the legislature and within the limits set by the Constitution. The executive branch of the government has the responsibility to enforce these laws. This is the very foundation of our nation.
What I’m about to say may seem critical of our current situation. It truly is, but supporters of the current administration will correctly observe that this administration didn’t start it, that it was nearly the same under the last administration. They’re right… and horribly mistaken to support it.
You see, the administration has the responsibility to enforce our immigration laws. Congress has the authority to define the policies regarding who is allowed to enter the country, and under what circumstances. The administration simply has the responsibility to enforce those rules; they do not have authority to decide not to enforce them.
Given the number of “undocumented workers” in this country, we must conclude that the administration has chosen not to enforce these laws. This is, unequivocally, a crime.
Congress has assumed the authority to determine under what circumstances we may purchase firearms. While this is not clearly within their purview, they have elected to deny this right to convicted felons and those who are not legal residents of the United States. We’ve been hearing over the last few weeks that our government has intentionally allowed felons and illegal aliens to buy firearms. This is a crime under the current statutes.
Congress has denied the EPA the authority to control streams that are not “navigable” – which authority, by the way, isn’t clearly theirs to grant, but it’s certainly within their charter to deny an administrative agency such authority. The EPA has announced plans to proceed with regulation anyway. This is a crime.
The War Powers Act that authorizes the President to deploy military force for up to 60 days at his discretion isn’t clearly according to the Constitution, but it is clear that the President can’t exceed the authority granted by Congress, yet not only are we applying force to Libya with our military, we’ve been doing so for well beyond the 60 days the law calls for. This is a crime.
The Transportation Safety Agency is an organization whose very existence is not authorized by the Constitution. The existence of the agency isn’t necessarily a crime. The ongoing violation of the Fourth Amendment that their peek, prod, and grope policies represent is, however.
It isn’t just the current Administration, either.
Our duly elected representatives have used their authority to borrow money on our behalf. They have that legitimate authority. However, the bulk of what they’ve spent the money on over the years is not within their authority. This gargantuan theft from future generations constitutes a continuing criminal enterprise, and under federal law that makes those responsible liable for some rather stiff penalties, and the guilty include every Senator, Representative, and President who signed off on these extra-Constitutional measures. The number of repeat offenders is incredibly large, going back more than a century. The sheer scale of the theft is beyond human comprehension, and that brings us back to the original point.
We were a nation under the rule of law. We have now been saddled with so many regulatory agencies with competing agendas that we can no longer predict whether we are in compliance with the rules. This is bad enough, but we haven’t yet begun to see the effects from the huge number of new federal agencies created under last year’s health care bill (and a few other bills along the way). The web of rules being created can only have the purpose of ensuring that none of us is ever in compliance with all of the rules. This can only be dealt with by giving those in authority the discretion to enforce the rules as they see fit.
Rule enforcement by discretion is the antithesis of rule of law.
It is, properly identified, tyranny.