High toned discussions of the American legal system almost always hinge on the phrase "the rule of law." Lawyers wield the phrase like a cudgel. But what does it mean?
Generally we accept it to mean that the rule of law protects men from rule by the whims of other men. How exactly does that work?
All discussions of law must begin with one fact, of which there can be no misunderstanding: all government action is impossible without force. Many choose to believe otherwise, thinking that the guidance of the law is sufficient to the wise, but everyone would ignore some law were all laws not based on the threat of real force.
In a civil society, the government can only exercise force by law, so that executive power is limited unless the legislative power first enacts something resembling the executive's whim. Thus, the executive of a civil government ought not seek to force individuals to act or cease to act in accordance with its will, unless it can find something in a legislative enactment authorizing that force. Nevertheless, many do.
In such cases individual liberty may still be protected by appeal to a judicial power to stay the executive's unjust interpretation of the law.
Similarly, the legislative and executive power ought not seek to impose their will by the passage of laws in contradiction of the constitution chartering their government. Nevertheless, it often happens.
In these cases individual liberty may still be protected by appeal to a judicial power to stay the other branches' unjust interpretation of the constitution.
Thus legislative and judicial procedure certainly do slow down the rule of executive whims, interposing between the whim and its enforcement an interval of time and a mechanism by which those potentially disadvantaged by the whim of others can mount their defense against it. If the executive is willing to be ruled by adverse legislative or judicial decisions, then individual liberty may be preserved longer than the duration of the procedure.
However, without judges willing to order their proper interpretation, and without executives willing to accept the judiciary's rulings, laws and constitutions are surely no more than dead words on paper. As judges and officials are men, to be ruled by law instead of men is an impossibility. Judges interpret law and even build their own law within it, when, as they say, they "construe" its meaning. Worse, officials and judges aren't angels, they're partisans all, and players in the political game.
Does the rule of law protect men from the being ruled by the whims of other men? Yes, but only for a little while, and only so long as judges take seriously their responsibility to protect individuals from the execution of government power. When the judiciary ceases to view its government's laws and constitution literally and begins to interpret them in favor of the exercise of government power instead of the exercise of individual liberty, has not tyranny arrived?
What protection then does individual liberty have from depredation by a power-seeking executive, a co-dependent legislature, and a partner-in-crime judiciary?
As force is essential to government, the rule of law is essential to the greatest possible individual liberty, and those whose acquiescence to the rule of law is most important are those with the power to make, execute, and apply the law. So, clearly, it is better to be ruled by men who believe in the rule of law than by those don't. It is thus essential to individual liberty that those who are elected and appointed to positions of power, whether legislative, executive, or judicial, are believers in the restriction of their power by the rule of law.
It falls then to we who believe in individual liberty and hence, smaller and less powerful government, to actively participate in the political process to safeguard it from villains who would be tyrants, petty or grand.
Even under the rule of law, the price of liberty is eternal vigilance.
