By Jeff Rutherford
I’m often tempted to try and devise a set of questions as a litmus test to reveal whether a person leans towards Conservatism or Progressivism. Here’s a candidate question for such an ideological litmus test:
Can a law be unlawful?
To elaborate the question: I’m talking about laws that are passed by a state or federal Legislature, following all procedural formalities, and signed by a Governor or President. Can such a law be unlawful?
What is your first impression? Is lawmaking just a procedural matter? If the majority of duly elected legislators approves a bill, and the executive branch’s leader signs it, is it a fully legitimate law?
Let me caution you: This question is not as superficial as you may think – nor should your answer be superficial.
The philosophical premise of the ‘American Experiment’ is that we are a free people, not subjugated under an illegitimate ruler.
So what makes a government action or law ‘legitimate’? This is a crucial idea, for if a law is not legitimate, then it is a ruler’s or ruling class’s mere will imposed on others – and they are consequently not a free people. The idea of ruling legitimacy comes from the Magna Carta – “The Great Charter.”
King John reluctantly signing the Magna Carta — 1215 AD
Initially called The Articles of the Barons, The Magna Carta was written by the Archbishop of Canterbury in 1215 in protest of King John’s despotism, agreed-to by a young King Henry III in 1217, and later integrated with English law in 1297. Its purpose was to limit the mere will of the King of England, as the English barons’ condition for allowing a king to rule peacefully without revolt or assassination. Its most monumental clause is the 39th, which said,
“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we [meaning the king’s forces] proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”
The 1215 charter has been called “the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot.” Clause 39 remains part of British law today, and its lineage flowed down to America’s Bill of Rights, in the 5th Amendment to our Constitution: “No person shall…be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” As a legal philosophy, these British and eventual American restrictions pertain to ALL activities of government, not just the actions of law enforcement agencies.
The Magna Carta – Latin for ‘The Great Charter’
Due Process of Law
Suppose, following all prescribed legislative procedures, the federal government passes a law cancelling all installment debt. Meaning all outstanding mortgage, credit card, car loan, and student loan debt. The law simply declares all such debt is gone. Phwit! Instantly wiped off the books. It’s easy to picture how the self-interests of the majority of citizens and even their elected representatives would personally gain. But is majority rule all that matters? Would this law be lawful?
Plainly not. It would strip the lenders of their contractual rights and their property. It would also destroy the future prosperity and economic progress of our society, as the financial tool called credit would disappear. The mere will of the majority would have been momentarily served by this unjust act, but at a disastrous long-term price.
It’s intuitively clear that this extreme example is NOT what was meant by ‘Due Process of Law’ in free societies. Simply following the procedural rules of lawmaking does not automatically make every resultant law legitimate.
So obviously there is a difference between the procedural steps of lawmaking and the reasoned legitimacy of lawmaking. This is what the Magna Carta’s 39th clause meant by “the law of the land.” The law of the land, or the rule of law, is not proclaimed simply in accordance to the whim of the rulers, democratically elected or not. The rulemakers must have rules to follow also. Not just procedural rules – but also ethical, moral, philosophical principles.
If a society is to be free from the whim of despotic rulers, the legitimacy of a government statute or other government action must depend on its adherence to some independent criteria, not just on the government’s overwhelming power to declare and enforce it. A fully functional free society must recognize that not all of the government’s acts are lawful just because they are government acts. It must establish criteria to tell lawful from unlawful government acts, and must establish processes of deliberating these distinctions, and correcting government transgressions. As James Madison wrote in The Federalist Papers #51:
“It may be a reflection on human nature that such devices [as Constitutional chains] should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? … If angels were to govern men, neither external nor internal controls on government would be necessary. [But lacking these angels,] in framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place oblige it to control itself.”
In the next article I will return to the question: What makes a government action or law ‘legitimate’ ? This question has become critically important in 21st century America. Unfortunately, far too few Americans have knowledge of or respect for this fundamental inheritance from the ‘Great Charter’ of Western civilization back in 1215.