Examples of government officials literally throwing out the rule of law seem to be on the rise. This is happening in increasingly blatant ways and in a whole host of different jurisdictions. For instance:
* We see the governors and attorney generals of states like California and Virginia refusing to defend duly enacted laws, and even parts of their state’s constitutions, based on their own personal viewpoints. Their job is to advocate for their state’s laws. Not doing so is, literally, lawless.
* We see the president consciously choosing which laws he wants to enforce and, by fiat, changing laws which don’t suit him with “his pen and cell phone.”
* We see unelected government bureaucrats making and changing duly enacted laws by writing rules which either nullify or counteract them.
* We see judges, some elected and some not, making legal pronouncements and interpretations which clearly have no basis in the constitution or in statutory law – that is, based on their own personal beliefs and philosophy.
So, is this really a problem? Do these various government officials have the right to operate in this way? Is this widespread enough to cause concern in the culture? Traditionally, in the American governmental system, this kind of relativism has no place. As such, it is cause for great concern.
The American legal tradition was built on the concept that there exists an established, absolute order which is the bottom line authority. That authority is the constitution. Every statute enacted by legislative bodies and rules created by bureaucrats must, by definition, somehow conform to the principles contained in the constitution. Any law or rule which does not is considered unconstitutional and is thrown out as illegal. The basis for making these determinations is the original intent of those who established the laws.
So, we have a system based on an ultimate authority source, with lesser laws and rules which must conform to it. Unless this formula is followed, the American system of government will, literally, fall apart. America was established to be a nation of laws, not a nation of men. When governmental leaders begin to ignore this principle, the equation becomes inverted and we become a nation of men. When that happens, the only ultimate rule becomes the law of the jungle.
This takes us directly to the concept of authority sources. By what authority are we to obey the law? This is where an understanding of Naturalism and Christian Theism come into play. It is these worldview categories which provide us with an understanding of the conflicting authority source possibilities which are now at play in American culture.
So Where Did this Idea of the Rule of Law Come From?
To understand the foundation of the American system, it is necessary to grasp why the concept of an authoritative constitution even exists. It is based on the belief that there exists such a thing as absolutes. As the original beliefs which make up this foundation were based on Christian Theism, this is where we must look for our understanding.
In the Christian faith, there is a belief in God who is the ultimate source of all truth. It is believed that this ultimate truth resides in God himself and that he revealed it in an authoritative way in the Bible. As such, the Bible is looked to as an absolute authority to be followed by humanity.
While a constitution is not considered absolute in the same sense as is the Bible, the notion that there can be an absolute, bottom line, authority upon which to build a governmental structure derives from this understanding. So, a constitution was written which was viewed to be the absolute authority upon which all other laws and rules would be built, and by which they would be measured. As the constitution is a man-made document, it is recognized that it can be changed by due process. But until that due process is carried out, the law cannot be violated. And even the changes must be based on the guidelines stated in the absolute authority itself. Thus, the law is understood to be the ultimate authority for government, just as God’s law is the ultimate authority for the faith and practice of humanity in general.
Then along Came Naturalism
Over the last century or so, the naturalistic worldview has become increasingly prominent in American culture. In fact, it now dominates all of the major institutions of society. Naturalism is the belief that there is no such thing as a supernatural reality – that is, there is no God to give man any moral guidance. Based on this belief, human beings must create their own morality.
In the arena of law, this means there is no such thing as any kind of transcendent, ultimate or final authority source. If human beings create some system that they want to use as the basis for a legal system, that is fine. But it is understood that this foundation is strictly a man-made construct. It is also subject to change according to the desires of those who hold the reigns of power, not according to the laws themselves.
The underlying foundation of a naturalistic understanding of law is relativism. Since there is no absolute authority in existence, every law exists relative to the whims or desires of the humans who make and interpret them. Thus, even a constitutional document is “interpretable” based on the beliefs of those with the power to do interpretation. The idea of a document based on absolute principles or original intent is not part of the equation.
Based on this naturalistic approach, it is easy to see why many modern politicians, bureaucrats, and judges have no problem redefining, reinterpreting, ignoring, or even inventing their own law, if they can get away with it. They simply don’t consider it something with an absolute foundation.
The Rule of Law or the Rule of Men
The choice the nation makes concerning the basis of law affects literally every part of life. This is not, though, merely an intellectual choice. It is about which worldview foundation (what understanding of reality) the nation will choose to live by. It will determine whether we will have a culture based on individual freedom or collective control. It influences whether the legal basis for the culture will be stable or change with every new political administration. It determines whether we will live in a society governed by the law of love or the law of the jungle.
America became a unique and special country in large part based on the application of the concept of the rule of law. If this is allowed to be set aside, lawlessness will rule. In fact, we are already beginning to see the results of this kind of thinking as conscience rights are being trampled, family structures are being reorganized, and Christians are being run out of business – all based on the “reinterpretation” of laws by those in power who do so on the basis of naturalistic relativism.
As those in political leadership continue to operate based on a relativistic understanding of law, it is literally changing the fabric of the nation. It is moving us from an understanding which provides stability and certainty, to one which is based on the whims of whoever can grab the reigns of power at any given moment. It moves us from a nation of laws to a nation of men.
Make no mistake, whichever approach comes out on top will affect our posterity. It will affect whether we live as free individuals or as subjects of a ruling class. Much damage has already been done to the concept of the rule of law. Reversing the trend will require people of principle stepping into political leadership to reverse the trend. But this will be difficult to do. Already the momentum is going the other way, and those who inherit the positions of leadership will not only have to buck their own desires, but will also have to overcome the efforts of those who have already stepped into power and don’t want to give it up.
Reversing the trend will require people of principle to make deliberate, intentional choices to reinstate the rule of law. Are there enough people like this available to step into those positions? Does the voting citizenry care enough to study the candidates, then get out and vote based on this principle? Only time will tell.
© 2014 Freddy Davis