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April 9, 2014

Jonathan Tobin: Why Did Kerry Lie About Israeli Blame?

Samuel G. Freedman: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Jessica Ivins: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Kim Giles: Asking for help is not weakness

Kathy Kristof and Barbara Hoch Marcus: 7 Great Growth Israeli Stocks

Matthew Mientka: How Beans, Peas, And Chickpeas Cleanse Bad Cholesterol and Lowers Risk of Heart Disease

Sabrina Bachai: 5 At-Home Treatments For Headaches

The Kosher Gourmet by Daniel Neman Have yourself a matzo ball: The secrets bubby never told you and recipes she could have never imagined

April 8, 2014

Lori Nawyn: At Your Wit's End and Back: Finding Peace

Susan B. Garland and Rachel L. Sheedy: Strategies Married Couples Can Use to Boost Benefits

David Muhlbaum: Smart Tax Deductions Non-Itemizers Can Claim

Jill Weisenberger, M.S., R.D.N., C.D.E : Before You Lose Your Mental Edge

Dana Dovey: Coffee Drinkers Rejoice! Your Cup Of Joe Can Prevent Death From Liver Disease

Chris Weller: Electric 'Thinking Cap' Puts Your Brain Power Into High Gear

The Kosher Gourmet by Marlene Parrish A gift of hazelnuts keeps giving --- for a variety of nutty recipes: Entree, side, soup, dessert

April 4, 2014

Rabbi David Gutterman: The Word for Nothing Means Everything

Charles Krauthammer: Kerry's folly, Chapter 3

Amy Peterson: A life of love: How to build lasting relationships with your children

John Ericson: Older Women: Save Your Heart, Prevent Stroke Don't Drink Diet

John Ericson: Why 50 million Americans will still have spring allergies after taking meds

Cameron Huddleston: Best and Worst Buys of April 2014

Stacy Rapacon: Great Mutual Funds for Young Investors

Sarah Boesveld: Teacher keeps promise to mail thousands of former students letters written by their past selves

The Kosher Gourmet by Sharon Thompson Anyone can make a salad, you say. But can they make a great salad? (SECRETS, TESTED TECHNIQUES + 4 RECIPES, INCLUDING DRESSINGS)

April 2, 2014

Paul Greenberg: Death and joy in the spring

Dan Barry: Should South Carolina Jews be forced to maintain this chimney built by Germans serving the Nazis?

Mayra Bitsko: Save me! An alien took over my child's personality

Frank Clayton: Get happy: 20 scientifically proven happiness activities

Susan Scutti: It's Genetic! Obesity and the 'Carb Breakdown' Gene

Lecia Bushak: Why Hand Sanitizer May Actually Harm Your Health

Stacy Rapacon: Great Funds You Can Own for $500 or Less

Cameron Huddleston: 7 Ways to Save on Home Decor

The Kosher Gourmet by Steve Petusevsky Exploring ingredients as edible-stuffed containers (TWO RECIPES + TIPS & TECHINQUES)

Jewish World Review July 19, 2012/ 29 Tamuz, 5772

The Rule of Law

By Judge Andrew P. Napolitano



http://www.JewishWorldReview.com | The greatest distinguishing factor between countries in which there is some freedom and those where authoritarian governments manage personal behavior is the Rule of Law. The idea that the very laws that the government is charged with enforcing could restrain the government itself is uniquely Western and was accepted with near unanimity at the time of the creation of the American Republic. Without that concept underlying the exercise of governmental power, there is little hope for freedom.

The Rule of Law is a three-legged stool on which freedom sits. The first leg requires that all laws be enacted in advance of the behavior they seek to regulate and be crafted and promulgated in public by a legitimate authority. The goal of all laws must be the preservation of individual freedom. A law is not legitimate if it is written by an evil genius in secret or if it punishes behavior that was lawful when the behavior took place or if its goal is to solidify the strength of those in power. It also is not legitimate if it is written by the president instead of Congress.

The second leg is that no one is above the law and no one is beneath it. Thus, the law's restraints on force and fraud need to restrain everyone equally, and the law's protections against force and fraud must protect everyone equally. This leg removes from the discretion of those who enforce the law the ability to enforce it or to afford its protections selectively. This principle also requires that the law enforcers enforce the law against themselves. Of course, this was not always the case. In 1628, the British Parliament spent days debating the question "Is the king above the Rule of Law, or is the Rule of Law above the king?" Thankfully, the king lost — but only by 10 votes out of several hundred cast.



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The third leg of the Rule of Law requires that the structures that promulgate, enforce and interpret law be so fundamental — Congress writes the laws, the president enforces the laws, the courts interpret the laws — that they cannot be changed retroactively or overnight by the folks who administer them. Stated differently, this leg mandates that only a broad consensus can change the goals or values or structures used to implement the laws; they cannot be changed by atrophy or neglect or crisis.

The values in America are set forth in the Declaration of Independence, and the governmental structures in America are set forth in the Constitution. The former — that our rights are inalienable and come from our Creator and not from the government — is not merely a recitation of Thomas Jefferson's musings. The Declaration is the articulation of our values then and now, and it, too, is the law of the land.

The Constitution was written — largely by James Madison — to define and to limit the federal government, and it was quickly amended by adding the Bill of Rights so as to be sure that natural rights would be respected by the government. This tension between the power of the majority — at the ballot box or in Congress — and the rights of the minority — whether a discrete class of persons or a minority of one — is known as the Madisonian dilemma. Stated differently, the Constitution provides for protection against the tyranny of the majority.

In our system, the power to resolve the dilemma is reposed into the hands of the judiciary, and those who have that power are to resolve it without regard to popularity or politics. Their oath is to the Constitution. They have the final say on what the laws mean. If they follow the Rule of Law, they will invalidate that which the government has done and which is properly challenged before them and which is not authorized by the Constitution. Their very purpose is to be anti- democratic, lest the popular majority takes whatever lives, liberties or property it covets. In return for life tenure, we expect judicial modesty, and we demand constitutional fidelity — not political compromise.

In our era, the violations of the Rule of Law have become most troublesome when the government breaks its own laws. Prosecute Roger Clemens for lying to Congress? What about all the lies Congress tells? Prosecute John Edwards for cheating? What about all the cheating in Congress when it enacts laws it hasn't read? Bring the troops home from the Middle East? What about all the innocents killed secretly by the president using CIA drones? Can't find a way to justify Obamacare under the Constitution? Why not call it what its proponents insisted it isn't — a tax?

We live in perilous times. The president acts above the Rule of Law and fights his own wars. Congress acts below the Rule of Law by letting the president do whatever he can get away with. And this summer, the Supreme Court rewrote the Rule of Law.

What do we do about it?

Every weekday JewishWorldReview.com publishes what many in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here.

Your comments are appreciated. Please send them by clicking here.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the Senior Judicial Analyst at Fox News Channel and anchor of "FreedomWatch" on Fox Business Network.



Previously:


07/12/12 We Are at a Turning Point
07/03/12 A Vast New Federal Power
06/28/12 Restraining Arizona, Unleashing the President
06/21/12 Can the President Rewrite Federal Law?
06/15/12 Squealing Versus Killing
06/07/12 Where Is The Outrage?
05/31/12 The Secret Kill List
05/24/12 What If We Have Only Memories of Freedom?
05/17/12 Is There a Drone in Your Backyard?
05/10/12 What Constitutes a Fair Trial?
05/03/12 The President's Private War
04/26/12 Rick Perry Was Correct
04/19/12 A Government of Waste
04/12/12 What If the Government Rejects the Constitution?
03/29/12 Can the Government Force You To Eat Broccoli?
03/22/12 Is the CIA in Your Kitchen?
03/15/12 Can the Secret Service Tell You To Shut Up?
03/08/12 Can the President Kill You?
02/23/12 What If Democracy Is Bunk?
02/16/12 Time To Tame the Federal Beast
02/09/12 Do Catholics Have Too Many Babies?
02/02/12 What Is a Just War?
01/25/12 A Few Words About Abortion
01/20/12 How Much Economic Freedom Do We Have in the United States?
01/12/12 What If Elections Don't Matter?
01/05/12 Big Government Cannot Pay Its Bills, Again
12/29/11 The Case for Austerity
12/22/11 New Ideas or Fidelity to Old Principles?
12/15/11 The Government as Lawbreaker, Again
12/08/11 What if our rights didn't come from the Almighty or from our humanity, but from the government?
12/01/11 Can Congress Steal Your Constitutional Freedoms?
11/24/11 What if the Constitution No Longer Applied?
11/17/11 Congress and Secrecy
11/10/11 Does the Government Work for Us, or Do We Work for the Government?
11/03/11 Look at What the Government Has Done with Your Money
10/27/11 What Have the Wars Done for You?
10/20/11 Is Freedom in America a Myth or a Reality?


© 2012, ANDREW P. NAPOLITANO

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