• frank
    14.5k
    Is rule of law really possible? If there are fundamental disagreements about how the constitution should be read, doesn't that mean political parties ultimately rule?
  • James Riley
    2.9k
    There is a big difference between the way thing are and the way they are supposed to be (as laid out by our organic documents). At the end of the day, it's the Golden Rule: Those with the gold make the rules.

    Chief Justice John Marshal said something to the effect that "It is emphatically the province of this court to say what the law is." Marbury v Madison. So the court(s), not the political parties, are supposed to articulate the rule of law, and the executive is supposed to enforce it. The legislature makes laws and the court(s) decide if those laws are Constitutional. I know you know all this, but I reiterate it just in case people lose the idea of what the rule of law is supposed to be.

    Some will say Marshal pulled that out of his ass because it's not in the Constitution. But what else would courts do? Play golf? With life time appointments, they are supposed to be above money. Hmmmm.

    Get money out of politics ( :rofl: ) and the rule of law is possible. Good luck. In the mean time, we get lip service and a scrap now and then if it serves money's purposes.
  • tim wood
    8.7k
    If there are fundamental disagreements about how the constitution should be read,frank
    "Should." One of the great weasel words, of scoundrels and cowards. Although nothing wrong with the word itself in its proper use.
    An axiom of mine is that before resorting to "should," facts need to be ascertained. That is, before interpretation, one has to know what the words are and what they mean. And not just some of them, but all of them.

    For example, "Congress shall make no law...". And some people froth at the mouth at the suggestion that no law does not mean no law. But the Constitution as a whole provides authority as appropriate to protect the security both of the people and the government. Which means when rights conflict, one or more may have to yield. David Souter covers this in an entertaining speech here, worth the listen.
    https://www.youtube.com/watch?v=eCxaDwOCXD8&t=1229s

    But there are people who will try to persuade, and even insist, to borrow a quote, that a horse chestnut is a chestnut horse. And among their ways are "should" and spurious interpretation. We're living in a time when the danger such people present is high. Usually we play by the rules of civil discourse. They do not. If they break the rules, we need to be able to respond appropriately and in timely manner.
  • frank
    14.5k


    For Hayek, there's a big difference between legislation and law. Legislation is top down. It could come from an elected congress, from an oligarchy, or a dictator, but to the average person it's all the same.

    For Hayek, law is social norms that emerge spontaneously and need no government enforcement, like standing in line at the bank, and so forth.
  • baker
    5.6k
    Usually we play by the rules of civil discourse. They do not. If they break the rules, we need to be able to respond appropriately and in timely manner.tim wood

    How?

    Do iIllustrate this on an example of your choosing.
  • Ciceronianus
    2.9k
    My understanding is the rule of law refers to its equal application and enforcement as regards all persons and entities. I don't think the phrase is intended to refer to the quality of the laws, which are assumed to be good. The rule of law isn't "all laws must be good" in other words. It requires independent adjudication and enforcement.
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