The Rule Of Law
The Rule of Law
Presented at the University of San Diego Law School on 15 January 1976.
THE MEANING ATTACHED TO THE PHRASE “rule of law” is coming to be in practice the opposite of what traditionally we have understood by it. Traditionally, the ideal of the rule of law has been that all men were equal before the law, regardless of rank, position, race, religion, income, occupation, or any other characteristic; the law was blind. The ideal of the rule of law has precluded retroactive legislation, and it has precluded laws intended to burden or benefit some people differently from others in the same circumstances.
The term “rule of law” now is coming to mean that all activities and relations between people should be regulated by law. It is argued that in an interdependent society any action of an individual and any transaction between individuals necessarily affects other members of the society, so it is intolerable that there should be any activities or transactions that are not regulated by law. Since human beings cannot exist except in a society, and a society is by definition interdependent, it follows that “whatever is not compulsory should be prohibited.” This is coming to be the new meaning of “the rule of law”; instead of protecting freedom, the new rule of law annihilates freedom.
Possibly, as lawyers, you welcome this reversal of the concept of the rule of law, for it is creating a huge market for lawyers. But I do you the honor of presuming that you do not welcome it, that it distresses you as much as it does me.
Can we cure what Walter Lippmann called “the sickness of an overgoverned society,” or at least slow its advance? Public opinion polls, the pronouncements of new governors from California to New York, editorials in traditionally liberal newspapers, and many other signs suggest that there is a deep and pervasive mood in the land that yearns for relief from the sickness of overgovernment that is manifested in the perverted meaning of the rule of law.
But what of the political institutions through which such relief would have to come? Are they capable of bringing it about, even if a considerable majority of the people want it? I have grave doubts that our political institutions have that capability. The reason for my doubts is that our system of government is one in which minorities rule. It is possible for any individual to gain enormously if he can harness the coercive powers of government for his particular advantage, perhaps through funds to support his industry or profession, perhaps through giving him cheap loans, perhaps through increasing some welfare program such as Social Security, perhaps through protecting him from competition, perhaps through tax advantages.
If even a small percentage of the voters in a congressional or legislative district share a common interest that can be served through the coercive powers of the government, and if they will vote for or against a candidate almost solely on the basis of his stand on the issue of overriding importance to them, most candidates will have to support this interest or be replaced by someone who will. Most congressmen could not win if, for example, a bloc much above five percent of their supporters were to shift to their opponents.
When a legislature made up of members elected under these conditions convenes, it is probable that no single law could get a majority vote. As the legislators get down to work, groups in favor of one measure or another will attempt to find other groups with whom they can form coalitions, each group agreeing to support the other group’s pet measure in return for support of its own pet measure. As the legislative session progresses, gradually some measures will command majorities and be enacted. Professor William Riker, of the University of Rochester’s Political Science Department, has pointed out that, at the end of such a legislative session, it is quite likely that almost every legislator and most of the public would prefer that all the legislation of that session be wiped off the books. This is because the cumulative effects of the many measures benefiting others probably will offset the effects of the few measures benefiting any one person. Yet our political processes are such that at each session a good many laws inevitably will be passed.
The only effective protection against this, if representative government is to be preserved, is a series of self-denying ordinances, by which it is agreed that certain areas simply are not subject to legislative action. For, as Walter Lippmann said, the attempt to legislate in these areas “multiplies the number of separate self-conscious appetites,” thus leading to an unstable and ultimately self-defeating situation.
Such self-denying ordinances are, of course, exactly what the founding fathers attempted to achieve when they wrote the Constitution of the United States. They specified certain powers for the Federal government, and prohibited it from doing anything else. But with the passage of time a series of measures, each seeming good and proper at the moment, have eroded the proscriptions until today it is difficult to name an area which the Federal government does not regulate.
Perhaps I seem to be saying that our sickness of over-government cannot be cured. Perhaps I am saying that. But if I am, I am saying it as a challenge to your generation. When I was your age, I really believed that the impossible merely takes a little longer. I hope that Lippmann was wrong when he wrote that “men may have to pass through a terrible ordeal before they find again the central truths they have forgotten.” But I have no doubt that he was right when he said that “they will find them again, as they have so often found them again in other ages of reaction.”
This excerpt is from pgs 32-34 of “An Overgoverned Society” by W. Allen Wallis, The University of Rochester, Copyright 1976 by The Free Press, A Division of MacMillan Publishing Co. Inc., 866 Third Avenue, New York, N.Y., 10022
Library of Congress Catalog Number: 76-14390