May 17: Rule Of Law: Accountable, Not Arbitrary, In Regards To Representing The American People – Guest Essayist: Marc Clauson

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Rule of Law and Congress

The concept of a rule of law has been misunderstood throughout the history of political thought, and often ambiguous.[1]  In this essay I will define the concept, trace its development, then apply it to the American situation in its relationship to Congress.  In doing so, the fundamental idea of constitutionalism will become crucial to any understanding of an effective rule of law.[2]

In 1644, the English theologian and political thinker, Samuel Rutherford, published a book entitled Lex, Rex, which translated, means, “Law is King.”  The book was written during the English Civil War, which in part was fought over the issue of the power of the king (Charles I) in relation to the Parliament.  Charles had asserted his divine right, absolute, authority, though he also recognized a subordinate role for Parliament.  In other words, as most monarchs of that time believed, Charles essentially argued that he was above the law, even laws made by Parliament, since he sat in Parliament itself as its chief executive.[3]  In fact the dominant theory through most of the seventeenth century was absolute, divine right monarchy.  Legislative bodies therefore were at best the “loyal opposition” to monarchs in most cases until the English Civil War (1642-1649).  But during that War and again in and after the Glorious Revolution of 1688, the English Parliament came into its own as a force to be reckoned with, even the foremost branch of government, both in practice after 1688 and in theory, for example in John Locke’s Second Treatise of Government (1689).

But the question then remained for the “legislative,” as the powers of a legislative branch were labeled, is there a limit to the power of that branch?  Does it operate under a rule of law like a monarch?  Here we must define the concept.

One definition runs:

“The most important demand of the Rule of Law is that people in positions of authority should exercise their power within a constraining framework of well-established public norms rather than in an arbitrary, ad hoc, or purely discretionary manner on the basis of their own preferences or ideology. It insists that the government should operate within a framework of law in everything it does, and that it should be accountable through law when there is a suggestion of unauthorized action by those in power.”[4]

The essential idea is that no ruler or governing body is above the law, even those who actually make those laws.  The concept does not provide criteria for the content of laws, but it does require every citizen and governing official to abide by those laws if they are a part of the jurisdiction in which the particular laws are effective.  Other elements have been suggested to fill out the rule of law idea, including (1) Formal aspects: generality; publicity; prospectivity; intelligibility; consistency; practicability; stability; and congruence. These principles are formal, because they concern the form of the norms that are applied to our conduct; (2) Procedural aspects: impartial hearing, evidence presented, etc.; and (3) Substantive aspects, that is, the actual content of laws is considered part of the rule of law, for example, property rights.[5]  Most people would think that the procedural aspects are the heart of the rule of law, that is, the rule of law addresses a “fair procedure” without pre-determining an outcome.  In the case of Congress, while procedure is no doubt important, the Constitution itself is also vitally concerned with the content of laws—what Congress may do and, by implication (or directly in the Tenth Amendment), what it may not do.  At this point we move into the realm of constitutionalism as an aspect of the rule of law.  There are two ways in which the Constitution impinges on rule of law issues:

  1. By establishing rules for law making itself, that is, decision rules of various types (simple majority, 2/3 majority, etc.). These are important procedural norms designed for differing kinds of decisions that are associated with varying costs to citizens affected and for the laws themselves.[6]
  2. By ratifying Article Two, which, among other things, enumerates the specific powers of Congress, implying that these are the only powers, and thereby providing a limit to Congress’ powers.[7]

It may also be argued that the entire Constitutional structure implies that any law enacted by Congress also applies to its members and to any government official.  After all, a constitution, properly understood, is only alterable by the people and that would imply that it governs all officials as well as citizens generally.  Though such wording does not appear in the Constitution, it goes to the very heart of the rule of law.  Unfortunately, laws have not always been applied to members of Congress, as evidenced especially in recent years (for example, the Affordable Care Act of 2010).  Nevertheless, generally, Congress is bound by its own laws equally with any citizen.  Morally, there is no question as to the validity of that assertion.  Legally, we may also point to the checks and balances concept which is the constitutional method of enforcing the rule of law on Congress in terms of its powers (though it does not speak to the issue of Congressional self-exemption from laws).

In his Second Treatise of Government, John Locke, in discussing the “legislative” power, clearly states that all laws must be applicable to every citizen, even the rulers.[8]  Locke influenced the Founders, even during the constitution phase, though of course he was not the only important source.  Not only that, but the Founders were keenly aware of the writings in England that excoriated the corruption of the Parliament in the earlier 1700s and their own day.[9]  Finally, the Founders consciously designed a constitution that explicitly limited state power and provided incentives for virtuous behavior.  All these, but especially the idea of the rule of law were seen as applicable to Congress itself.  Without the concept in actual general practice, citizens would be subject to many abuses by governments simply because the governors would not themselves be subject to those same laws.  Given human nature as self-interested at the least, this could lead to an intolerable state, even one of tyranny.[10]  To the extent the rule of law is “institutionalized” the possibility of tyranny is minimized.

Marc A. Clauson is Professor of History, Law and Political Economy and Professor in Honors at Cedarville University. Marc holds a PhD from the University of the Orange Free State, SA, Intellectual History and Polity); JD (West Virginia University College of Law, Jurisprudence); MA, ThM (Liberty University, New Testament Studies and Church History); MA (Marshall University, Political Science); BS (Marshall University, Physics); and PhD work (West Virginia University, Economic Theory).

[1]   See Brian Tamanaha, On the Rule of Law: History, Politics, Theory.  Cambridge University, 2004.

[2]   On this topic more generally, see Ellis Sandoz, editor, The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo-American Tradition of Rule of Law.  Liberty Fund, 1993.

[3]   Lex, Rex, or, the Law and the Prince: A Dispute for the Just Prerogative of King and People. Containing the reasons and causes of the most necessary … H. Grotius … In forty-four questions (1644).  Sprinkle Publications, 1982.  Charles’ father James I had also written about his divine right, absolute monarchy in The True Law of Free Monarchies (1610).

[4]   Jeremy Waldron, “The Rule of Law,” Stanford Encyclopedia of Philosophy.  2016, at https://plato.stanford.edu/entries/rule-of-law/.

[5]   Ibid., Section 5.

[6]   See James Buchanan and Gordon Tullock, The Calculus of Consent: Logical Foundations of Constitutional Democracy.  University of Michigan, 1962.

[7]   I am assuming that the enumerated powers are properly interpreted, and that other clauses have not been unduly expanded, for example, the “Necessary and Proper” Clause or the Commerce Clause.  Clearly, the Federal courts have expanded the scope of the meaning of enumerated powers and those clauses.

[8]  Two Treatises of Government (1689), edited by Peter Laslett.  Cambridge University, 1988, Chapter VII, section 94.

[9]   See for example, Cato’s Letters, written by John Trenchard and Thomas Gordon in the 1720s and the works of Henry Bolingbroke during the same time period.

[10]   It should also be noted that even where votes are by simple majority, the “winners” are still subject to laws, with some notable (and unfortunate) exceptions in practice.

May 9: Magna Carta (The Great Charter), Parliament And The Origins Of Representative Congress – Guest Essayist: Marc Clauson

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The English Parliament was one important inspiration for the Founding Fathers in designing our own Constitutional system.  In this essay I will explore in more detail the origins of our Congress in the English parliamentary system and the relationship of Magna Carta to our own Founders’ ideas.  Magna Carta is argued to be at the root of the English parliamentary system, so we wish to look to it to find the beginnings of representation.

Magna Carta (or The Great Charter) was subscribed in 1215 after a conflict between certain nobles and King John.  It essentially affirmed a variety of already-traditionally asserted rights in a written document.  But Magna Carta had nothing to say about a parliament.  The actual Parliament would not come into existence until decades later.  So what is the connection between the two?  Peter Boyce has shown the connection when he writes that “Clause 61 of Magna Carta…promised that ‘the barons shall elect twenty-five of their number to keep and cause to be observed with all their might, the peace and liberties granted and confirmed by this charter’. That body would evolve into the House of Lords.”[1]  Over time, the kings, after Montfort, would begin to meet with both nobles and “commoners.”  Thus emerged around 1265 the House of Commons in its infancy.  Eventually the House of Commons came to see itself as the repository and guardian of the rights granted in Magna Carta.[2]  It also began to function to channel grievances from the people to the king and to bring petitions to the king.[3]

But that is not the whole story.  If the Parliament began to view itself as a preserver of rights under the so-called “Ancient Constitution,” how does that function translate to law making, the basic legislative activity as conceived by the Founding Fathers?[4]  Hanna Pitkin helps here.  She notes that over time from the 14th to the 17th century, the parliamentary “members” began first to receive grievances from their people toward the king, then began to be thought of as servants of their communities, and finally developed a collective mentality, presenting common petitions.  Common petitions easily translated into general laws, and the Parliament therefore took on this law making function.[5]

A political theory of Parliament also developed in parallel with events, reaching a culmination in the seventeenth century.  By the fifteenth century the members were acting as a unified body and were called “attorneys…of all the people of the realm.”[6]  Each member acts for the whole nation.  From this developed two other important ideas: (1) that all men are present in parliament (virtually) and (2) that the ruler embodies the entire realm.[7]  In 1642 King Charles I refers to Parliament as the “representative body of the people.”[8]  Thomas Hobbes in his Leviathan (1651) saw Parliament as an agent of the people, acting on their behalf, and called the members “representatives.”[9]  Parliament is an artificial person and its actions are to Hobbes undertaken by virtue of the consent of the people in the social contract.  John Locke would largely agree.  Though he was indifferent as to the specific form of government, he saw the “legislative” as the predominant power and generally a House of Commons as embodying that power of making laws and representing the people whose consent it required to continue.[10]

We know the Founders looked to England to a great extent for ideas for the new government.  In fact, the Colonies were products of English political practice.  Each colony already had at least one chamber of representatives, and most two, obviously modeled after the English Parliament.[11]  Representation by a Congress is intended by the Founders to replace direct democracy, since it would be impossible to assemble all the people in one place at one time.  It is a “substitute for the meeting of the citizens in person.”[12]  If we look in more detail at the structure of Congress, we can see a bicameral legislature much like England’s.  The Senate is the more “aristocratic” body, chosen by (at this time) the state legislatures, as the House of Lords members were appointed by the Crown in England.  The House of Representatives on the other hand is elected by the people, and its makeup is based on population, so that there would be, as much as possible, a proportional correspondence between each House representative and the people whom he represents (though not obviously a one-to-one correspondence).

There were differences between the English Parliament and the Congress.  For example, Senate members were chosen regularly while Lords were permanent.  House representatives were also elected regularly, while Commons members, although elected, held office for a greater time period and elections were sometimes more of a sham than genuine.  The American Founders must have noticed these defects and others, and sought to bring a greater sense of real “standing in” to Congress on behalf of the people.[13]

The final version of the American Congress can be traced back to the Magna Carta itself, but in addition, our Founders drew on a rich source of political ideas that developed throughout the same period from Magna Carta on.  The initiating event then was the core of the British “Ancient Constitution,” but the foundation was the growing notion that the people ought to play a greater role in making laws.  The representative body was the mechanism to achieve that goal.

Marc A. Clauson is Professor of History, Law and Political Economy and Professor in Honors at Cedarville University. Marc holds a PhD from the University of the Orange Free State, SA, Intellectual History and Polity); JD (West Virginia University College of Law, Jurisprudence); MA, ThM (Liberty University, New Testament Studies and Church History); MA (Marshall University, Political Science); BS (Marshall University, Physics); and PhD work (West Virginia University, Economic Theory).

[1]   Peter Boyce, “Magna Carta and the Parliament,” Paper presented at the Parliament of Tasmania on the occasion of its commemoration of the 800th anniversary of Magna Carta, Hobart/TAS, 16 June 2015. https://www.murdoch.edu.au/School-of-Law/_document/WA-jurist-documents/2015-Vol-6/Boyce—Magna-Carta-and-the-Parliament.pdf, 218.

[2]   Ibid.

[3]   See Hanna Fenichel Pitkin, The Concept of Representation.  University of California Press, 1967, pp. 243f.

[4]   On the unwritten and unenforceable “Ancient Constitution” see Glenn Burgess, The Politics of the Ancient Constitution: An Introduction to English Political Thought, 1603-1642.  Penn State University Press, 1993.

[5]   Pitkin, op. cit., 244.

[6]   Stanley Chrimes, English Constitutional Ideas in the Fifteenth Century.  Cambridge University, 1936, p. 131, cited in Ibid., p. 245.

[7]   Ibid.

[8]   Ibid., p. 246.

[9]   Edited by Richard Tuck.  Cambridge University Press, 1996, Ch. Xxxvi.

[10]   John Locke, Second Treatise of Government (1689), edited by Peter Laslett.  Cambridge University, 1988, Chapter XIII, section 149.

[11]   See Donald Lutz, editor, Colonial Origins of the American Constitution.  Liberty Fund, 1998.

[12]   Pitkin, op. cit., p. 191.

[13]   Madison in the Federalist Papers does not believe the elected representatives must be exactly like the people whom they represent, but that they possess sufficient virtue and desire to act for the common good.  But they are also incentivized toward virtuous actions by frequent elections.  See Federalist 57, in Alexander Hamilton, John Jay and James Madison, The Federalist Papers. Edited by George Carey and James McClellan.  Liberty Fund, 2003, Gideon edition.

 

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February 22: Beginnings Of The United States Congress Part 2 – Guest Essayist: Marc Clauson

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Legislative assemblies came to be debated first in the seventeenth century, especially in England.  They were also discussed in theory by Thomas Hobbes, John Locke, James Harrington, and Montesquieu, among others.[1]  I will define representation, equating the term with political representation, as “making citizens’ voices, opinions, and perspectives “present” in public deliberation and policy making process” when “political actors speak, advocate, symbolize, and act on behalf of others in the political arena.”[2]  When we think of our own American system, we ought to consider the issues the Founders addressed regarding representation, and “built into” the Constitution:

  1. Why have a legislative body at all, as opposed to a monarch or elected executive?
  2. Who would be represented by Congress, individuals or states, or both?
  3. How many “houses” or chambers of a Congress should be created, and why?
  4. Who would be able to articulate a political “voice” through Congress?
  5. What powers would this legislative body have, given the inevitable inequality of authority?
  6. How would the legislative bodies relate to the other branches, Executive and Judicial, the question of separation of powers and checks and balances?
  7. What should be the “voting rules” (simple majority, super-majority) of Congress for various types of proposed actions?

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