Guest Essayist: Adam MacLeod


The Rule of Law Applies to Congress, Too

The phrase, “the rule of law,” means that the power and discretion of those who exercise government powers is constrained. Officials may not do whatever they want. They must instead act according to rules, rights, customs, and other laws. This is the significance of John Adams’s classic formulation, which he enshrined in the Massachusetts Constitution, that the goal of the Constitution was to produce a “government of laws, and not of men.”

Like the other branches of government, Congress is also subject to the rule of law. Legislatures such as Congress do not make the law. Law comes from acts of human reason and natural order. Legislatures have power to change law, as executive officials have power to enforce and judges have power to adjudicate it. None of them must ever use their power to destroy the law.

The American founders achieved the rule of law in part by political means. The Massachusetts Constitution, which became a model for the Constitution of the United States, placed the legislative, executive, and judicial powers in separate branches of government. The enumeration and separation of powers prevent any one person or faction from gaining too much power over others and constrain each political actor within the bounds of law.

However, political protections for the rule of law are not enough. For one thing, officials can collude together, and often will when their interests align. King George III and Parliament acted in concert to deprive the American colonists of their customary rights. In declaring their independence from Great Britain, the colonists listed those deprivations as causes for the separation.

More fundamentally, there must be a law that rules over officials. So, the rule of law requires not only internal constraints on the powers of government but also external constraints. Officials must be constrained by law itself.

This is why all of the great American jurists insisted that the power to change law must remain only in the legislative branch, which changes the law generally—for everyone—and only prospectively. Most of them also insisted that even the legislative branch cannot retrospectively change rights that are either inherent in human nature or vested by some authoritative act, such as a contract, a conveyance, or a jury verdict. Harvard law professor and U.S. Supreme Court Justice Joseph Story insisted that government cannot “be presumed to possess the transcendental sovereignty to take away vested rights of property.” For “[t]hat government can scarcely be deemed to be free, where the rights of property are left solely dependent upon a legislative body, with­out restraint.”

This means that where rights have been settled and specified according to the requirements of natural reason; or by ancient customs; or by institutions of private ordering such as the family, religious associations, property and contract; the government is obligated to defer to those settlements. Not even Congress has the power to make up law.

Congress and other legislatures can take away entitlements. For most of American history, jurists have distinguished between natural liberties and vested rights, which legislatures have no power to take away, and mere entitlements, which come from the government and which government has some power to alter or even abolish.

That foundational distinction is largely forgotten today. People speak of “rights” to receive education or health insurance from the government as if those had the same constitutional status as rights of life, liberty, and property. Indeed, many people want Congress and state legislatures to have more powers to do good things for people. But legislatures who exercise powers to create entitlements use those same powers to deprive some people of their natural liberties and vested rights. In this way, American legislative bodies chip away at the rule of law.

As the Constitutions of Massachusetts and the United States both reflect, the whole point of government is to secure people in the enjoyment of their natural and vested rights, and thus to make possible the blessings of ordered liberty. So, the government that does not secure the natural and vested rights of the people is a bad government. And a government that actively deprives people of their natural and vested rights is a tyrannical government.

To restore the rule of law, Americans need first to re-learn law in its full and comprehensive sense. We need to recover a knowledge of the legal reasons which place external constraints on the powers of officials—including legislators—to deprive us of our natural and vested rights.

Adam J. MacLeod is Professor of Law at Faulkner University, Jones School of Law. He is the author of Property and Practical Reason (Cambridge University Press 2015) and co-editor of Foundations of Law (Carolina Academic Press 2017).


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