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Another principle of the Rule of Law is that all laws should apply to all the people. “[W]here there is no law, there is no liberty; and nothing deserves the name of law but that which is certain and universal in its operation upon all the members of the community,” wrote Founder Benjamin Rush in a 1788 letter to David Ramsay. (Emphasis added) Do our laws apply to all?
It is not uncommon for Congress to exempt itself from complying with certain laws. Congress has exempted itself from the Whistleblower Protection Act of 1989, the Freedom of Information Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, a key provision of the Patient Protection and Affordable Care Act and many others. Interpreting Benjamin Rush, do these laws deserve the name of law if they only apply to “ordinary Americans” and not the elite of Congress?
The Rule of Law should be the bedrock of our society; but this “bedrock” has the appearance today of shifting sand. If we expect the laws of our land to be respected, we must make them respectable, and the people who make such law must act respectably in doing so, using responsibly the power the people have delegated to them and them alone.
How did we reach this point? I lay most of the blame on the American people. Our lack of knowledge of constitutional principles today is a plague upon our society. But it was not always so in this country. In 1835, Frenchman Alexis De Tocqueville visited America and noted: “… every citizen is taught…the history of his country, and the leading features of its Constitution. … it is extremely rare to find a man imperfectly acquainted with all these things, and a person wholly ignorant of them is sort of a phenomenon.” Today, unfortunately, it is extremely rare to find an American citizen who can discuss features of his Constitution. In a recent poll, thirty-seven percent of Americans could not name a single right secured by the First Amendment.
Our educational system is also partly to blame for not teaching these important constitutional principles. Due to our ignorance, we then send the wrong people to represent us in Washington. We choose the wrong representatives because we don’t know enough to ask the right questions as they run for office. Instead of asking them what they intend to do to “fix Washington,” we should first determine their view of law, the Rule of Law, and the role Congress should play in representing “We the People” in writing our laws.
We can return to an authentic and respectable Rule of Law in this country, but it will require some effort. My suggestions:
- Insist that Congress once again exercise the exclusive legislative authority they were intended to have. If Congress insists that certain proposed legislation exceeds their technical expertise, let executive branch agencies propose rules; but those rules must first be submitted to a vote of Congress before they can take effect. This change would not require a Constitutional amendment, only a rule change within Congress.
- Require that every law passed by Congress applies to them – no exceptions. A “28th Amendment” has been making the rounds of the Internet the last few years. It reads: “Congress shall make no law that applies to the citizens of the United States that does not apply equally to the Senators and/or Representatives; and, Congress shall make no law that applies to the Senators and/or Representatives that does not apply equally to the citizens of the United States.” Since it is unlikely Congress will make such a change voluntarily, a Constitutional amendment will likely be needed and such an amendment would likely only come from an Article V Convention.
- Taking Madison’s warning to heart, the days of 2000-page bills should end. Bills should encompass a single topic and be limited to perhaps 100 pages, sufficiently short to be read in a single sitting.
- The original Constitution established only four federal crimes: treason, bribery, piracy and counterfeiting. There are estimated today to be in excess of 4500 federal crimes. It has been suggested that so many unknown crimes exist in the Code of Federal Regulations that every citizen violates at least one federal law each day, perhaps as many as three, making all of us potentially federal criminals should a federal prosecutor take interest in us. This must stop. There should be a methodical scrub of the CFR and antiquated, absurd or redundant federal crimes removed.
- We as a people should consider whether the principle of judicial precedent really serves republican purposes. A court’s opinion should be deemed to apply only to the two litigants in a case. When the Chief Justice of the Supreme Court charges that five of his colleagues have acted like a legislature, they should take note and change their behavior/opinion.
Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140. Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution. Gary can be reached at firstname.lastname@example.org, on Facebook or Twitter (@constitutionled).
 See: https://nationalinterest.org/feature/congress-acts-its-above-the-law-23400.
 de Tocqueville, Alexis (1835). De la démocratie en Amérique. (1 ed.). Paris: Librairie de Charles Gosselin.
 You are a federal criminal if you denigrate the character of Woodsy the Owl or his motto: “Give a hoot, don’t pollute.”
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