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It is a commonplace of democratic rhetoric to assert that we residents of democracies are governed by law and not by men. To be governed by men means that those who hold power can create privileges for themselves and their allies. In contrast, to be governed by law means that holders of power gain no advantage from holding power because law pertains equally to everyone.
It is easy to see why democracies assert that they exemplify the rule of law, for it projects the image that politicians are equally subject to the same laws as everyone else. This claim on behalf of the rule of law seems intuitively obvious once democracy is defined as a system of self-governance. But the claim that the sun rose in the east and set in the west was also intuitively obvious prior to the 16th century, when that intuition was recognized as being wrong.
Claims on behalf of the rule of law must confront the inconvenient fact that law cannot possibly make and enforce itself. Only people can make and enforce law. How can law rule over people when it is people who make law? Is it possible to bridge the gap between this inconvenient fact and claims on behalf of the rule of law?
The American Constitutional Founders thought so, provided that power was divided and separated among holders of pieces of power. Rule of law and separation of powers are thus close cousins within the constitution of liberty on which the American republic was based. The original Constitution established a federal form of government where power was divided and separated in several ways. The federal government was limited to a few enumerated powers, with all other activities reserved to the states or to individual citizens. Federal power, moreover, was divided between legislative, executive, and judicial branches. Even more, the executive power was divided between the two most popular politicians in the land prior to the advent of political parties when President and Vice President were coupled.
Rule of law thus requires division and separation of powers, and in a manner that prevents collusion among holders of power. A key feature of governance through a rule of law is recognition that people should not be judges in their own causes. This recognition was robustly alive at the time of the American constitutional founding. With collusion among holders of power, however, holders of power can come to be judges in their own cause, thereby violating the central feature of any concept of rule of law.
In the original Constitution, the federal Senate was appointed by individual state legislatures. This arrangement created a form of Council of States within the federal Congress. The situation changed dramatically with the direct election of Senators in 1913. The direct election of Senators led to the establishment of what Michael Greve in The Upside-Down Constitution calls cartel federalism in place of the earlier system of competitive federalism. Through cartel federalism, the federal government and the states act as a cartel to act on behalf of dominant interest groups within society.
Erosion in the rule of law can be illustrated by the ability of governments to take private property. The Fifth Amendment to the Constitution allowed for a taking of private property, but only under tightly restricted conditions. That taking must be for a genuine public use. Furthermore, the owner of the property must be justly compensated for what was taken.
It is easy to see how these restrictions on the taking of private property reflected rule of law principles. By requiring the taking to be for public use and accompanied by just compensation, governments were placed on roughly the same footing as individual citizens who sought to acquire someone else’s property. Governments and their officials did not have special powers that individual citizens lacked, for anyone can always offer to buy someone’s property. This is the rule of law in operation.
Rule of law is a staple claim of democratic sensibility and ideology. It is not, however, an automatic quality of democratic government; it is not a natural political condition. It is rather a variable quality of constitutional arrangements inside of which democratic governance proceeds. Rule of law requires the absence of some apex of power; however, powers distributed among the many tend to funnel into power held by the few. The 20th century Italian sociologist Robert Michels described this tendency the iron law of democratic oligarchy. A tendency is not inevitability, however, and rule of law and separation of powers are important facets of a constitution of liberty, though these must be fought for continually because they don’t arise naturally, and they won’t remain in place tomorrow just because they are here today. Liberty is a perpetual struggle against forces of social and political entropy.
Richard E. Wagner is Holbert Harris Professor of Economics at George Mason University.
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