You probably already know that Tuesday is May Day, the most important date on the communist calendar. What you probably don’t know is that it’s also Law Day, a day officially designated for Americans to celebrate our Constitution and reaffirm our dedication to the rule of law.
In 1958, President Dwight D. Eisenhower issued a proclamation establishing Law Day to co-opt what had become a triumphant communist celebration. The 1950s had seen some of the darkest days of the Cold War, with many victories for international communism; Eisenhower wanted to establish an American holiday that “distinguishes our governmental system from the type of government that rules by might alone.” In the atomic age, “the world no longer has a choice between force and the rule of law. If civilization is to survive, it must choose the rule of law.”
The 60th anniversary of Eisenhower’s proclamation is a good opportunity to consider whether we do indeed live in a nation governed by the rule of law. We certainly have a lot of laws on the books, a vast legal system, and millions of lawyers. But the mere existence of laws, legal institutions, and lawyers proves nothing about the existence of the rule of law. Laws have often been promulgated and enforced by abusive tyrants. Many dictatorships have written constitutions, legislatures, and courts. Even North Korea has a national bar association.
At its core, the rule of law involves the restraint of discretionary power, motivated by the belief that law rather than unrestrained rulers should guide the affairs of a nation. The rule of law means that government action will be bound and channeled by rules enacted by the elected legislature, rules that are clearly written and publicly announced before their consistent application, rules that are fixed until they are amended by the legislature. The certainty resulting from a system of fixed rules enacted with the consent of the governed for prospective and general application makes it possible for individual citizens to freely and productively manage their affairs within the broad open spaces established by such a system of rules.
Law Day celebrates the greatness of our Founders, who dramatically distinguished themselves from tyrants across the ages by humbly subjecting themselves and their successors to the rule of law embodied in a Constitution. The Founders carefully enumerated the powers and separated the functions of the government to protect against the tyrannical excesses that always result from the concentration of unbounded authority.
Our new nation’s commitment to the Constitution and the rule of law, though frequently challenged, remained basically intact until the turn of the 20th century, when self-proclaimed “progressives” began to attack the principles and institutions of our founding. They criticized the constitutional limitation and separation of government powers as an impediment to the dominating executive bureaucracy they said was needed to regulate life. The progressives believed that the people could no longer manage their own affairs in the complex society that America was fast becoming.
Bureaucratic experts would be needed to regulate things, experts schooled in the social sciences and public administration and broadly empowered to exercise their professional discretion to formulate policy, and to enforce their professional judgments through the use of force-backed directives. By permitting and prohibiting, rewarding and punishing, allocating and reallocating the resources of society, the experts would direct America and Americans so as to advance the progressive agenda for transformative economic regulation and social engineering.
If the rule of law is defined by the restraint of discretionary power, the modern regulatory system is defined by the exercise of discretionary power. The progressives replaced the rule of law with the rule of the regulator.
Much of what has concerned us in recent years about the modern regulatory system is directly traceable to the steady decay of the rule of law. Countless regulators have overstepped their lawful authority and ignored due process to grab power and to impose politically motivated policies, blocking worthwhile projects and ruining legitimate businesses all across the land.
Even a small sample taken from this sad cavalcade of regulatory lawlessness underscores the seriousness of the problem: the pre-emptive veto of the Pebble Mine project in Alaska, the war on coal, the war on for-profit colleges, the imposition of utility-style controls on the Internet, the assault on Bucky Ball products and their creator, the paramilitary raid on Gibson Guitar. A change of administrations has brought temporary relief, but the restraint of overreaching executive agencies should not depend on the results of the next election. For that, we need to restore the rule of law.
It took years for the current situation to develop, and it will take hard work to correct it. We must reacquire an understanding of what the rule of law really means and how essential the restraint of government power is to our freedom and future. Personal commitment and study, as well as open discussion and civil debate, will be essential.
Eisenhower was correct to warn that we will not survive unless we choose the rule of law, so we need to encourage the public celebration of the principles and institutions we are working to restore. Law Day is a good time to start.
Kennerly Davis served as Deputy Attorney General for Virginia from 2013-2014.
