Men and the Rule of Law

Article III, Section 1 of the U.S. Constitution reads:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

This language is parallel to Article I Section 1

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

And Article II Section 1 Clause 1

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

Articles IV, V, and VI do not “vest” “power,” so since the period of John Marshall these parts of the Constitution have been interpreted as create a Triune Government. Under this interpretation, the US has one government with three co-equal branches”: the Legislative (established by Article I), the Executive (established by Article II), and the Judicial (established by Article III).

There are multiple interpretations of how this works in practice:

Deng Xiaoping, the former paramount leader of China, believed that the U.S “has not one government, but three.”

A Marxist, who believes the government is the “execuive committe of the bourgeoisie,” would conclude that the American bourgeois have three executive committees, a structure intended to make the government less efficient

A victim of the American public school system probably belives the Legislature tries to write popular laws, the Executive tries to faithfully executive them, and the Judicial tries to faithfully interpret them.

There is some truth in all of these ideas, but all of them ignore the practical considerations of power and responsibility.

Important actors in all three branches must balance their priority sets with their limited resources, in a dynamic environment where others are trying to do the same. Actors who become sympathetic to their branches will try to aggrandize their branches, and protect them from delegitimization.

Regardless of one’s position regarding today’s ruling regrading health care reform, commentators on the left and right noted the heavy pressures the Chief Justice was under regarding these forces. Generally, commentators on the right complained about the Executive “pressuring” the Judicial (to threaten to delegitimize that branch), while commentators on the radical left spoke of “information operations” to defend the Judicial from delegitimization.

We tell children, the trainable retarded, and people we wish to lie to that we have a “rule of law, not of men” in this country. Sometimes, if we’re not paying attention, we even believe such blather.

Rather, we have are a rule of men, who have priorities with respect to laws, who are empowered and constrained by laws. This is the same thing as saying we have a rule of law, which are written and used by men, to empower and constrain men.

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