Do We Still Have A Rule of Law

Author: W. B. Ball


by William Bentley Ball

Thomas Babington Macaulay, writing in the mid-19th century, spoke of the perdurance of the idea of a Rule of Law in England. "Our laws and customs," he said, "have never been lost in general and irreparable ruin. With us the precedents of the Middle Ages are still valid precedents, and are still cited, on the gravest occasions, by the most eminent statesmen."[1]

The American Bar Association, and state bar associations from coast to coast, frequently remind the public that we Americans live under a "Rule of Law." Many local bar associations celebrate an annual Law Day, and speakers at these affairs exult in the superiority of American society over most other societies for its fidelity to the idea of a Rule of Law. We lawyers take some pride in these affairs (humble though we characteristically are), since we feel that it is we, the legal profession, who should have chief credit for the existence of an American Rule of Law. But we might do well to ponder, at times, what "Rule of Law" really means. I think there is no time like the present to indulge in that inquiry.

At once come to mind two places in which we say, with confidence, that no Rule of Law exists-Rwanda and China. In Rwanda there are no laws which anyone observes. China has nothing but laws, even laws criminalizing childbirths which the government deems excessive. In Rwanda people are lost in chaos. In China they are trapped in the hard amber of absolute state rule.

The Rule of Law as envisioned by the framers of the American Constitution contemplated neither a society of freedom from laws nor a society of all laws and no freedom. Nor, however, was contemplated a via media between a Rwanda and a China-a little more law than the former, a little less law than the latter-a limited statism. Our founders, although marvelously practical, pragmatic, and saturated with knowledge of British politics, created a structure of secular government which was hinged upon a transcendent principle. That principle was stated in the preamble to the preamble of the Constitution: the remarkable words of the Declaration of Independence. The declaration said that there are "truths," that these are "self-evident," and that there are "rights" which are "unalienable" because people are "endowed [with them] by their Creator."

It is the fashion of some to scorn that declaration; of many, to ignore it. But demonstrably indeed, it states what we Americans have taken, until very recently, to be the very substance of the Rule of Law. A seminal scorner was the late 18th century's Jeremy Bentham, who believed that all power should be found in legislative codes-hence that majorities are the final source of anything called a "right." If this concept is correct, then we are plainly all at peril. The founding fathers rejected this concept and provided for a Bill of Rights and also for a judicial branch. A legislative act, regardless that it reflected the will of a majority, could be voided by the courts if it violated a provision of the Bill of Rights. This provided an immense support to the existence of a Rule of Law in our country because it put a brake on arbitrary rule by majorities.

But constitutions are the fallible writings of fallible human beings. Today two major developments in Supreme Court interpretations of the Constitution need our earnest attention, because they represent threats of extreme consequence to our prized Rule of Law.

The first of these developments relates to the court's recent opinions on that provision of the First Amendment designed to protect the free exercise of religion. Until recently the settled rule was that government could not impose upon the free exercise of anyone's religion without having to prove that its action was justified by a supreme societal interest (a "compelling state interest," as the court called it) and that, even if such an interest is proved to exist, government must show that its action is the least restrictive means it can find to achieve that interest. You will note the justice inherent in this rule. It is government which must meet that dual burden of proof. Religious parties coming before courts often lack the financial resources and attorney resources which government possesses. Further, religion is so highly esteemed in our constitutional system that it is not to be put at peril by unrestrained actions of legislatures or bureaucracies. In 1990, the Supreme Court, in , a case of offbeat facts involving Native Americans who smoked peyote in religious ceremonies, scrapped the historic "compelling state interest - least restrictive means" rule and held that governmental action can override religious claims simply if that action is religiously "neutral" and is "of general application." Let me give you a chilling example of how that new rule can play out:

Suppose that Texas adopts a statute requiring all high schools to provide all children enrolled with condoms. Religious schools object on moral and religious grounds. They challenge the law in court as violating their Free Exercise rights. The court, following the Smith rule, will require the statute to be enforced. It is "religiously neutral" (doesn't attack any religion, doesn't even mention religion). It is "of general application" (applies to all schools, public, private, and religious).

The Smith decision caused religious groups throughout the country to rise to protest this unfortunate action of the Supreme Court. Last year, that protest resulted in passage by Congress of the Religious Freedom Restoration Act. That act commands our courts to go back to the "compelling state interest- least restrictive means" test. We can be very happy over this. But the horizon is not yet clear. The Supreme Court may decide that it will not take dictation from Congress as to how it shall interpret the Constitution. Further, there is, unfortunately, a weasel word which got into the text of the new act. That is the word "substantially"-the act reading that only if governmental action "substantially" interferes with religious liberty, is that action challengeable. While our courts, in the past, did a very good job in spotting fraudulent religious claims and throwing them out, this new statutory word may lead judges to feel that they have a large license to determine religious questions. In a case I handled years ago, involving criminal prosecution of Amish parents for refusal, on religious grounds, to enroll their children in high school, the state made a great point of saying that, in its view, no substantial religious questions existed. (Happily, the U.S. Supreme Court found that a supremely important religious claim existed and ruled in favor of the Amish.)[2]

On this whole first development, therefore, I can only plead that we give deep thought to our religious traditions and what they should mean to us in America today, where violence, disintegration of family life, and materialism are becoming rampant. Religious liberty-remember-is not a mere exemption; it is a fundamental in the Bill of Rights.

The second development brings me to two things: a) which we choose in order to describe matters crucially important in our society, b) what we really think about itself. "Human life!" Right away you sense that I may be bringing up the "A" word, the ugly subject of abortion. I hope that you will bear with me because, when you think about it seriously, nothing more closely relates to the concepts of a Rule of Law than the question of whom the Rule of Law covers. We take a lot of comfort in knowing that, as we leave the premises of this cathedral, we won't be walking out on a street in Rwanda, with a very live peril of our not making it home. Our laws hedge us about with protections of our lives. In the ongoing abortion debate, people calling themselves pro-lifers attempt to discuss failure of legal protection for one class of lives. But suddenly interposing are words which block that discussion. I think that this substitution is very damaging to our polity and, as I hope to show, to our Rule of Law.

When I first began to hear the phrase "reproductive rights," I marveled. The "reproductive right" intended was not at all a right to reproduce, or even a right to not reproduce. It was intended to mean-but mask-the act of abortion. And the word "abortion" became downplayed in favor of another term likewise intended as a mask: "terminate a pregnancy." I was not as much concerned that groups were active in the public forum urging that women should have the right to abort, as over the fact that they avoided their public duty to say with candor exactly what was on their minds. Why the almost puritanical reticence? In the 1990s is there that people who claim to be liberal-minded hesitate to put in the most explicit, indeed often crude, terms? Why this Victorian modesty on the subject of abortion?[3] I think it is because abortion advocates know that to use plain speech would defeat their objectives. In other words, they avoid the words that identify the thing they advocate:

* That a life is involved. If not, why "terminate" it?

* That that life is human. What else?

* That abortion kills that human life.

The popularized term "choice" does not refer to the right of a woman to choose life. It's pointless to say that a woman has the "right to choose" life for her unborn child. Of course she has. Outside of China, that's a given. "Pro-choice" is meaningless except in reference to the right to kill.

Now our courts have bought not only the idea that there is a right to kill an unborn human being but even the Aesopian language which masks the act. It is in these facts that I see not only a danger to the American Rule of Law, but the reality of its disappearance. When deceitful language becomes the currency of public discourse, the common good is harmed because momentous decisions may be made upon a basis of unreality. These decisions include court rulings and the making of legislation. Suppose we attempted to justify racial discrimination as an exercise of "differentiational rights" or described forms of violent conduct (other than abortion) as matters of "choice." We would thereby confuse and misdirect the public dialog which is so needed for the formation of good public policy.

We owe one another something better. We owe America something better. Because, due in large part to a widespread indulgence in falsification of the true terms of debate on abortion, we have made the killing of millions of human beings each year a feature of our national life. This has plainly destroyed, for now at least, the American Rule of Law. If law cannot protect innocent human life- however humble, however inconvenient to some its existence may be-then we have taken a giant step away from the Rule of Law. James Madison, in his great , spoke of the total significance of principle, even where the principle involved but the payment of a three-pence tax. "The free men of America," he said, "did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. "

Six justices of our Supreme Court-all by the way, beneficiaries of the best that American life can offer in education, wealth, and status-have held that the killing of the unborn human being is a fundamental right. The consequences of that principle are staggering. It is already seen as justifying assisted (promoted) suicide, and is inevitably moving us to see all rights in terms of sheer material utility.' If the right of innocent human life is at risk, all lesser rights are at risk. The Rule of Law becomes the Rule of Utility, and we -like all materialist civilizations before us -abandon the glory of our tradition and move into the dark night of barbarism.

But we lawyers are a stubborn and resourceful lot. Our beloved country should be able to count on us now to fight for restoration of our Rule of Law. Many of you here at this gathering have wonderfully succeeded in cases everyone told you you'd lose. I commend to you tonight the words of Churchill in England's darkest hour: "In victory, magnanimity; in defeat, defiance." The "defiance" now needed in favor of religious liberty and the right to life consists, for us, in bringing rationality to a confused scene by encouraging truthfulness and in courageous laboring in the law, with the law, and for the Rule of Law.


1. T.B. Macaulay, I, , 35.

2. , 406 U.S. 205 (1972).

3. In 19th-century literature, even "pregnancy" was often referred to by the less explicit term "confinement."

This article was taken from the December 1, 1994 issue of "The Wanderer," 201 Ohio Street, St. Paul, MN 55107, 612-224-5733. Subscription Price: $35.00 per year; six months $20.00.