Still a Nation of Men

Q: What does it mean that we are a nation “of laws not men?”

A: This sound bite is taken from one of the earliest cases in American jurisprudence: Marbury v. Madison, a case held out as justifying the doctrine of judicial review. It was Chief Justice John Marshall who authored the now infamous phrase, saying: “The government of the United States has been emphatically termed a government of laws and not men.” Marshall’s infamous one-liner has resounded through the ages finding voice in Presidential addresses and protest marches alike.

To be a nation “of laws and not men,” removes the subjectivity of fool-hearted men and imposes the objective independence of the law. In an ideal sense, the phrase suggests that each citizen of this fair country – the poor, the rich, the farmer, the broker, the Senator, the dog catcher – is under the law. Stated another way, no one is above the law.

In a certain sense, this has remained true. We have seen presidencies toppled because the Chief Executive broke the very laws he was charged with executing. Judges, Senators, and Congressmen alike have all been brought from lofty positions of power to none at all by the sword of Lady Justice. Indeed, it is Lady Justice that embodies Marshall’s words: she wields her sword blindly, caring not for whom it strikes, but only for justice.

But is this the case today? Are we truly a nation “of laws not men?”

Some may point to the perceived illegalities of wars or covert activities of government. Some may suggest the actions of certain judges liken them more to subjective legislators, rather than dispassionate arbiters. Some may even suggest that laws can have no objective basis for what is right for one might be wrong for the next. In so doing, each is implicitly attempting to debunk the wisdom that was Marshall’s mantra.

Marshall appears not even to agree with himself. He went on in Marbury to say, “It is emphatically the province and duty of the judicial department to say what the law is.” In so stating, he seemingly elevated to a position above the law his brethren of the black robe.

But the seeming dichotomy is explained by understanding, as Marshall did, the three interconnected sources of law. There is a fundamental law. This is what is referred to in our Declaration of Independence as “the Law of Nature, and of Nature’s God.” It is a transcendent law, inescapable in its universal application. But there is also constitutional law, which establishes the order and form of our civil government.

Finally, there is the legislative law, as written by legislators. Interestingly, the word “legislator” means, literally, “to carry the law.” A legislator, then, is to carry the law that exists at the fundamental level and apply it to the constitutional framework. Apart from that, law lacks meaning and is contrary to the very fabric of nature. That duty of a legislator is what is meant by another famous phrase: “law is found, not made.”

The law of the legislator must agree with the “Law of Nature, and of Nature’s God” lest our rights be weakened at the fundamental level and we become a nation of men and not law.

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

A Truly Precedential Column

Q: What is “precedent” and what affect does it have?

A: Any dictionary will tell you that a “precedent” is a legal decision that has an authoritative impact on cases of a similar nature. But, if you want to really be fancy and impress the neighbors, you should call it stare decisis, pronounced “STAHR-ee di-SIGH-sis,” literally meaning, “to stand by things decided.”

A decision becomes “precedent” when the highest court in the given jurisdiction gives final interpretation to the law. Recall from high school civics that, as our first Chief Justice of the Supreme Court of the United States said, “It is emphatically the province and duty of the judicial department [the courts] to say what the law is.” What Chief Justice Marshall wrote simply echoed Alexander Hamilton’s words in The Federalist Papers, No. 78, “The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.” Ultimately, this notion became known as “judicial review.”

What we have then, are two basic sources for our laws, each based upon a fundamental, legal building block. One source is legislative. The Legislative body determines the “will of the people,” writes laws to provide for our collective goodwill, and ask that they be implemented by the Executive. But, the Judiciary acts to ensure that the rights of the people are not trampled by the acts of government. As Hamilton put it No. 78, “the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

That is, we as a society have consented to be governed and put that governing trust in the hands of a government. That consent has taken the form of our Constitution, the foundation for our laws. If that government acts contrary to what we have consented in the Constitution, then the government (our agents) must give way to the constitution (our intent).

That brings us to the second source for our laws: common law. Common law is a fancy way of saying judicial decisions. The significance of why it is called, “common law” we will leave for later. Suffice for the present to say that common law has equal effect as legislative law. Judicial decisions “say what the law is,” so to speak. Where it crosses our consent by actions of our agents, it is unconstitutional.

But, once written, the judicial opinion becomes authoritative even over the piece of legislation is has then ruled upon. The Legislative branch would, therefore, have to write a law that would not conflict with that decision. If it legislates afoul of that judicial opinion, it will be invalidated by that governmental watchdog: the Judiciary.

Not only must subsequent legislation conform to that decision of the court, subsequent courts must also “stand by things decided.” In other words, the decision has “set a precedent.”

Setting precedent is a very serious matter. In order to overcome it, a court must essentially admit that it was wrong and change its mind – an act seldom undertaken. And, because our consent – in the form of the Constitution – is so fundamental to the foundation of our government, the importance of wisely reviewing our laws cannot be understated. Nor can the importance of placing the wisest and most prudent jurists on the bench.

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.