Protecting the Rule of Law: What's Your Responsibility, 0319 COBJ, Vol. 48, No. 3 Pg. 4
| Author | BY JOHN VAUGHT |
| Position | Vol. 48, 3 [Page 4] |
CBA PRESIDENT'S MESSAGE
BY JOHN VAUGHT
If you
were fortunate enough to see the musical Hamilton,
you were also blessed to witness the strong, albeit
disparate, spirit of the Founders when they debated the
issues that led to the U.S. Constitution and the Bill of
Rights. Through the medium of historical fiction, theater
characters took you into "the room where it
happened"
We often talk in legal and social circles about the Rule of Law, yet as important as it seemingly is to our democratic republic, there is no one paragraph within the Constitution that defines that term. So where do we find its meaning? How do we, as lawyers, understand our duty to protect that governing concept? Collectively, all of the founding documents, the independence and interconnectivity of the branches of government, and the customs and traditions developed and honored over the last 230 years comprise the means by which this country has chosen to limit the power of government, and these make up the Rule of Law. It is the Rule of Law to which our duty as lawyers is owed.
Elements of the Rule of Law
Some define the Rule of Law as "no man is above the law." While that distinguishes our nation from monarchies, dictatorships, and totalitarian forms of governments, it fails to address the core and collateral issues that our Founders were struggling to define. That is, faced with the "raw power" of an unrestrained government, and applying the historical concepts of the Rule of Law, the Founders looked first for ways to divide that power.
At the Constitutional Convention of 1787, they chose to divide the government into three branches as an initial means to restrain government. The order of that division of government was not fortuitous. The legislative branch—the branch most responsive to the electorate and the maker of our laws—was designated Article I. As the first among equal branches, Congress was expected to be particularly vigilant in maintaining its separation from the other two branches of government. Yet when overlaps occurred—for example, confirmation of cabinet members and approval of federal judges—it was Congress that was entrusted with that task. The goal of separation of powers and independence of...
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