> Unless your responses were: 1) False, 2) True, 3) True, 4) False, 5) True, 6) True, and 7) True, you chose to interpret at least one of the words "Congress," "no," "law," "speech," and "press" in what can only be described as something other than its ordinary sense. Why did you do this? Were your responses based on the "plain meaning" of the words or on certain normative beliefs you hold about the extent to which the federal government should be allowed to interfere with citizens' expressive activities? Were your responses objective and neutral or were they influenced by your "politics"?
These days you read a lot of comments about courts "ignoring the Constitution." I don't imagine those same people were upset when the Supreme Court "ignored" the word "speech" in striking down restrictions on video game sales, or conjured up a "right to privacy" that it could not place anywhere within the text of the Constitution.
That said, law being political does not mean that adherence to rules is unimportant. The "rule of law" means that people are willing to abide by legal decisions. That willingness depends on judges at least justifying their decisions in terms of broadly-accepted rules.
If your response to question two was "False," you chose to interpret the word "Congress" to refer to the President of the United States and the word "law" to refer to an executive order.
... has a faulty premise. The corresponding question:
_____ 2) The President may issue an executive order prohibiting public criticism of his administration.
suggests that it's within the power of the President's Executive Orders to forbid public speech. But except where pertaining to powers delegated to the Executive by the Constitution, Executive Orders have no force not already provided by laws passed by Congress, and Congress can't pass such a law.
The premise for question 4 is similarly faulty:
_____ 4) A federal statute may be passed prohibiting a citizen from falsely shouting "fire" in a crowded theater.
(and)
If your response to question four was "True," you have underscored your belief that the word "no" really means "some."
Instead of relaxing the meaning of "no" or "speech", we can instead come to the conclusion that you can't yell "fire!" or, for that matter, defraud people with radium tonics because it's illegal to knowingly and deliberately coerce people through deception; it's the action and its intent that's illegal, not the speech itself.
Regarding 4, to my knowledge, there actually is no law against shouting fire in a theater. Everyone assumes that there is because of the opinion in Schenck v. US[1], which more accurately stated insists that falsely shouting fire in a crowded theater is not insulation against the punishments for fraud just because it is speech.
So, despite all the hullaballoo about shouting fire in a theater, there is no (federal) law against it to my knowledge, and to anyone who knows different, please correct me.
That said, there are no ante facto restrictions on speech within a theater, crowded or not (much to our collective chagrins), nor are our first amendment rights in any way curtailed by being in a theater, being in a crowded theater, or on conversations regarding fire, whenever and wherever, time, place and manner restrictions notwithstanding -- there are simply expressions that are not protected by the first amendment, which still does not entitle Congress to make such laws, even though they already have for other circumstances, and surely will again.
Edit: The bigger issue to my mind is that Congress has, and routinely skirts the issue by implementing through regulatory agency rule-making that has the effective force of law but without requiring such a law to be actually made -- for example, the ability of the FCC to enact decency bans against news agencies on public airwaves (even thought that is also on Constitutionally shaky on its own).
> The bigger issue to my mind is that Congress has, and routinely skirts the issue by implementing through regulatory agency rule-making that has the effective force of law but without requiring such a law to be actually made
Agency rulemaking, in order to be valid, requires that it is authorized by Congress and that Congress has the power in the first place. So, it doesn't get around First Amendment restrictions by not "requiring such a law to be actually made".
On paper, you're obviously correct. In practice, that is not nearly always the case. This is further complicated by Chevron deference, which has often shielded even the inquiry from getting far enough along in the process to be substantive.
If your initial complaint had been about the Supreme Court finding excuses to avoid doing its job, rather than about Congress avoiding the need to make laws to do something by making laws to do exactly what they are supposedly avoiding making laws to do, I would have been more inclined to agree with you.
A lot of deference was assumed before Chevron, especially post-FDR, and as a result, Congress + agencies began exploiting that deference more and more, to the extent that it became somewhat codified in Chevron.
The peril of stare decisis is that to be dutiful, SCOTUS must endeavor to abide previous decisions even when those decisions abdicated on matters of law. The net result is that the process is often exploited.
Government's a big system, and I'm as wary to assign a central figure for blame as I will be hearing my uncle Roger describe any of his crackpot theories over Thanksgiving dinner this-coming Thursday, but I think it's naive to say that the government isn't getting away with things on occasion -- the discussion really is how often, and how much we should care. To that discussion, I don't aim to be instructive, as my own caring would likely be considered excessive by most, or perhaps overzealous.
The bigger issue to my mind is that Congress has, and routinely skirts the issue by implementing through regulatory agency rule-making that has the effective force of law but without requiring such a law to be actually made
Why is this an issue? Agencies only get their mandates from laws enacted by congress, their rulings can still be challenged in court, and they often have been, though the FCC one is permissible because Congress is apparently allowed to restrict indecent material when there is a reasonable chance children could see it.
Agencies are a critical component of a functioning democracy, because there is no way Congress could have the time or the expertise to pass a new law for every decision an agency makes, of which there would be tens of thousands.
Because, as opposed to the more adversarial nature of laws, regulations can be passed unilaterally, or by executive order. This makes for rules which may or may not be good, but are definitely expediant. I subscribe to Thoreau's opinion on the matter, but in the case of executive order, agencies tend to skip over or completely ignore the response for public commentary, which is yet another way to short-circuit the process.
> Agency rulings can still be challenged in court
Sure, but agency rulings, in order to be challenged, must first do harm, for without harm there is no standing. For everyone who has gripes with the idea of suing a large corporation, I would agree that those gripes are justified, and further posit that the federal government is the largest corporation of them all. It is hence impractical for a small or even medium company in most cases to fund a successful challenge to a constitutional infringement, and as the limitation of constitutional rights is considered an irreparable injury, it seems that we do it in fairly broad scale far too routinely for my liking.
Beyond all of the above, there's a very good argument, specifically due to the increasingly oligarchical nature of our government that those regulations which are crafted at the behest of the large companies as competitive advantage to smaller companies are exceedingly unlikely to be challenged at all, much less overturned.
> suggests that it's within the power of the President's Executive Orders to forbid public speech.
Well, the exercise was framed that the answers should be based on one's interpretation of just that sentence from the First Amendment, not one's knowledge of Constitutional law. That sentence, read on its own in isolation, does not prohibit that effect.
Of course, its also completely silly as a demonstration of the author's thesis, since context is important to meaning of language (not just law), and the exercise as framed does more to show the effect of context on meaning than the divergence between well-defined law and political law.
Fair points. Though I might quibble about the first one: most people, and many judges, would say that the executive order was a first amendment violation. But technically it's a separation of powers problem. Which itself is only implicitly, rather than explicitly, in the Constitution.
On #2, you are assuming that the fact that The President issued an order means that it must have legal force. The truth is that The President can issue any kind of orders at all. However some aren't enforceable.
I'll grant you half points on #4 though. It is reasonable for Congress to pass laws that happen to affect speech (for instance a law against fraud would do so). But laws directly restricting speech are a different matter. Where do you draw the line between the two?
They can't ban speech for being deceptive. They can only ban deception intentionally deployed for purposes of coercing other people. Similarly, "give me your wallet or I will shoot you" is also in a sense speech.
That distinction might not matter to you; fine. I have a bigger qualm with the Executive Order question.
And a strict reading of the first amendment would allow "give me your wallet or I will shoot you". Of course, it could punish you for actually shooting, and so the threat may be incredible.
I wonder if congress can ban a mixture of the first and second on a literal interpretation? That is, allow people to bear arms, and allow them to threaten to shoot, but not at the same time? That would be a fascinating legal question in the alternate strict-law universe.
It seems clear to me that on its own, in a narrow reading Congress shall make no law . . . abridging the freedom of speech, or of the press makes no reference to the President or to any other laws at all.
Under a narrow reading of that on its own there is nothing to stop the President doing anything at all (indeed, there is no recognition of anything except Congress).
Same with the other question: for this exercise you are supposed to read this in complete isolation.
That's technically true. The Constitution only lists a few powers for the executive/President, namely being Commander in Chief of the armed forces, making treaties, and filling vacant senate seats. I'm no expert, but I would guess that most of the authority the executive branch enjoys comes from the the phrase "executive Power," which I presume would have been understood at the time to refer to the physical implementation and enforcement of laws.
I have heard the same for the judicial branch, particularly regarding judicial review. Judicial review isn't mentioned in the Constitution, but apparently it was well understood at the time that one role of the judiciary is determining the constitutionality or validity of laws.
The President's role as Commander in Chief is arguably not a power, it's a restriction on Congress's (express) authority to regulate the military, to wit, that such regulation cannot make ask our last of the military independent of Presidential command; aside from that restriction, Congress's airport to regulate the military is plenary, so exactly what the powers of the CinC are is wholly dependent on Congress's regulation.
Also, Judicial review is simply resolving alleged conflicts between laws, particularly questions of whether laws are invalid because they contravene laws which have superior precedence under the Constitution. This is obviously within the scope of resolving controversies arising under the Constitution and laws of the United States; there's no need for every particular kind of controversy or method of resolving it to be enumerated.
It is funny though that the law doesn't acknowledge the fuzziness of the law. In the article's example of the contract to buy a painting which ends up being very valuable, the law isn't going to apportion the value of the painting between the parties, because it's focused on determining which of the principles should prevail in that situation.
> United States v. Eichman, 496 U.S. 310 (1990) was a United States Supreme Court case that invalidated a federal law against flag desecration as violative of free speech under the First Amendment to the Constitution. It was argued together with the case United States v. Haggerty. It built on the opinion handed down in the Court's 1989 decision in Texas v. Johnson, which invalidated on First Amendment grounds a Texas state statute banning flag-burning.
> The "rule of law" means that people are willing to abide by legal decisions.
But surely very few people will say (and fewer truthfully) that they are willing to abide by any conceivable legal decision that is in accordance with the law in the given jurisdiction. Most people will agree that it is quite possible to have "bad laws," where "bad" is defined not by some objective moral claim but rather by their own beliefs and preferences.
So I find any appeal to "rule of law" disingenuous at best. Even if it did exist in the most extreme form, i.e. legal questions were objectively decidable and always executed flawlessly, most people agree that laws themselves can be bad and some laws can be so bad that they ought not be followed or enforced.
> conjured up a "right to privacy" that it could not place anywhere within the text of the Constitution.
If rights are enumerated, you do not have a right to freedom of movement, nor of procreation, nor a right to use telecommunications, because your rights were frozen at what the authors of the Constitution wrote down.
Judiciary has no force. Only the Executive and the People) have force, so the Judiciary must make decisions according to a process that the Executive tolerates and that won't foment rebelling by the People.
Big problem here is that he's missing the primary role of the State. The State is the organization that has the monopoly on violence in a certain territory. If you look around the world there are plenty of areas that are "Stateless" and they tend to have multiple organizations competing (always violently) to gain this monopoly and become the State. His examples perfectly play into this: 1900s immigrant communities in New York had violent competing gangs, Medieval Europe has a crazy high murder rate (as that was a very common means of dispute resolution), and many black communities are still struggling with having been abandoned by the State.
What these anarchist arguments come down to is saying that profoundly non-utilitarian arrangements that have repeatedly shown to be rife with human suffering are superior to stable first world societies due to adherence to some hokum about liberty being the most important thing.
> hokum about liberty being the most important thing
So if everyone were locked in a cage but safe and sound that would be ideal? Last I checked the death rate was 100%. I'd take violent freedom, adventure, and life over safety any day of the week.
If you want freedom from all oppression and authority, go take a walk on the moon without a spacesuit.
We need certain things to survive, and unless you're advocating that we massively depopulate the earth so that we can return to living as hunter gatherers states are the best option for us to live together.
Sure. Now ask yourself where you'd rather invest in property: in the USA, Russia, China. If you answer "China", "Russia", or "It doesn't matter", you're also in denial. Because the current real estate bubble is being driven largely by foreign nationals who are putting their money where their freedom is, and they are not choosing Russia or China.
The article is well worth reading. It makes some truly provocative points, but in real life we have to choose between unpleasant options, not an unattainable theoretical place and unpleasant options.
Makes me think about the Peruvian economist Hernando de Soto who did some interesting experiments to show how good property laws and what not directly relate to wealth generation. http://www.thepowerofthepoor.com/concepts/c6.php
Globalization at the Crossroads (DVD)
Globalization at the Crossroads features renowned Peruvian economist and author, Hernando de Soto. His twenty years of research show that economies prosper only in places where widespread personal property ownership exists—coupled with inclusive, efficient, and transparent business and property law.
But the law is just as much of a state monopoly in Russia and China as it is here...
Also it's a complete non sequitur. There are so many differences between Russia, China, and the U.S. that it's absurd to point to one area in which the U.S. is winning and claim it's because of our particular system of law, as opposed to any number of other factors.
Law may be a monopoly of the state in the US, but it's not something that the state is guaranteed to always have the best of. In Russia and China, if "the government" (however we interpret that) wants something, it gets it. In the US (and many other places), it can be found to be unlawful and the government doesn't get it.
AnimalMuppet tied a ribbon around my somewhat unfocused answer! Thank you, AnimalMuppet. Mobile phone limitations kept me from adding the desperately needed context.
I have to ask: is something going on regarding real estate and Chinese investors in SF or California ? It's not the first time I read hints about it on HN.
Yes? They've been buying property for some time now. Not just in the US, but in Canada (Vancouver in particular). Same with Russians buying property in the UK.
I'm not sure what you found controversial or surprising in the parent comment, though I haven't read the article because holy dense TLDR.
Capital is fleeing places like China and is being converted to real estate assets.
Real estate is seen as more secure than Chinese currency, and it's easy to transfer real estate while remaining fairly anonymous and avoiding money laundering laws.
Yes. Also Vancouver & Northern Cal. Have Chinese family & am involved in a fair amount of real estate. For reasons I don't quite understand, real estate people are too polite to say that the vast majority of cash transactions in some areas such as Vancouver, Seattle, and Silicon Valley are from China (and Russian in other areas).
That's something of a false dichotomy as there are many other options. However, diminishing returns kicks in so you eventually start making risky investments.
> Specifically, I intend to establish three points: 1) there is no such thing as a government of law and not people...
Point 1 is true. And yet, societies that have the "rule of law" function differently[1] than those that don't, and that difference is very beneficial to the people living in that society.
[1] Not completely differently, but still substantially differently - differently enough to matter a great deal.
There are many laws and rules we have created in the past that seek to be universally applicable. The golden rule, Kant's categorical imperative, the non-aggression principle are all attempts at this, and each one has accumulated an extensive list of exceptions and footnotes. The golden rule breaks down with masochists, the categorical imperative breaks down with increasing specificity of the action in question and the NAP flat out ignores externalities.
The world is too complex for simple rules, honourable though their intentions may be, and older attempts at this are guiltier than modern ones. The steadfastness to which America cleaves to an 18th century charter has posed significant roadblocks to establishing effective policy in the 21st century. While very readable, the Constitution is frustratingly unspecific. An enormous effort is spent in "interpreting" it in a way that can support policy, in the same way that the Bible or Koran is bent to suit the individual ideologies of their adherents.
With the right to bear arms, all that can really be agreed upon is that "arms" is something more than a butter knife and something less than nuclear ordinance. Free speech shall be guaranteed, except when it comes to advertising speech, fighting words, death threats and the list goes on. In these debates, the opinions of the framers should be only slightly more relevant than those of Plato, Hume or Rousseau, and what should dominate the debate is the actual consequences of the policy in question.
What's more, the absence of certain rights in the constitution has hindered recognition of the right to shelter, or safety, for example.
When Ruth Ginsberg was asked to recommend new founding policy for a revolutionary Egypt she said this:
"I would not look to the U.S. Constitution, if I were drafting a Constitution in the year 2012. I might look at the Constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary. … It really is, I think, a great piece of work that was done. Much more recent than the U.S. Constitution."
"Well, daddy, don't you know that things go in cycles..."
Every once in a while, we come up with a new generalization that cuts through the complexity of current, seemingly intractable problems. With time, they break down, succumb to exceptions, or lead to blind alleys. Consider "privacy", which is very new from a legal point of view, but no longer has quite the same new-rule smell. Compare "consideration" (for contracts), which has functioned a good long while, but isn't applied universally, and might be breaking down.
It's a kind of technology. Best case, our advances keep pace with our needs.
But the _pursuit_ of universality, as a principle for rulemaking, has lasted a good long while. The further we get from the incisive "moment of truth" for a rule, the less "just" it feels in application. The more the exceptions and uncertainties, the more we suspect corruption and discrimination. In other words: The more a rule shows its age, the more those who do not (and, practically, cannot) understand its subtleties perceive it as arbitrary.
It's a somewhat indulgent, idealistic line of thought. But it gives me hope. Thought I'd share.
Is it "doublethink" to know the legal system is flawed while believing it _ought_ to be better? Perhaps I'm laboring under "the myth of professional success"? But don't I just aspire to it?
As for this doublethink, I personally don't hear many strongly held generalizations about how the legal system works "under the hood". When I do, the word is either that it's utterly mysterious, or that lawyers don't do much of anything at all. Not that they do so with any particular rigor.
Perhaps among academics it's different. The folks I hear and read mostly just complain about cost and poor communication.
And the same could be said of auto mechanics. And programmers. Crises?
“I suspect that in many ways a free market in law would resemble the situation in Medieval Europe” — I’m an emigrant from such country. Sometimes funny place to visit, impossible to live, hard to do business.
“Disputants could select among several fora” — the author forgot about one very important “if”. Disputants could select among several fora IF they were from the same social class.
The fun starts when they’re from different social classes. In nowadays Russia, a public prosecutor or a police officer can literally kill whomever he wants. Unless the victims were from equal or higher social strata, 99% such cases will be closed, 1% will be presented to a court like “a person assaulted a public prosecutor and was shot dead as a reasonable self-defense act”.
The western society isn’t stratified that much, almost no one thinks it’s OK to kill people regardless of how many stars are on the killer’s epaulets.
However, there are still many cases with great asymmetry between two dealing parties.
Like when you buy electricity for your home.
Don’t you think your electricity supplier would love to add “no disputes are allowed, I’m the final authority” to your contract, if they could? If you don’t like that contract, they don’t care — you only bring 0.00001% of their income, however they bring you 100% of your electricity, and in many places you don’t even have much choice.
The law is very logical, in the way applied mathematics is very mathematical. I've a hobby of getting fellow lawyers started in programming. There's nothing to teach them about boolean logic but some new symbols. Most have all the instincts for set theory and even graphs, too. Intellectually, those're just a few of the tools they couldn't function without.
The United States legal systems are massively distributed, fault tolerant, resource starved systems that consume exclusively dirty input from malicious users. Like any system that consumes unstructured input, the uncertainty inherent in how the facts of a situation get mapped to structured conclusions ("questions of fact"), and how the legal rules operate on those inputs ("questions of law") to produce a result, are all infected with that uncertainty. Few of the facts the system is meant to deal with reduce to anything so discreet as bitstrings. Legal rules in statutes and even in case law, like the bit of First Amendment in the article, start out trying to state rules with all the rigor of a pure function. But law is a highly dynamic, reprogrammable language. It's Ruby, not C. The statutes aren't the running state, they're just input.
That's partly why I still program to relax after work. It's satisfying to address little bits of a problem in isolation, to see my solutions work, and to know they're reliable. Problem solved.
"The law is very logical, in the way applied mathematics is very mathematical."
So applied math is not mathematical? Or are you being sarcastic? I don't understand how you can claim the law is logical when it's constituted of laws and cases that are completely contradictory and can lead to any conclusion. Or do you mean that practicing law requires logical skills (rather obvious, IMO)?
The law is concerned primarily with the practical application of logic. Logic is a core tool of legal practice, but the day-to-day of practice is mostly grappling with the uncertainty that comes of applying generalized law to specific circumstances. At a very high level, you could compare it to engineering, especially on the transactional side.
Legal theorists---the mathematicians of the legal world---can stick to the pure forms, and even consider ones with no practical application, without pesky clients dragging them back to earth. They often get to use more of the arcane, cutting-edge tools of logic, which is also a branch of philosophy IMO.
At least speaking of the American legal system I deal with, laws and cases don't lead to just any conclusion. (I would call such a system "arbitrary", rather than "illogical".) Outcomes are rarely certain, but every time you read about especially civil litigation, you're usually reading about a case where at least two sides made big bets they were right.
A few thoughts on inherent contradiction:
1. Statutes, regulations, and cases cant' be read off the page and understood. They're just inputs to a system. For instance, statutes are routinely read very restrictively to avoid conflict with other statutes with greater authority. Some states will mark laws that are struck down accordingly in their statute books, but some don't.
2. When lawyers speak of "The Law", they usually don't just mean written, statutory law, or even case law. They're referring to the mass of probabilistic hypotheses informed lawyers hold about how courts and other institutions will react to regulated situations. Lawyers maintain running odds on various outcomes that matter to their clients by consuming legal input: reading case reports, monitoring new legislation, trading stories with colleagues. A very rigorous logic determines how those inputs affect the odds under which we all play. It's not simple boolean logic. It's much more developed than that.
>The United States legal systems are massively distributed, fault tolerant, resource starved systems that consume exclusively dirty input from malicious users.
> They are obviously aware that the law is inherently political... [yet this] in no way prevents people from simultaneously regarding the law as a body of definite, politically neutral rules amenable to an impartial application which all citizens have a moral obligation to obey.
Why should it? There's no law that says rigid absolutes can't come from chaos. Look at quantum mechanics: a bunch of seemingly random nanoscopic reactions come together to form an elegant predictable macroscopic world. And why can't it be neutral? If the Wisdom of the Crowd theory holds any weight (hint: it does) the misconceptions and biases of a large group of people should cancel out leaving us with the correct, or in this case most neutral, answer.
Now, of course, there's no denying law is highly political for reasons that extend beyond Congress being highly political. That said, this is understood by most people. Did you know TRAP laws aren't actually designed to mark abortion clinics safer but to make abortions more difficult? So did everyone else that follows the issue!
I'd encourage you to read a bit more on arbitration. The more people know, the less they tend to see it black-or-white.
Arbitration is routinely used to place contract parties at an unfair disadvantage in dispute resolution. It is also routinely used to avoid and compensate for various shortcomings of the publicly administered, publicly funded judicial system, which takes years to decide most anything, without the benefit of any experience in the area. Arbitration also plays a roll in international disputes, especially for business in countries without effective legal systems. If you're Russian in 1992, you're not going to attract billions in outside investment in reliance on your local legal system.
If you'd prefer a high-level metaphor to start: It's perfectly possible to believe folks should have access to both public and private mail carriers. Perhaps, as in the US, certain kinds of mail service should only come from the government; that's up for debate. Maybe certain kinds of mail service shouldn't be offered at all, like mailing children or dangerous chemicals.
Right now it's possible to litigate publicly (in court) and privately (arbitration). Consumer and other less-powerful parties can agree to arbitrate, but courts are very skeptical of such contracts. On the other hand, if you want to change what public law means for the public at large, you have to litigate publicly. Neither do we arbitrate criminal matters, though some plea bargain processes come close, engendering much controversy.
If you asked me 20 years ago when this article was written, and the practice less commonplace, I'd have been more optimistic and open minded about it.
And I agree that contract disagreements between parties can be more easily settled through a 3rd party with concurrence of those involved. But this assumes that both parties have roughly equal resources and can't game the venue.
Our increasing use of private law (including HOAs and similar types of agreements listed as examples) seems to have absorbed many of the drawbacks of the systems they supersede while not having that "pomp" that socially-ingrained Law with a capital 'L' has surrounding it; that which otherwise empowers the middle-managers of the practice to sometimes interpret the law in the favor of those with fewer resources.
In private law it's the financial bottom line (who's paying for this service?), personal whims, groupthink-- forces unchecked because the practitioners or those coerced into it have no expectations it should be different.
As far as I know, we have no public arbitration services that are paid for by taxes or charity for the benefit of those who choose to use it as an alternative to the state-based justice system.
What's so bad about that? Do you think it's better to have disputes between two parties resolved by a third party that was not agreed upon by the two parties?
Rule of law can be understood first by taking apart the linguistic construction, and then by examining the political conditions under which it emerged. Society is to be ruled by laws, not people. This is not trivial to accomplish. As they say, freedom isn't free, and neither is rule of law.
I could not take this article seriously because it tries to understand rule of law by actually examining law, rather than by examining law's place in society. Rule of law is an appellation given by historians to describe a society, not a specific legal concept.
Whatever ideological construct we want to order society by, a part of that society has to be dedicated to actually enforcing that construct. Medieval England had an innovative institution dedicated towards adjudicating disputes that came to be known as common law. Local magistrates collaborated to create a body of judicial decisions and understandings that other magistrates would respect.
This freed law from the vagaries of local and national politics. The norm in the rest of the world was that both judges and the law were the sole domain of the monarch. The monarch picked the judges and the laws and that was that. What allowed English crowdsourced jurisprudence to flourish was that it was protected by England's other major innovation, Parliament. Parliament held the purse strings of the national budget, and the king had to ask Parliament for money whenever it needed to do things like raise an army. Without Parliament's approval, the king was limited to using his own land holdings to finance his affairs. In most of continental Europe, the king was free to tax the citizenry directly using the army to enforce collection.
What allowed England to do this was its relative isolation from the rest of Europe, this allowed England enough safety and security to not need a standing, national army. Instead England was free to iterate on this body of law and produce a diverse array of commercial contracts that allowed people to collaborate on business ventures on a scale the world had never seen before.
It also allowed England to, eventually, displace the monarchy as the ultimate seat of power in their society, replacing that role with the Prime Minister, who had to rise through the political ranks to his office. Continental Europe needed their monarchs to pursue national defense, as every European nation was at constant risk of invasion. Failure to do so resulted in getting conquered, as Spain was throughout much of the Middle Ages. Civic institutions never achieved the democratic buy-in that they did in England.
I have written before that rule of law, as we consider it, is a uniquely Anglo institution, the British exported their legal innovations everywhere they went. Not having to worry too hard at appeasing their kings gave British citizens unprecedented ability to contribute to local government. Government itself was viewed as just another type of legal organization, when establishing a colony, there was a well-trodden map to governance that was established by Parliament and slowly perfected over the course of the colonial period.
It is this series of innovations in the role of government in society over the course of history that provide Anglo nations with rule of law. The term was never intended to carry the connotations I often see people ascribe to it. It is not a property of law, but a property of the society using law. I see it as having been baked into the very fabric of Anglo society. I do not take seriously falling-sky pronouncements that the rule of law is under attack by whatever nefarious political actor. Certainly, we are running hard into the limitations of our legal institutions, but that's a product of their continued success. It's a resource allocation problem, not one of defense from attacks without or within. Eventually the institutions will evolve to meet those needs.
I'm not sure I agree with you about not treating seriously the issues of rule of law being under attack. As you said, it's not a piece of legislation, it's a feature of a society. But like most things in a society, it works because people trust in it. Living under the rule of law makes me inclined to follow the rules because I know everyone else will play ball too, and those who try to gain an unfair advantage will be punished. That the system is not always efficient - hence some amount of crime and corruption - is something people generally understand and can live with. But when one sees that law gets applied unevenly, that people "dedicated to actually enforcing that construct" can't handle the issue or are themselves corrupt, when some get rich by having companies that blatantly break the law and get praised for it, one starts to wonder why they're following the rules in the first place. I see the rule of law as something that can very well break down fast when the public loses its trust in it.
--
An interesting theme in your comment is how geography led to the creation of the rule of law and moving away from absolute monarchy. England could develop those because it was relatively safe, while the rest of Europe was constantly fighting fires. It's a lesson about the importance of stability - when you don't have to keep fighting for what you have, you can focus on doing something else. This is one of the reasons I don't buy the libertarian dream - having to constantly fight for your interests is a tax on attention. We progress by abstracting things away, even if imperfectly.
> But like most things in a society, it works because people trust in it. Living under the rule of law makes me inclined to follow the rules because I know everyone else will play ball too, and those who try to gain an unfair advantage will be punished.
I can't emphasize enough that rule of law isn't just having laws or having people respect the law. It's specifically about powerful people and what they can and can't do. Every battle we can point to fought over what we traditionally call rule of law has been about the relatively less powerful clawing freedom and opportunity away from the rich.
If you look at it in this regard, it's easy to see that rule of law has only evolved and grown since the 1700s. There are ever more opportunities to climb the social ladder in ever more places. We've given women the vote, we've made good strides against racism. The Magna Carta mostly only protected rich landowners from the predations of the monarchy.
Britain's battles concerned the ability to enter into contracts, freedom from arbitrary, executive-driven faux-judicial action. The kinds of shenanigans that kings pulled to keep people in line and fund its operation. The poor weren't concerned because they didn't have anything to take, no way to alienate the king.
When I look at the battles these days, I see nothing but steady, constant progress in attempting to allow every person the opportunity to thrive.
Much of what we think of as evil now was quite common in colonial times. Only the steady march of rule-of-law improvements eradicated such abuses.
Another thing that a lot of people don't realize is that the Bill of Rights had very little judicial impact until civil rights movements forced the judiciary to actually consider that just having a democratically elected republican government is not enough to safeguard minority rights. The idea of minorities having inalienable rights would have been utterly strange in colonial Britain. One had exactly as much protection from the powerful as they could afford.
Rule of law was progressive in implementation. First from the king to the nobility, then from the king and nobility to the merchant class, then finally to everyone through civil rights.
> Unless your responses were: 1) False, 2) True, 3) True, 4) False, 5) True, 6) True, and 7) True, you chose to interpret at least one of the words "Congress," "no," "law," "speech," and "press" in what can only be described as something other than its ordinary sense. Why did you do this? Were your responses based on the "plain meaning" of the words or on certain normative beliefs you hold about the extent to which the federal government should be allowed to interfere with citizens' expressive activities? Were your responses objective and neutral or were they influenced by your "politics"?
These days you read a lot of comments about courts "ignoring the Constitution." I don't imagine those same people were upset when the Supreme Court "ignored" the word "speech" in striking down restrictions on video game sales, or conjured up a "right to privacy" that it could not place anywhere within the text of the Constitution.
That said, law being political does not mean that adherence to rules is unimportant. The "rule of law" means that people are willing to abide by legal decisions. That willingness depends on judges at least justifying their decisions in terms of broadly-accepted rules.