by John Tyler, JD, PhD
Two troubling trends have radically transformed American jurisprudence since the 1950s. The first is the separation of law from morality, which produces unjust laws. The second is judicial activism, which destroys liberty.
This is the second of two essays on these trends. The first essay discussed the necessity of moral laws. Justice is a moral concept, and separating law from morality produces unjust laws. Unjust laws inevitably produce horrific consequences, as demonstrated by the unjust laws imposed by Stalin and Hitler.
This essay explains the necessity of sovereign laws. Sovereign laws have three properties that protect liberty. As explained below, judicial activism destroys all three of these properties. Judicial activism thus destroys liberty by destroying the sovereignty of law.
Representative republics cannot be maintained without just and sovereign laws. These trends must be reversed, and Christian universities must play a pivotal role in reversing them. Christian universities must cultivate their students’ minds by teaching the necessity of just and sovereign laws.
Even more importantly, Christian universities must cultivate their students’ hearts by instilling the political virtue required to maintain our republic and our liberties. The best possible laws cannot maintain our republic in the absence of political virtue. Political virtue, on the other hand, can turn the worst laws to its advantage.
A. Three properties of sovereign laws
Sovereign laws have three properties that protect liberty. First, sovereign laws wield supremacy over political magistrates. Second, sovereign laws bind magistrates to the same extent that they bind the public at large. Third, magistrates must enforce sovereign laws. Rulers may not suspend enforcement of laws they dislike.
These three properties of sovereign laws preserve society. As explained below, no government is possible without sovereign laws. Rightly constituted laws must be the final sovereign. Only sovereign laws can establish a government of laws rather than men, and only a government of laws can protect liberty.
B. The necessity of sovereign laws
Sovereign laws are necessary to preserve society. Plato writes in the “Laws” that the preservation or ruin of a society depends on sovereign laws more than any other factor. Sovereign laws are a society’s salvation, but their absence brings the society’s destruction. (“Laws”, 715d-715e). Plato writes in the “Statesman” that sovereign laws are the only means by which governments can govern with true statecraft. Governments must therefore keep strict obedience to established laws and customs. (“Statesman”, 300e-301a). Plato considers the sovereignty of law so important that his primary criterion for selecting magistrates is their obedience to established laws. (“Laws”, 715c-715d).
Rightly constituted laws must be the final sovereign. Aristotle explains that rightly constituted laws must be sovereign because laws make better rulers than men. (“Politics”, 1282a). Human beings are susceptible to corruption by passion. Man beset by passion is the worst of all creatures, and even the best of men are subject to corruption by passion. (“Politics”, 1281a).
Law, on the other hand, is reason liberated from passion. The rule of law is therefore preferable to rule by any individual. (“Politics”, 1287a). Personal rule should be limited to contingencies the laws did not foresee. (“Politics”, 1282a). Aristotle concludes in the “Politics” that no government is possible without sovereign laws. (“Politics”, 1292a).
No true state can exist without a sovereign set of valid laws. Cicero writes that valid laws distinguish between justice and injustice. (“Laws”, 2.13). Cicero agrees with Aristotle that no constitution can exist without a sovereign set of valid or “rightly constituted” laws. Magistrates must respect the sovereignty of valid laws. (“Laws”, 2.13). A state without valid laws does not deserve the name of state. (“Laws”, 2.12).
Magistrates must be subject to laws, just as people are subject to magistrates. (“Laws”, 3.2). For Cicero, “a magistrate is a speaking law, and the law is a silent magistrate.” Magistrates who rule contrary to the law become unjust tyrants. Echoing Aristotle, Cicero likens such rulers to beasts. A tyrant is “the foulest most repellent creature imaginable,” “the most abhorrent to god and man alike.” “Although he has the outward appearance of a man, he outdoes the wildest beasts in the utter savagery of his behaviour.” (“Republic”, 2.48).
Establishing and maintaining the sovereignty of law is a continuous and never-ending struggle. Magna Carta established the sovereignty of law over the English king and all his magistrates in 1215, and Henry de Bracton’s treatise “On the Laws and Customs of England” proudly proclaimed the sovereignty of English law in 1235. In England, De Bracton wrote, the laws make the king. The king does not make the laws.
During the seventeenth century, however, the four Stuart kings persistently violated the sovereignty of law in their quest to establish an absolute monarchy. The struggle to restore the sovereignty of law in England lasted from 1603 until 1689. The struggle required three civil wars and the Glorious Revolution. The American Revolution resulted from England’s violating the sovereignty of English law in her dealings with the colonies.
C. The US Constitution establishes the sovereignty of law
The text of the United States Constitution fulfills all three requirements of sovereign laws. The first requirement of sovereign laws is that laws wield supremacy over magistrates. The Supremacy Clause of Article VI, Clause 2 fulfills this requirement as follows:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
The second requirement of sovereign laws is that the law binds magistrates to the same extent as their subjects. The Due Process Clause of the Fifth Amendment fulfills this requirement for officers of the federal government:
No person shall be … deprived of life, liberty, or property, without due process of law;
The Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment fulfills this requirement for officers of the state governments:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The third requirement of sovereign laws is that magistrates cannot suspend enforcement of the laws. The Take Care Clause of Article II, § 3 fulfills this requirement by requiring the President to “take care” that the laws are faithfully executed:
[H]e shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.
D. Judicial activism destroys the sovereignty of law
Although the Constitution establishes the sovereignty of law, the struggle to maintain the sovereignty of law never ends. In the United States this struggle now centers on judicial activism in the federal courts. Judicial activism is anathema to the western legal tradition. It involves judges’ substituting their private judgment for the text of the Constitution and the provisions of state and federal laws.
Judicial activism destroys all three properties of sovereign laws. Laws do not wield supremacy over activist judges. Laws do not bind activist judges, and activist judges ignore existing law at will.
The Western legal tradition has condemned judicial activism since the second century BC. Justinian’s Institutes (A.D. 535), which codifies Roman law, states that a judge’s highest duty is to rule in accord with the statutes, the constitution, and legal customs. (“Institutes”, 4.17). Any judge in the Roman Empire who violated this duty was deported.
Blackstone’s “Commentaries on the Laws of England” (1765) explains that judges in the common law tradition only find law; they never make law. Judges swear to decide cases, not by their own private judgement, but according to the known laws and customs of the land. Judges should not pronounce a new law. They must maintain and expound the old one. (“Commentaries”, § 70).
The reason for this rule, recognized by both Montesquieu (“The Spirit of the Laws”, 11.6) and Blackstone (“Commentaries”, § 142) is that giving the same magistrate the power both to make law and to enforce law invites tyranny. Any magistrate that enacts a tyrannical law will also enforce it tyrannically.
Establishing and maintaining the sovereignty of law is a continuous and never-ending struggle, and controlling judicial activism is an essential element of this struggle. Judge Robert Yates, a delegate to the Constitutional Convention for New York, predicted our modern era of judicial activism in 1788. Writing as “Brutus” during the ratification debates, Judge Yates warned that the Constitution did not provide adequate checks and balances on the power of the federal judiciary, particularly the power of Supreme Court justices.
“There is no authority that can remove them,” wrote Yates, “and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.” (Essay XI, 31 January 1788).
Brutus predicted that federal judges, particularly Supreme Court justices, would exploit the lack of adequate checks and balances on their power and transform the structure of the republic in four steps. First, the Supreme Court would evade or ignore the text of the Constitution. In interpreting the Constitution, Supreme Court justices would not confine themselves to the letter of the Constitution or to any fixed or established rules. (Essay XII, Part I, 7 February 1788).
Second, the federal courts would expand their jurisdiction to increase their power. Federal judges would lean strongly in favor of the federal government. Federal judges would interpret the Constitution in all cases to enlarge their sphere of authority. Federal judges would always interpret the Constitution to extend the power of the federal courts. (Essay XI, 31 January 1788).
Third, the federal courts would extend the federal government’s legislative power. This, in turn, would increase the powers of the federal courts. (Essay XI, 31 January 1788). Federal courts would authorize Congress to do anything which the courts judged would provide for the general welfare. The effect of these decisions would be to grant Congress a general and unlimited power to legislate. (Essay XII, Part I, 7 February 1788).
Fourth, federal courts would “silently and imperceptibly” subvert the legislative, executive, and judicial power of the states, severely diminishing the power of state governments to make and execute laws. Federal courts would always limit the powers of the states. Federal courts would take from the state governments every power of either making or executing laws. Lastly, federal judges would construe the Constitution so that states would lose their rights “until they become so trifling and unimportant, as not to be worth having.” (Essay XI, 31 January 1788).
Each of Brutus’ predictions have come true. Decisions by the US Supreme Court have transformed our government, just as Brutus predicted. The US Supreme Court quickly ignored the text of the Constitution to grant itself a power of judicial review, first over the executive and legislative braches of the federal government, and then over all three branches of state governments. It expanded Congress’ power under the Commerce Clause to empower federal legislation governing any activity that impacts interstate commerce, however slight that impact might be. The effect of these decisions is to give Congress an almost unlimited legislative power, just as Brutus predicted.
The separation of powers and federalism are essential to ordered liberty. Nevertheless, the Supreme Court ignored the separation of powers by nullifying the non-delegation doctrine. These decisions permit unelected regulators in the executive branch to impose regulations that have the force of law. These regulations are promulgated by executive fiat, without debate or approval by Congress.
The Supreme Court destroyed federalism by nullifying the Tenth Amendment. It has also prohibited states and individuals from challenging actions by the federal government that violate the Tenth Amendment. The Supreme Court also destroyed federalism by assuming the power to regulate state laws by the doctrine of incorporation under the Fourteenth Amendment.
E. The necessity of political virtue
Montesquieu defines political virtue as the love of the laws and country. Political virtue directs ambition to the desire to serve one’s country and one’s fellow citizens. It requires a constant preference of public to private interest. Political virtue is thus “a self-renunciation, which is ever arduous and painful.” (“The Spirit of the Laws”, 4.5, 5.3).
Montesquieu writes that in a republic “everything depends on establishing this love, and education should attend to inspiring it.” Instilling political virtue in young people is extremely difficult. It cannot be done without the full force of education. (“The Spirit of the Laws”, 4.5). This is the role that Christian universities must fulfill.
When political virtue is lost, love of the laws is lost, and the representative republic will then cease to follow its constitution and enforce its laws. As Montesquieu observes, “as this can come only from the corruption of Republic, the state is already lost.” (“The Spirit of the Laws”, 3.3). Avarice and ambition replace love of country. People who were once free under the laws now want to be free against them. “Formerly the goods of individuals made up the public treasury; the public treasury has now become the patrimony of individuals. The republic is a cast off husk, and its strength is no more than the power of a few citizens and the license of all.” (“The Spirit of the Laws”, 3.3).
Patrick Henry said that bad men cannot make good citizens. No free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue. (Address to the Virginia Convention in Richmond, March 23, 1775). Washington observed that “no wall of words, no mound of parchment can be formed to stand against boundless ambition aided by corrupted morals.” (Proposed Address to Congress, April 30, 1789).
Christian universities must prepare our students’ minds by teaching them the need for just and sovereign laws. Even more importantly, Christian universities must prepare our students’ hearts by instilling the political virtue required to maintain our republic and our liberties. The best possible laws cannot maintain our republic in the absence of political virtue. Political virtue, on the other hand, can turn the worst laws to its advantage.
About the Author
JOHN TYLER, Jr., JD, PhD, is an Associate Professor at Houston Baptist University. Dr. Tyler practiced commercial, civil rights, and toxic tort litigation in Texas for thirty-five years and is the author of multiple award winning leading articles in law journals.