'Spirit' of Law More Important than its 'Rule'

SEPTEMBER 19, 2005
By GREGORY J. RUMMO

...It is men who interpret the law and the rule of law is somewhat malleable depending on a litigants’ agenda, political or otherwise.  

           During the confirmation hearings for Chief Justice Nominee John G. Roberts, I was struck by the number of times his inquisitors tried to pry information from the Judge only to be reminded that their line of questioning came close to a potential, future case about which he might be called on to issue an opinion. Not wanting to tip his hand, Judge Roberts deferred from answering the senators’ specific questions but made it plain that he would judge each case on its own merits and by the “rule of law.”

            An often repeated quote is that “America is a nation of laws not of men.” But it is men who interpret the law and the rule of law is somewhat malleable depending on a litigants’ agenda, political or otherwise.

            Recall Bush vs. Gore in 2000. All we heard for a month was the phrase, “the rule of law.” Yet, it was only half the country that felt vindicated when the dust settled and George W. Bush was sworn in as the 43 President of the United States.

            Underlying the rule of law is the spirit in which that law was given. To ignore this spirit—a law’s original intent—is to miss its meaning and subsequently misapply its remedies. So the issue then, is not so much what the law states explicitly but who or what decides its spirit.

Author and historian, David Barton explains that the question is not “whether the Constitution should evolve, but rather how those changes should occur—and who should make them.

            The Declaration of Independence is a good starting point in understanding the spirit of American jurisprudence.

            When Thomas Jefferson wrote “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness,” he was stating that human laws were ultimately based on rights given to us by the Creator and that none could be abridged by any other law.

            James Wilson, a signer of the Constitution and a U.S. Supreme Court Justice wrote, “All [laws]…may be arranged in two different classes; Divine [and] Human…But it should always be remembered that this law, natural or revealed, made for men or for nations, flows from the same Divine source: it is the law of God. . . . Human law must rest its authority ultimately upon the authority of that law which is Divine.”

            The Apostle Paul was a brilliant orator. Trained under Gamaliel, a celebrated doctor of the Law, Paul was a “Pharisee of Pharisees.” He understood that the Law itself could be an instrument of death in the hands of those who did not understand its original intent. He explained that it was the spirit of the law that “gives life,” but the letter alone “kills.”

            In his opening statement during the Senate confirmation hearings, Senator Joe Biden described the “genuine intellectual struggle” taking place in America now over the courts and their proper role in American government. He went through a laundry list of “terrible mistakes;” among them, racial segregation; that took years to undo until the courts “ultimately…” “eventually…” and “finally got it right.”

            Biden may have been arguing for judicial activism, but I think he unwittingly made a case for original intent. In each of the cited cases, the spirit of the law—“all men are created equal”—was initially violated then, applied correctly years later.

            But the underlying assumption of this entire argument is that the courts are the best arbiters of these sticky cases and not the people themselves.

            It should not be forgotten that laws are made by the legislative branch. Since Congress derives its powers “from the consent of the governed.” It is you and I that are the lawmakers in America.

            While it took the courts decades to “finally get it right” on the issue of civil rights, “We The People” had already spoken. It was the courts that had struck down our will.

David Barton explains: “the courts have a very poor record of protecting minority rights. Although living constitution proponents love to point to the 1954 Brown v. Board of Education decision that ended segregation as proof that the courts protect minority rights, they conveniently forget to tell the rest of the story. In 1875, Congress — by majority vote — banned racial segregation, but in 1882, the unelected Supreme Court struck down that anti-segregation law; in 1896, the Supreme Court reaffirmed its pro-segregation position; but in 1954, the Court finally reversed itself and struck down segregation—eighty years after ‘We The People’ had abolished segregation.”

That we as a nation have become so focused on “judicial activism” is not only a reflection of just how powerful the courts have become but also of how poorly we understand our own history and our own rights and powers as citizens. n