By and large, America has enjoyed the rule of law, not men. No president in the United States has ever tried to make himself a dictator or illegally extend his term. Martial law – a suspension of the law and administration of justice by military authorities in times of war, rebellion and disorder – has never been declared nationwide. No party or faction has ever taken control of the federal government by force or force. The U.S. Constitution has never been successfully abrogated or flouted on a large scale. Thus, the rule of law has generally ruled the country since 1787 – a record that applies to very few other countries in the world. That the British turned their backs on their own tradition and respect for the rule of law was the main accusation of American colonial rulers. In his famous pamphlet The Rights of the British Colonies Asserted and Proven (1764), James Otis wrote: First, the Constitution is founded on the conviction that the only legitimate constitution is that which emanates from and is controlled by the people. A constitution is therefore more than a body of substantive rules and principles.
As Thomas Paine wrote, “A constitution is not the act of a government, but of a people forming a government, and a government without a constitution is a power without law.” This principle is proclaimed in the preamble to the Constitution, which proclaims that the Constitution is not ordained and established by the government, but by “We the people”. To say that Parliament is absolute and arbitrary is a contradiction. Parliament cannot do 2 and 2 [equally] 5. Parliaments should in all cases explain what is good for the whole; But it is not Parliament`s statement that does that. In any case, there must be a higher authority – God. If an Act of Parliament were to violate any of its natural laws, which are invariably true, its declaration would be contrary to eternal truth, equality and justice and, therefore, null and void. Thus, the nation ultimately sees the president as the person ultimately responsible for upholding the rule of law and the primacy of the constitution. By appointing him as commander-in-chief of the armed forces and giving him the power to supervise the heads of the various departments of the executive branch, the Constitution also empowers the President to exercise his law enforcement functions. When enacting what should be the supreme law of the land, the constitution is mentioned first; and not the laws of the United States in general, but only those which must be promulgated under the Constitution, have this rank.
Federalism, the separation of powers, and the rule of law are at the heart of the U.S. Constitution. But there are also other fundamental principles of the system, all of which contribute significantly to the realization of freedom, order and justice. If we look at the Constitution as a whole, as the drafters perceived it, we find that its essential characteristics are as follows: The America of 1787 inherited from medieval England the concept of the rule of law, sometimes expressed as “a government of laws, not men.” The rise of this principle in English history dates back to the signing of the Magna Carta in 1215, when King John found it necessary to guarantee his obedience to English laws. By the way, medieval English legal authors derived their understanding of the rule of law from ancient Roman jurisprudence. But the Philadelphia drafters sought to create a federal government in which the rule of law prevailed and where the men in power were so reserved that they would neither ignore nor neglect the law of the land. The U.S. Supreme Court was supposed to be a watchdog of the Constitution that could protect the purity of the law and insistently point out circumvention or violations of the law by other branches of government or by men in public office. Thus, the rule of law is not a rule of law, but a doctrine about what the law should be – a set of norms, in other words, to which laws should conform. It is not because a tyrant calls his arbitrary orders and decisions “laws.” The test is not the name of the rule, but if the rule is general, known and safe; and also if it is prospective (applies to future behavior) and applied equally.
These are the essential characteristics of good laws—laws that restrict, but do not oblige, and give each individual enough space to be a thoughtful and grateful person and to carry out their own plans and plans. This does not mean that individuals are free to do what they want; Because freedom is not a license. As the drafters well knew, absolute freedom would be the end of freedom, making it impossible for society to respond in an orderly manner, free from crime, free from foreign attacks, and to respond effectively to the physical, material and spiritual needs of its members. Under God, the rulers of the rule of law said, the law governs us; We should not be governed by mere men; We can appeal to the immutable law through the whims and whims of human leaders. This means that no one, no matter how powerful or talented, can be allowed to act as if they are superior to the law of the land. Public decisions must be made on the basis of the law, and laws must be general rules to which everyone obeys, including those who promulgate and apply the law. A law that violates the Constitution is not a law and therefore will not be enforced. This is the principle followed by Marshall in Marbury v. Madison.
Similarly, the rule of law means equality before the law. A law that selects certain people for discriminatory treatment or that is so vague and uncertain that we cannot know what it requires is not treated as a law. Third, the Constitution was based on the assumption that any constitutional government is, by definition, a limited government. A constitution is a legal, not just political, restriction of government; It is considered by many to be the antithesis of arbitrary rule; Its opposite is a despotic government, the government of will instead of law. Parliamentary supremacy, which equates all law with legislation, is therefore hostile to the US Constitution, which declares that the Constitution should be the supreme law of the land. “The king himself must not be among men, but under God and under the law, for the law makes the king. Therefore, the king will render to the law what the law gives him, that is, dominion and power; for there is no king where the will, and not the law, exercises the rule. Henry de Bracton, “the father of English law”, wrote around 1260, during the reign of Henry III. This doctrine that law is superior to human rulers has consistently permeated English politics and jurisprudence over the centuries. It has been claimed from time to time by the English colonies in North America in a rather bellicose manner.
The concepts of the rule of law and constitutionalism are clearly linked, even if they do not mean the same thing or refer to the same phenomena. Although the two ideas are often equated, according to Ten, constitutionalism “generally refers to certain constitutional instruments and procedures, such as the separation of legislative, executive and judicial powers, the independence of the judiciary, due process for fair hearings for those accused of crimes, and respect for individual rights, which are partly constitutive of a liberal democratic system of government.” And the rule of law, on the other hand, “embodies certain norms that define the virtues characteristic of a legal system as such.