DO WE STILL HAVE A RULE OF LAW
by William Bentley Ball
Thomas Babington Macaulay, writing in the mid-19th century, spoke of the
perdurance of the idea of a Rule of Law in England. "Our laws and customs,"
he said, "have never been lost in general and irreparable ruin. With us the
precedents of the Middle Ages are still valid precedents, and are still
cited, on the gravest occasions, by the most eminent statesmen."
The American Bar Association, and state bar associations from coast to
coast, frequently remind the public that we Americans live under a "Rule of
Law." Many local bar associations celebrate an annual Law Day, and speakers
at these affairs exult in the superiority of American society over most
other societies for its fidelity to the idea of a Rule of Law. We lawyers
take some pride in these affairs (humble though we characteristically are),
since we feel that it is we, the legal profession, who should have chief
credit for the existence of an American Rule of Law. But we might do well
to ponder, at times, what "Rule of Law" really means. I think there is no
time like the present to indulge in that inquiry.
At once come to mind two places in which we say, with confidence, that no
Rule of Law exists-Rwanda and China. In Rwanda there are no laws which
anyone observes. China has nothing but laws, even laws criminalizing
childbirths which the government deems excessive. In Rwanda people are lost
in chaos. In China they are trapped in the hard amber of absolute state
The Rule of Law as envisioned by the framers of the American Constitution
contemplated neither a society of freedom from laws nor a society of all
laws and no freedom. Nor, however, was contemplated a via media between a
Rwanda and a China-a little more law than the former, a little less law
than the latter-a limited statism. Our founders, although marvelously
practical, pragmatic, and saturated with knowledge of British politics,
created a structure of secular government which was hinged upon a
transcendent principle. That principle was stated in the preamble to the
preamble of the Constitution: the remarkable words of the Declaration of
Independence. The declaration said that there are "truths," that these are
"self-evident," and that there are "rights" which are "unalienable" because
people are "endowed [with them] by their Creator."
It is the fashion of some to scorn that declaration; of many, to ignore it.
But demonstrably indeed, it states what we Americans have taken, until very
recently, to be the very substance of the Rule of Law. A seminal scorner
was the late 18th century's Jeremy Bentham, who believed that all power
should be found in legislative codes-hence that majorities are the final
source of anything called a "right." If this concept is correct, then we
are plainly all at peril. The founding fathers rejected this concept and
provided for a Bill of Rights and also for a judicial branch. A legislative
act, regardless that it reflected the will of a majority, could be voided
by the courts if it violated a provision of the Bill of Rights. This
provided an immense support to the existence of a Rule of Law in our
country because it put a brake on arbitrary rule by majorities.
But constitutions are the fallible writings of fallible human beings. Today
two major developments in Supreme Court interpretations of the Constitution
need our earnest attention, because they represent threats of extreme
consequence to our prized Rule of Law.
The first of these developments relates to the court's recent opinions on
that provision of the First Amendment designed to protect the free exercise
of religion. Until recently the settled rule was that government could not
impose upon the free exercise of anyone's religion without having to prove
that its action was justified by a supreme societal interest (a "compelling
state interest," as the court called it) and that, even if such an interest
is proved to exist, government must show that its action is the least
restrictive means it can find to achieve that interest. You will note the
justice inherent in this rule. It is government which must meet that dual
burden of proof. Religious parties coming before courts often lack the
financial resources and attorney resources which government possesses.
Further, religion is so highly esteemed in our constitutional system that
it is not to be put at peril by unrestrained actions of legislatures or
bureaucracies. In 1990, the Supreme Court, in , a case of offbeat facts involving Native Americans who smoked
peyote in religious ceremonies, scrapped the historic "compelling state
interest - least restrictive means" rule and held that governmental action
can override religious claims simply if that action is religiously
"neutral" and is "of general application." Let me give you a chilling
example of how that new rule can play out:
Suppose that Texas adopts a statute requiring all high schools to provide
all children enrolled with condoms. Religious schools object on moral and
religious grounds. They challenge the law in court as violating their Free
Exercise rights. The court, following the Smith rule, will require the
statute to be enforced. It is "religiously neutral" (doesn't attack any
religion, doesn't even mention religion). It is "of general application"
(applies to all schools, public, private, and religious).
The Smith decision caused religious groups throughout the country to rise
to protest this unfortunate action of the Supreme Court. Last year, that
protest resulted in passage by Congress of the Religious Freedom
Restoration Act. That act commands our courts to go back to the "compelling
state interest- least restrictive means" test. We can be very happy over
this. But the horizon is not yet clear. The Supreme Court may decide that
it will not take dictation from Congress as to how it shall interpret the
Constitution. Further, there is, unfortunately, a weasel word which got
into the text of the new act. That is the word "substantially"-the act
reading that only if governmental action "substantially" interferes with
religious liberty, is that action challengeable. While our courts, in the
past, did a very good job in spotting fraudulent religious claims and
throwing them out, this new statutory word may lead judges to feel that
they have a large license to determine religious questions. In a case I
handled years ago, involving criminal prosecution of Amish parents for
refusal, on religious grounds, to enroll their children in high school, the
state made a great point of saying that, in its view, no substantial
religious questions existed. (Happily, the U.S. Supreme Court found that a
supremely important religious claim existed and ruled in favor of the
On this whole first development, therefore, I can only plead that we give
deep thought to our religious traditions and what they should mean to us in
America today, where violence, disintegration of family life, and
materialism are becoming rampant. Religious liberty-remember-is not a mere
exemption; it is a fundamental in the Bill of Rights.
The second development brings me to two things: a) which we choose
in order to describe matters crucially important in our society, b) what we
really think about itself. "Human life!" Right away you sense
that I may be bringing up the "A" word, the ugly subject of abortion. I
hope that you will bear with me because, when you think about it seriously,
nothing more closely relates to the concepts of a Rule of Law than the
question of whom the Rule of Law covers. We take a lot of comfort in
knowing that, as we leave the premises of this cathedral, we won't be
walking out on a street in Rwanda, with a very live peril of our not making
it home. Our laws hedge us about with protections of our lives. In the
ongoing abortion debate, people calling themselves pro-lifers attempt to
discuss failure of legal protection for one class of lives. But suddenly
interposing are words which block that discussion. I think
that this substitution is very damaging to our polity and, as I hope to
show, to our Rule of Law.
When I first began to hear the phrase "reproductive rights," I marveled.
The "reproductive right" intended was not at all a right to reproduce, or
even a right to not reproduce. It was intended to mean-but mask-the act of
abortion. And the word "abortion" became downplayed in favor of another
term likewise intended as a mask: "terminate a pregnancy." I was not as
much concerned that groups were active in the public forum urging that
women should have the right to abort, as over the fact that they avoided
their public duty to say with candor exactly what was on their minds. Why
the almost puritanical reticence? In the 1990s is there that
people who claim to be liberal-minded hesitate to put in the most explicit,
indeed often crude, terms? Why this Victorian modesty on the subject of
abortion? I think it is because abortion advocates know that to use
plain speech would defeat their objectives. In other words, they avoid the
words that identify the thing they advocate:
* That a life is involved. If not, why "terminate" it?
* That that life is human. What else?
* That abortion kills that human life.
The popularized term "choice" does not refer to the right of a woman to
choose life. It's pointless to say that a woman has the "right to choose"
life for her unborn child. Of course she has. Outside of China, that's a
given. "Pro-choice" is meaningless except in reference to the right to
Now our courts have bought not only the idea that there is a right to kill
an unborn human being but even the Aesopian language which masks the act.
It is in these facts that I see not only a danger to the American Rule of
Law, but the reality of its disappearance. When deceitful language becomes
the currency of public discourse, the common good is harmed because
momentous decisions may be made upon a basis of unreality. These decisions
include court rulings and the making of legislation. Suppose we attempted
to justify racial discrimination as an exercise of "differentiational
rights" or described forms of violent conduct (other than abortion) as
matters of "choice." We would thereby confuse and misdirect the public
dialog which is so needed for the formation of good public policy.
We owe one another something better. We owe America something better.
Because, due in large part to a widespread indulgence in falsification of
the true terms of debate on abortion, we have made the killing of millions
of human beings each year a feature of our national life. This has plainly
destroyed, for now at least, the American Rule of Law. If law cannot
protect innocent human life- however humble, however inconvenient to some
its existence may be-then we have taken a giant step away from the Rule of
Law. James Madison, in his great , spoke of the
total significance of principle, even where the principle involved but the
payment of a three-pence tax. "The free men of America," he said, "did not
wait till usurped power had strengthened itself by exercise, and entangled
the question in precedents. "
Six justices of our Supreme Court-all by the way, beneficiaries of the best
that American life can offer in education, wealth, and status-have held
that the killing of the unborn human being is a fundamental right. The
consequences of that principle are staggering. It is already seen as
justifying assisted (promoted) suicide, and is inevitably moving us to see
all rights in terms of sheer material utility.' If the right of innocent
human life is at risk, all lesser rights are at risk. The Rule of Law
becomes the Rule of Utility, and we -like all materialist civilizations
before us -abandon the glory of our tradition and move into the dark night
But we lawyers are a stubborn and resourceful lot. Our beloved country
should be able to count on us now to fight for restoration of our Rule of
Law. Many of you here at this gathering have wonderfully succeeded in cases
everyone told you you'd lose. I commend to you tonight the words of
Churchill in England's darkest hour: "In victory, magnanimity; in defeat,
defiance." The "defiance" now needed in favor of religious liberty and the
right to life consists, for us, in bringing rationality to a confused scene
by encouraging truthfulness and in courageous laboring in the law, with the
law, and for the Rule of Law.
1. T.B. Macaulay, I, , 35.
2. , 406 U.S. 205 (1972).
3. In 19th-century literature, even "pregnancy" was often referred to by
the less explicit term "confinement."
This article was taken from the December 1, 1994 issue of "The Wanderer,"
201 Ohio Street, St. Paul, MN 55107, 612-224-5733. Subscription Price:
$35.00 per year; six months $20.00.