9/12: PATRIOT WEEK READING: THE RULE OF LAW

SEPTEMBER 12:  PATRIOT WEEK OVERVIEW

On September 12, Patriot Week recognizes the First Principle of the rule of law.  We also recognize Chief Justice John Marshall; the Supreme Court decision Marby v. Madison (authored by Marshall); and the Betsy Ross Flag.

FIRST PRINCIPLE: RULE OF LAW

For much of history, justifying the ruling government went no further than the point of a sword. As John Adams described, “In the earliest ages of the world, absolute monarchy seems to have been the universal form of government. Kings, and a few of their great counselors and captains, exercised a cruel tyranny over the people. . . .” Rulers mostly governed through fear – there were no citizens, only subjects beholden to the ruler. Such government still exists – Vietnam, Libya, North Korea, and Cuba are just a few examples where oppressive regimes continue to rule the people by the barrel of a gun.

The Founding Fathers, however, believed that the rule of law is a fundamental First Principle of a free and just government. John Adams explained the Founders’ understanding when he wrote that good government and the very definition of a republic “is an empire of laws.”

In America, the government governs the citizenry according to the law, not by the whims or fancies of our leaders. By requiring our leaders to enact and publish the law, and to adhere to the same law that applies to each citizen, the rule of law acts as a potent barrier against tyrannical and arbitrary government.

The rule of law also requires that the same law govern all citizens. Founding Father Samuel Adams observed that the rule of law means that “There shall be one rule of Justice for the rich and the poor; for the favorite in Court, and the Countryman at the Plough.”

By requiring both the government and the people to adhere to the law, the rule of law serves as the foundational First Principle for protecting our liberty.

MARBURY V. MADISON

Perhaps the most important decision ever issued by the United States Supreme Court, Marbury v Madison addressed the issue of whether an act passed by Congress in conflict with the Constitution was valid. Ironically, the law at issue granted the United States Supreme Court original jurisdiction to hear a case (a writ of mandamus) brought by a judge who had been appointed by the prior President (John Adams) but who the current President (Thomas Jefferson) refused to provide the necessary paperwork to be seated. In an opinion written by Jefferson’s distant cousin - and nemesis - the Supreme Court found that the law granting them the authority to the hear the case to be unconstitutional and dismissed the case. 

Chief Justice John Marshall first explained that “The government of the United States has been emphatically termed a government of laws, and not of men.” 

Marshall also explained that under the doctrine of separation of powers and the inherent judicial power of the Supreme Court, that the Supreme Court would be the final arbitrator of what the law means:

It is emphatically the province and the duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. . . This is the very essence of judicial duty.

Because the Constitution was the paramount law of the land ratified by the people, Marshall found that Congress could not alter it through mere legislation: “It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.” Marshall continued, “Between these alternatives there is no middle ground. The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.” 

Those who oppose judicial review, Marshall explained, “would subvert the very foundation of all written constitutions.” Such a theory “reduces to nothing what we deemed the greatest improvement on political institutions, a written constitution...” 

“Thus,” Marshall continued, “the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.” 

Marbury v Madison established the bedrock principles that the Constitution would govern the affairs of the government of the America, and that the Supreme Court would be the guardian of the supreme law of the land.

FOUNDING FATHER JOHN MARSHALL

Chief Justice John Marshall began his public service as a soldier in the Continental Army fighting the British during the American Revolution. He served a leading role in the Virginia Constitutional Convention that approved the Constitution. He served for a short period as Secretary of State under Adams, who then appointed him to be Chief Justice of the United States Supreme Court. 

Marshall took hold of what had up to then been a relatively modest institution and transformed the Supreme Court into the guardian of the Constitution and the rule of law. 

BETSEY ROSS FLAG

Legend - in hot dispute - holds that In May of 1776, on behalf of the Continental Congress, George Washington, Robert Morris, and George Ross met secretly with Betsy Ross and asked her to sew the first official flag of America. George Ross was the uncle of Betsy’s late husband; and according to lore Betsy also attended the same church as Washington. 

There is no doubt, however, that on June 14, 1777 (now Flag Day), the Continental Congress, adopted the national flag through the following resolution: "Resolved: that the flag of the United States be thirteen stripes, alternate red and white; that the union be thirteen stars, white in a blue field, representing a new constellation." 

The origin of the design and the reasons for the colors remain in hot dispute. However, Secretary of the Congress Charles Thompson wrote in connection with the Seal of our Nation that

"The colors of the pales (the vertical stripes on the shield of the eagle) are those used in the flag of the United States of America; 

WHITE signifies purity and innocence, 

RED, hardiness & valour, and 

BLUE, the color of the Chief (the blue band at the top of the shield) signifies vigilance, perseverance & Justice."

Learn more about America and Patriot Week, and renew the American Spirit, visit www.PatriotWeek.org, Facebook, Twitter, or contact Judge Michael Warren at patriotweek@gmail.com.