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if the rule of law is lost - and some would say it already has given the power of the state

then poverty beckons


The Constitution and the Rule of Law

by Jacob G. Hornberger, August 1992

In 1944, Friedrich A. Hayek wrote one of the most thought-provoking books of our time — The Road to Serfdom. Hayek warned that Great Britain and the United States were abandoning their heritage of liberty and adopting the economic principles of the Nazis, fascists, and socialists. It was not a message which the politicians, bureaucrats, and social planners of that time wanted to hear. Hayek, who would later win the Nobel Memorial Prize in Economics Science, was vilified as an old-fashioned reactionary.

No one today can seriously dispute that Hayek was right. Although Americans, for example, continue to operate under the delusion that they live in a free-enterprise nation, for the last sixty years they have traveled the same moral, philosophical, and economic mad as their enemies — the road to the welfare-state, regulated-economy way of life — the road to serfdom.

Hayek was also a lawyer. In fact, some of his greatest contributions have been in the area of law. Among his finest books are The Constitution of Liberty and his three-volume work, Law, Legislation, and Liberty.

Two of the most important legal concepts that Hayek underscored were, first, the nature and purposes of political constitutions and, second, the legal principle known as "the rule of law."

Few Americans today understand the true idea and purpose of the U.S. Constitution. They have been taught to believe — and do believe — that their rights emanate from the Constitution.

Hayek pointed out the true nature of rights and the Constitution. He observed that our American ancestors subscribed to the most radical principles of individualism and liberty ever known to man. They truly believed the ideas set forth by John Locke and Thomas Jefferson — that people have certain fundamental and inherent rights — life, liberty, property, and the pursuit of happiness — and that these rights have been endowed by "Nature and Nature's God," not by government.

To protect themselves and their property from the violent acts of others, and to provide a means by which people could peacefully resolve their disputes, our ancestors established a national government. But there was one overriding concern: what would prevent our government from becoming destructive of the very ends for which it was formed?

The goal, then, was to institute a government which could be kept within a very narrow purpose: to protect, not regulate or destroy, the natural, God-given rights of the people.

So, while the Constitution instituted government, it also straightjacketed it. The Constitution set forth a very specific list of enumerated powers, as well as express prohibitions on the powers of the national government. As Hayek observes, the Constitution did not give the people rights. Instead, the Constitution was a law — a higher law — imposed on the officials of the national government to prevent them from interfering with preexisting rights.

In a series of judicial decisions in the 1800s and early 1900s, the concept of "substantive due process" came to be an established judicial doctrine. It held that life, liberty, and property were extensions of each other. A person has the fundamental right to sustain and improve his life through labor, engage in any economic enterprise without political interference, enter into mutually beneficial exchanges with others ("liberty of contract"), and accumulate unlimited amounts of wealth from these endeavors. The courts held that the exercise of these rights were beyond the reach of the majority — beyond the constitutionally granted powers of the government.

Equally important, the legal concept of "the rule of law" was incorporated into our judicial system. As Hayek explains, the rule of law means that people do not have to answer to the arbitrary decisions of governmental officials; instead, they guide their actions by what is prohibited by a clearly defined law. Freedom, therefore, means answering only to a well-defined, previously established law, rather than to the arbitrary and discretionary edicts of some.

Today, of course, the thinking of the American people is entirely different. Believing that their rights come from government, they believe that government can rightfully regulate or take them away. Thus, since the 1930s, the American people have lived under a political order in which governmental officials have omnipotent power over their lives and fortunes.

Moreover, unlike their ancestors, Americans today believe that politicians and bureaucrats can be trusted with unlimited political power. "We should elect the best people to public office and then trust them to do the right thing," is the prevailing attitude, for example, in the War on Drugs, War on Poverty, War on Illiteracy, and so forth. Americans believe that the constraints of the Constitution should be curtailed, if not ended. The idea that life, liberty, property, and the pursuit of happiness are fundamental, preexisting rights with which no governmental official can legitimately interfere is an alien notion to our fellow Americans. The belief is that Caesar — the state — should have the power to regulate and take away that which he has given.

Edited by lowrentyieldmakessense(honest!)

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Sanity from Max Keiser, very refreshing. That's right folks you were not born to be the chattel of the banking elites. You are entitled to freedom, they are not the children of Gods, no matter how well they are dressed and how white their teeth.

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Sanity from Max Keiser, very refreshing. That's right folks you were not born to be the chattel of the banking elites. You are entitled to freedom, they are not the children of Gods, no matter how well they are dressed and how white their teeth.

agreed,we are pawns in a very,very large game of chess.

I'm none too happy about the way things are going,but there is a bigger agenda.

total control IS the objective.....but has anyone considered the prospect of such a scheme being a means of entrapment of other forces down here??

we are being used as bait.

deal with it.Have a bit of fun in the meantime,but do at least educate yourself in some of the more ancient literature to see where this is heading.

scientific dictatorship it is......and it's nothing new.....and it will be utterly destroyed.

the singularity just won't wash.

if you understand where it is heading,you can probably be a little more calm about what is going on....and it is pretty scary......but if you go up a couple of levels then you can see why such stuff has to take place.

I just hope our yank friends are fully loaded,they would never tolerate this.

...we could use a bit of help!!

Edited by oracle

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