Word: rules
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...look at the basics of the Constitution with a view to recent controversy. It is often said that the Constitution establishes the rule of law, and that is true, but only in a way. It also establishes a strong executive power, with a president elected by the people separately from Congress and with powers extending well beyond mere execution of the laws. America is the first republic to have a strong executive and much of its success is due to it. A strong executive looks like one-man rule, the very monarchy against which republics have always contested; its danger...
...rule of law also has defects less obvious to us. Suppose the law is bad, then the rule of law is the rule of bad law. Think of the law requiring Rosa Parks to sit in the back of the bus. And a good law, meaning good in normal circumstances, may not be good in an emergency, when the country is at war or under attack. It may not even be good in a special case in ordinary times; this defect requires what used to be called equity and is now called “empathy.” Moreover...
...Constitution contains both the desirable and the necessary; it maintains the rule of law through Congress and the Supreme Court, and it provides for extra-legal necessity in the executive. Because the Constitution is a law, a law above ordinary law, it gives its blessing to executive power that goes beyond ordinary law but remains under the Constitution. In this way the extra-legal becomes constitutionally legal...
...know when to follow the rule of law and when not? The Constitution gives no answer valid for all circumstances but instead, through the separation of powers, sets up a debate between the three branches of government, each of which has its typical argument against the other two. Congress, whether Democratic or Republican, tends to support the rule of law—after all, it makes the laws. The President—and there have been strong Presidents in both parties—tends to see the defects of law, since law is always easier to make than apply. Sometimes...
...Constitution intends that this debate never end, and it is naïve to think that one side should always win. But most of the naïveté is on the side of the rule of law, whose temporary supporters today are willing to shoot amateur pirates but not rough up far more dangerous terrorists at Guantanamo...