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the United States Constitution is
certainly dedicated to the rule of law
John Adams famously said quoting
Harrington who himself is quoting
Aristotle or alluding to Aristotle that
the United States aims to establish the
rule of law not the rule of men and the
Constitution lays out a number of rules
about how government should act some of
that is involved in creating new
institutions and defining those
institutions in a way summoning them
into being and some of it is about
putting restrictions on institutions
that are already there or practices that
are unavoidable so when does the rule of
law and the rule of men or something
besides the rule of law create a
conflict in American government well one
of the great conflicts about the rule of
law in governance comes up during the
Civil War Abraham Lincoln you know was
accused of being a dictator by his
political opponents and only partially
defended against it by his friends he
made a case against it but even that
case was kind of modified and that's
this in the great crisis of the spring
of 1861 when a number of states
purported to secede from the union
something which they claimed was legal
and which Lincoln claimed was a
violation of the law of the Constitution
the federal government was faced with
this tremendous danger that its capital
was located in the middle of slave
territory the state of Maryland was a
slave state in the state of Virginia of
course was a slave state and the
critical question had to do with
Maryland and Virginia was seceding from
the Union or sought to secede from the
union
but Maryland Lincoln had no intention of
allowing to secede from the union and so
he suspended habeas corpus
one of those basic guarantees in the
Constitution that there will be no
imprisonment without a trial
Lincoln imprison people without a trial
and when the Chief Justice of the United
States told him he had to release a
prisoner he ignored it and and Lincoln's
claim was that even though the law of
habeas corpus is in the Constitution
albeit with a provision for suspension
but it looks like maybe suspension by
Congress rather than the President
Lincoln said you have to be able to
preserve the whole of the law you can't
allow the whole of the law to collapse
because of some particular law which
you're trying to enforce just according
to the letter of the law so Lincoln
suspended habeas corpus later on they
put on trial newspaper editors who were
sympathetic to the Confederate cause and
promoting mutiny among the troops and
here the argument that Lincoln made was
that you can't by following all the
details of the law put at risk
lawfulness itself but it was certainly
an intra an instance where he was making
an appeal to his judgment his wisdom
about what the circumstances required
rather than trying to follow what the
rules permitted or allowed not to
mention that the rules didn't say what
to do in a case that some of the states
were seceding gosh Lincoln's predecessor
James Buchanan thought there was nothing
a president could do to respond to
secession that that wasn't in the rules
of the Constitution well to be sure it
wasn't in the rules of the Constitution
wasn't exactly anticipated by the
founders and they probably couldn't have
made a rule about it if they had or the
rule would never have been accepted as
part of the Constitution so there I
think is one of the critical moments
where the rule of law the guarantee of
basic civil liberties
came up against the claim that the
protection of a constitution that
protects civil liberties requires at
least a generous interpretation of the
power to restrict in certain
circumstances the ordinary rule of law
but if that applies at the time of the
civil war maybe the clearest crisis in
American history what about right after
9/11 when two huge buildings collapsed
as a result of the sort of homemade
bombs airplanes turned into bombs
unprecedented thing right and and
suddenly the United States is faced with
threats the nature of which it doesn't
really even know do the necessities of
that moment require some restriction of
civil liberties a lot of that was
handled by law made by the legislature
but the Patriot Act right but whether
the Patriot Act actually fit with the
Constitution and the way in which it fit
was a matter of much dispute not all of
which went to court some of it did but
not all of it went to court and was
resolved and I don't know that it can be
resolved so that would be an example the
the instance of the threat of war or of
disaster in a moment of war might
require some at least narrowing of the
rule of law certainly it requires an
appeal to a wisdom that goes beyond the
rule of law itself
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