The Liberals' Mistake (1987)
Context: Liberals placed an unreasonable amount of faith in large institutions: unions, foundations, big government, large corporations, and universities. These institutions are based on principles that are antithetical to democracy. They are not democratic, they are hierarchical: Someone is at the top and everybody else is at the bottom. Their policies are not made democratically, they are made at the top. These institutions are also not egalitarian. They operate by administrative discretion and authority, not the rule of law: There is no legislature, no group lawmaking body.
The individual in the large organization does not have the kind of constitutional rights that an individual in the society at large has. There are no protections of autonomy and free speech. Employees can be fired for many reasons. We need to constitutionalize large organizations to protect the people within them, to ensure that they can be politically outspoken.
Osborn v. Bank of the United States, 22 U.S. (9 Wheaton) 738, 866 (1824)
Confirmation Hearing on the Nomination of William H. Pryor, Jr. to be Circuit Judge for the Eleventh Circuit (June 11, 2003)
Sharp v. Wakefield (1891), 64 L. T. Rep. 180 [1891], Ap. Ca. 173.
“In Defense of Obama’s Apologizing,” http://www.ilanamercer.com/phprunner/public_article_list_view.php?editid1=551 WorldNetDaily.com, May 21, 2010.
2010s, 2010
“There are two laws discrete
Not reconciled,
Law for man, and law for thing.”
Ode Inscribed to W.H. Channing http://www.emersoncentral.com/poems/ode_inscribed_to_william_h_channing.htm, st. 9
1840s, Poems (1847)
No. 78
The Federalist Papers (1787–1788)
Context: There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No Legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the Representatives of the People are superior to the People themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. If it be said that the Legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the Representatives of the People to substitute their will to that of their constituents. It is far more rational to suppose, that the Courts were designed to be an intermediate body between the People and the Legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the Courts. A Constitution is, in fact, and must be regarded by the Judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular Act proceeding from the Legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or in other words, the Constitution ought to be preferred to the statute, the intention of the People to the intention of their agents. Nor does this conclusion by any means suppose a superiority of the Judicial to the Legislative power. It only supposes that the power of the People is superior to both; and that where the will of the Legislature, declared in its statutes, stands in opposition to that of the People, declared in the Constitution, the Judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. [... ] whenever a particular statute contravenes the Constitution, it will be the duty of the Judicial tribunals to adhere to the latter and disregard the former.
Lecture III. The Safeguards of Individual Liberty - 19. Fundamental Rights and the Protected Private Sphere
1940s–1950s, The Political Ideal of the Rule of Law (1955)
