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Ron Paul and the Rule of Law

A little while back I made a passing remark to the effect that it would be a good thing (as well as a miracle) if Ron Paul was elected president. However, a recent discussion at Parableman will have me looking more critically at what Ron Paul has to say over the months until the primary, as well as re-evaluating some of my own views.

Now, despite what Jeremy says, I'm not convinced that Ron Paul is a "strict libertarian" - my understanding is that he is not a proper libertarian at all (that is, that he doesn't believe in libertarian political theory) but, rather, that he is a radical federalist and therefore supports the same policies that libertarians would support on the federal level (we would disagree, I think, about what was permissible to do on the state or local levels). At any rate, he clearly holds an originalist or strict constructionist view of the Constitution, and his interpretation implies that (as most libertarians will agree) most of what the federal government is doing today is unconstitutional. The question at issue is what should be done to rectify the situation.

Now, as per the oaths of office, Ron Paul is clearly correct that every branch of government, and not just the judiciary, should use its constitutional powers to uphold the Constitution and, while it is only the judiciary that has a primary interpretive role, every branch of goverment will have to do some interpretation. Ron Paul is right, for instance, that legislators should vote against and presidents should veto laws that legislators or presidents view as unconstitutional even if the courts disagree with their interpretation. I admire Ron Paul's integrity in consistently voting against bills he regards as unconstitutonal throughout his time in the House.

However, there is some indication that, as president, he might go further than simply using veto power and asking the legislature to pass or repeal various bills: Ron Paul has given some indication that he would refuse to enforce or comply with laws he believes to be unconstitutional, including unilaterally abolishing entire departments of the executive branch.

Now, the President may have authority to abolish departments of the executive branch. I'm not really sure how that works. On the other hand, most of the departments are the subject of various laws of Congress and so to abolish them would seem to be an instance of refusal to comply with laws.

Interestingly, this is exactly what we have been criticizing the Bush administration for: the Bush administration believes (or says that it believes) that various laws conflict with the constitutional authority of the executive branch and has therefore decided not to follow them. I think that the administrations constitutional interpretation is bad, but that's not the principle reason why the administrations actions are wrong: they are wrong because they are opposed to the rule of law. Jeremy suggests that Ron Paul's administration might oppose the rule of law in the same way.

Could actions like this ever be undertaken without undermining the rule of law? Could such actions ever be justified? I think the answer to both is 'yes', and in the circumstances where they would be justified they would not necessarily significantly undermine the rule of law. One case for such things is what Parableman commenter Jeremy Snyder (not to be confused with Parableman author Jeremy Pierce, whom I have been calling Jeremy thus far) calls "judicial tyranny." I don't know if this is exactly what Snyder means, but this phrase conjures for me the idea of a capricious court that rules like a despot, according to the whim of the moment, with no interpretive system or program whatever, and no connection to law. It is the most extreme form of judicial activism. I don't think we are generally seeing this in the United States, but if we were, then simply ignoring the absurd interpretations of the judiciary and sticking to your own interpretation of the written text would be a step toward the rule of law and not away from it. However, this is only because the situation I've described is one in which the rule of law has already broken down almost completely.

In less extreme cases, however, there are less extreme actions that can be taken, and these actions involve testing various precedents and giving the court the opportunity to overturn them. Depending on the situation, it may be appropriate to do this either by announcing that one is going to disregard the unconstitutional law, disregarding it, waiting for someone to sue, and then ultimately following the court's ruling, or by bringing the challenge directly via the Attorney General or White House counsel. However, accepting the court's ruling is important, and there are cases where one also needs to accept the court's previous rulings, which means that you must be careful when to apply this sort of thing.

Now, I should point out that in some cases the Bush administration has followed the first of these strategies, and in these cases I think it is only because their constitutional interpretation is highly implausible that their actions are wrong, and not because of the way they went about it. The cases where the Bush administration is wrong regardless of the rightness or wrongness of their constitutional interpretation are the cases where they have either tried to keep it secret or have failed to properly comply with court rulings.

So the question is, how would Ron Paul go about seeking to restore proper constitutional government? The way that he has sought to do this in Congress is quite admirable, but what would he do as President? I will, as I said, be watching a little more critically now.