A: This sound bite is taken from one of the earliest cases in American jurisprudence: Marbury v. Madison, a case held out as justifying the doctrine of judicial review. It was Chief Justice John Marshall who authored the now infamous phrase, saying: “The government of the United States has been emphatically termed a government of laws and not men.” Marshall’s infamous one-liner has resounded through the ages finding voice in Presidential addresses and protest marches alike.
To be a nation “of laws and not men,” removes the subjectivity of fool-hearted men and imposes the objective independence of the law. In an ideal sense, the phrase suggests that each citizen of this fair country – the poor, the rich, the farmer, the broker, the Senator, the dog catcher – is under the law. Stated another way, no one is above the law.
In a certain sense, this has remained true. We have seen presidencies toppled because the Chief Executive broke the very laws he was charged with executing. Judges, Senators, and Congressmen alike have all been brought from lofty positions of power to none at all by the sword of Lady Justice. Indeed, it is Lady Justice that embodies Marshall’s words: she wields her sword blindly, caring not for whom it strikes, but only for justice.
But is this the case today? Are we truly a nation “of laws not men?”
Some may point to the perceived illegalities of wars or covert activities of government. Some may suggest the actions of certain judges liken them more to subjective legislators, rather than dispassionate arbiters. Some may even suggest that laws can have no objective basis for what is right for one might be wrong for the next. In so doing, each is implicitly attempting to debunk the wisdom that was Marshall’s mantra.
Marshall appears not even to agree with himself. He went on in Marbury to say, “It is emphatically the province and duty of the judicial department to say what the law is.” In so stating, he seemingly elevated to a position above the law his brethren of the black robe.
But the seeming dichotomy is explained by understanding, as Marshall did, the three interconnected sources of law. There is a fundamental law. This is what is referred to in our Declaration of Independence as “the Law of Nature, and of Nature’s God.” It is a transcendent law, inescapable in its universal application. But there is also constitutional law, which establishes the order and form of our civil government.
Finally, there is the legislative law, as written by legislators. Interestingly, the word “legislator” means, literally, “to carry the law.” A legislator, then, is to carry the law that exists at the fundamental level and apply it to the constitutional framework. Apart from that, law lacks meaning and is contrary to the very fabric of nature. That duty of a legislator is what is meant by another famous phrase: “law is found, not made.”
The law of the legislator must agree with the “Law of Nature, and of Nature’s God” lest our rights be weakened at the fundamental level and we become a nation of men and not law.
Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.