Dear Editor,
In my last letter I gave you the reasons why the due process of law clause found in the fifth amendment to the U.S. Constitution refers to the law that was in effect when the amendment was written by our founders. The purpose of this letter is to point out that the due process of law clause was not meant to mean the rule of law. All of the progressives I have talked to and some of those who consider themselves conservatives believe that those clauses are identical. Our founders were very intelligent and highly literate people. When they wrote the words to our Constitution, they tended to put their ideas down clearly, concisely and precisely. If they meant that the rule of law should have been included in our Constitution, they would have stated that in those precise terms, but they did not do that.
In fact, the very first sentence in the first amendment of our Bill of Rights starts by stating that “Congress shall make no law ….” Of course, they were talking about religion in this instance. What that first statement tells is how our founders felt about the democratic and law making powers of future legislative bodies. Our founders were suspicious and even fearful of democracy, and the laws that can be enacted where 51% of the population could dictate the rights of 49% of the population. This is why our founders launched our nation as a constitutional republic. The emphasis is on the Constitution but not on democracy. Of course, progressives always talk about our democracy knowing that they can misinform or trick enough voters to elect individuals to office who will distort and contort our “rights” in a way that satisfies these same progressives’ political philosophies.
Also if the rule of law were actually found in the Constitution, there would not have to be any need to amend the Constitution , just change the law, and we could change the Constitution. However, our founders did include a process in the Constitution that would have to be followed to amend it. This is another reason we know our founders to not mean that the due process of law actually means the rule of law.
Whenever you hear someone state that our nation is great because of the rule of law, you can be assured that our founders would heartily disagree with this statement! I have never heard Donald Trump mention the rule of law, but I have heard him mention the rule of constitutional law. I believe that the Donald thinks more like our founders did than most of our present day politicians do!
Dr. W. David Herbert
Senior attorney,the
State Bar of Montana
Billings,Mt
