Dear Editor,
I believe it was in one of my religion classes in high school that I learned there are two kinds of law. There are laws that are morality based such as laws against murder and stealing. Then there are laws which are passed to regulate people’s activities which are not morality based. This second kind of laws are laws requiring us to pay taxes or not drive over a certain speed. They were explained to me in religion class as God-based laws and man-based laws. When I was in law school, these laws were described as laws that were laws against intrinsically evil acts, such as murder, and laws that were products of the legislature, again, such as tax laws, corporate laws, speed laws etc.
The problem when people say that this country is great because we follow the “rule of law” is that they do not differentiate between morality based laws or man-made laws. That is why Adolf Hitler was a great believer and staunch supporter of the “rule of law.” Hitler was primarily concerned with man-made laws. Our founders were well aware of this. The “rule of law” is not found in the Constitution.
The due process of law is not a clause that is the same as the “rule of law.” Our founders were very intelligent, highly literate individuals who expressed themselves concisely and specifically. If our founders intended that the rule of law be inserted in the Constitution it would have been. If it had been inserted in the Constitution there would no reason to have to amend the Constitution, just change the law!
Part of the due process is of law as intended by our founders was that a criminal jury did not have to enforce a law that they found unjust or unfair. This action of the jury did not invalidate the law, but only applied to the facts and the accused in this particular case. When I ran for the Montana Supreme Court in 2014, my opponent stated that the jury doing this was a subversion of our democracy! I believe that I speak for our founders by saying that some of the products of our democracy (i.e. the laws) have actually been a subversion of our Constitution.
Dr. W. David Herbert
Billings, MT
