In The Constitution of Liberty, Friedrich Hayek argued that “mere legality in all government action” does not suffice as a basis for upholding the rule of law. Under a standard of mere legality, as long as a law is on the statute books, anything done in accordance with that law is legal. Mere legality also implies that as long as there is a plausible way of spinning state actions to bring them within the wording of a statute, that should suffice to make it legal. This would enable tyrants to read anything they want into the law, giving them a plausible foundation to depict all their actions as perfectly legal. Hayek warned that this would turn the law itself into a threat to individual liberty, which in his view would undermine the very purpose of the law. He agreed with John Locke that the purpose of law should be “to preserve and enlarge freedom.” Far from the law preserving liberty, such a standard of mere legality would lead to the abolition of liberty.
Examples of such “legal” tyranny abound. One historical example is Abraham Lincoln suspending habeas corpus and having the Maryland legislature arrested for opposing his war against the South. He took great pains to depict his actions as entirely legal:
Lincoln argued that the Constitution was silent as to whether the President or Congress possessed the power to suspend the writ; and since Congress was not in session, the President could make such a decision lawfully. Moreover, even if the power belonged to Congress, he argued that his responsibility to “take care that the laws be faithfully executed” justified his actions…
Even while Lincoln was preparing his message to Congress, his suspension of the writ in Maryland was having an immediate impact. Union troops flooded into Maryland and seized control of Annapolis and Baltimore. Arrested and imprisoned at Fort McHenry were Baltimore Mayor George P. Brown, the entire city council, Marshal of Police George P. Kane, and all the police commissioners as well as U.S. Congressman Henry May. In September, military officials arrested at least 30 members of the legislature who were deemed to be sympathetic to the South.
David Gordon observes that, far from these tyrannical actions being criticized, Lincoln still enjoys the fulsome praise of his political admirers who believe that as long as the goal is worthy and admirable the President has legal authority to tear up the Constitution and suspend habeas corpus:
It should come as no surprise that neocons and Straussians like what Lincoln did to the Constitution. The neocon historian Allen Guelzo has argued that the Constitution in fact authorizes the president, not Congress, to suspend the writ, and that Lincoln would have been justified in establishing a complete military dictatorship during the War Between the States, continuing though Reconstruction. The leading Straussian Harvey Mansfield also claims in his book “Taming the Prince” that the president, using John Locke’s “prerogative power,” may suspend the writ. The fact that the “prerogative power” isn’t mentioned in the Constitution apparently isn’t relevant.
If one supposes that the Constitution is just a set of plain words which can be given any meaning one prefers, then one could argue that a construction of constitutional power such as that offered by the neocons is “legal.” In the absence of any specific intent or purpose, the plain words of the text could indeed mean almost anything one desired. A recent example is the United States Supreme Court decision in United States v. Skrmetti, where the dissenting judges interpreted the Fourteenth Amendment equal protection clause to mean that parents have a right to give puberty blockers to their children and put their children through irreversible surgery to change their gender. Justice Sotomayor, dissenting from the majority in that case, declared that, “Hormones and puberty blockers help align transgender adolescents’ physical appearance with their gender identity.” As she sees it, parents’ right to do this to their children is protected by the Fourteenth Amendment.
On the progressive reading, all the equal protection clause means is that people should be free to do whatever they want as long as it is consistent with progressive values. The notion that the Fourteenth Amendment is concerned with allowing parents to medically transition their boys into girls should strike people as preposterous, but it does not—it has become normal to interpret the law through a progressivist lens. Without any sense of the purpose of a constitutional provision, or the meaning intended by those who framed it, one could argue that a constitution permits anything that can plausibly be twisted to fit within the words of the document. This is precisely what progressive courts do, and explains why the liberal justices on the Supreme Court often come up with almost unrecognizable interpretations of the Constitution.
In his Disquisition on Government, John C. Calhoun returned to first principles in establishing the foundations and purpose of a constitution. As Calhoun saw it, the purpose of a constitution is to prevent—or at least restrain as far as possible—abuse of power by the government. Hayek also highlights the role of a constitution in limiting state power. He therefore distinguishes between what is merely legal, in a technical sense, and the rule of law as a constitutional principle which limits the power of the state to take action that undermines liberty:
[The rule of law] is a doctrine concerning what the law ought to be, concerning the general attributes that particular laws should possess. This is important because today the conception of the rule of law is sometimes confused with the requirement of mere legality in all government action. The rule of law, of course, presupposes complete legality, but this is not enough: if a law gave the government unlimited power to act as it pleased, all its actions would be legal, but it would certainly not be under the rule of law.
Hayek saw the rule of law as “a rule concerning what the law ought to be, a meta-legal doctrine or a political ideal.” The rule of law, in that sense, signifies an ideal requiring the protection of individual liberty—safeguarding the right to life, liberty and property.
