32b-c. "...run any risk on the side of law and justice rather than join you, for fear of prison or death, when you were engaged in an unjust course." This is the payoff. The criticism that Socrates has of the democracy is that the government of Athens, which largely means the Assembly, does not observe what we now call the rule of law. The law against trying the stratêgoí together was passed precisely to prevent the kind of the abuse that the Assembly did want to commit in this case. Socrates voted to uphold the law and effectively prevent the abuse, and the Assembly nearly prosecuted him for it. The principle of the rule of law is now commonly misunderstood and misrepresented, usually by people who want to avoid it and to transform it into its opposite. The proper idea is to avoid the exercise of arbitrary authority, and to limit the extent of authority itself. If those in power find their power limited, and their jurisdiction restricted to only certain things, where they cannot just operate at their discretion, then this is the "rule of laws, not of men" -- where the law, not the will of the ruler, tells people what they can and cannot do. Although the abolition of the rule of law was characteristic of the totalitarian regimes of the 20th century, fascist and communist, a very similar desire for absolute and arbitrary power is a rot that has crept far into the democracies. Thus, when judges, police, and politicians say that the law and the Constitution mean whatever the Supreme Court says they mean, and that everyone else must simply obey, this is a fundamental violation of the rule of law, not an affirmation of it, because creatures of the government are then able to allow violations of the fundamental law, the Constitution, which is actually supposed to limit them, and to protect the citizen, with the citizen then left helpless against abuses that were supposed to be prohibited. As Thomas Jefferson already understood, this principle puts the foxes in charge of the hen house and means that any level of sophistry and dishonesty can be perpetrated, without practical remedy, to expand the power of government. What is now commonly called the "rule of law" is therefore really its opposite, the principle of blind obedience to authority. No one, indeed, thought that the true principle would work all by itself. We must ask something rather like what Socrates asked Meletus: Who has knowledge of the law to enforce it in the first place? It will not enforce itself. Indeed. That was the genius of the idea of checks and balances, that different authorities would be jealous to limit each other's powers, and so would enforce the law and the Constitution against each other. Already in the Federalist Papers, Alexander Hamilton, who later began planning the expansion of federal power, nevertheless argued that the federal government would enforce the Constitution against the States, and the States against the federal government: Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. [Federalist Paper No. 28, Alexander Hamilton] It never quite worked out like this; for the Constitution did not contain a mechanism for its own enforcement, the States never had a formal means of checking usurpations of the federal government, and the eventual claim by the Supreme Court of final appeal in all Constitutional cases simply delivered to the federal government the coveted discretion of being the judge of its own powers. There was no redress, for instance, against the Alien and Sedition Acts, passed under John Adams, which grossly and undeniably violated the First Amendment, except to vote the Federalists out of power and repeal them. Luckily, that is what happened, but it already revealed a grave flaw in the system, which was not remedied when Adams' own Federalist Chief Justice, John Marshall, claimed ultimate Constitutional authority for the Supreme Court. The abuses piled up slowly but steadily, until by now large parts of the Constitution and the Bill of Rights have been informally repealed by mere judicial fiat, with the very idea of civil rights, which are supposed to preserve us from the power of government, turned around to become just another means of expanding the power of government. Indeed, the rule of law has been fundamentally abolished when Congress has ceded to bureaucrats the power to write regulations, often retroactively, that have the force of law, "interpret" those themselves, and even judge defendants in their own "administrative law" courts. Neither Jefferson nor Madison thought that Constitutional government would last forever. Certainly it hasn't. Nor is it clear when the lessons of the collapse of the United States Constitution can be applied to the reform of this, or any other, government. But Socrates, in a sense, already understands in the Apology what is needed. Like Socrates himself as a Prýtanis, someone must be in a position of authority with both the power and the interest to enforce the law against the abuses and usurpations of other authorities. We may say that Socrates was among the first to do that, and know what he was doing. Now, instead, we have forms of rule that George Washington himself called "real despotism."
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