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Sunday, December 12, 2021

FDR, the Rule of Law, and Fair Play

I've finally begun writing my article on Franklin Roosevelt's Constitution Day Address of 1937. Here's an interesting fact about him and that speech. FDR never used the phrase "the rule of law" in any official statement or speech during his presidency. This is pretty telling in that the phrase was used by others at the time. Why did he not use that phrase? Probably because he was not terribly keen about lawyers, as he makes clear in the Address. This disdain reflected his brief and unhappy experience as a lawyer and his more general attitude, which was described by Robert Jackson as more about what was right or wrong rather than legal or illegal. 

Not surprisingly, FDR instead emphasized "fair play" in his speeches, including the Constitution Day Address. He thought that fairness was critical for democracy and constitutionalism. What he meant by that is something that I'm still working through, but the upshot is that  lawyers (understandably) overstate the importance of the rule of law for constitutional legitimacy or success.

Posted by Gerard Magliocca on December 12, 2021 at 08:13 AM | Permalink



But, how can that principle of "rule of law" can be overstated ? This is the main principle, in any democracy. The ultimate one.

In fact, it is the only principle, that can't be eroded whatever:

For, you can take every constitutional principle, and erode it, in light of certain circumstance. Fourth amendment, is great. People should feel secure in their residences, movements, effects etc.... But, on the other hand, public safety, necessitates of course, the downgrading of that principle (of feeling secure). Otherwise, how to arrest ? How to search ?

One person, has the second amendment right, to bear a gun. But, only for self defense. Sometimes, can't be concealed or carried on you even, but locked in your home. Or even high capacity magazines can be banned.

The rule of law, can't typically be balanced against another principle. Every action of the executive branch, of judiciary, of the lawmaker, must be in conformity with the rule of law. One must always, show and justify his action, by pointing, to legal source.

For no one, is above the law, and the law, always reigns supreme. Not a person or ruler, but the law.

As well, fair play. The law, and the rule of law, dictates fair play typically. Sometimes, there is no fair play, yet, rule of law, is absolute one.


Posted by: El Roam | Dec 12, 2021 9:43:59 AM

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