Book contents
- Frontmatter
- Contents
- List of Figures
- Acknowledgments
- Prologue
- Miscellaneous Frontmatter
- 1 A Constitutional Tyranny and Presidential Dictatorship
- Part I What Is the History?
- Part II What Is a Declaration of War?
- Part III What Are the Solutions?
- Part IV What Is the Theory?
- 10 Bellum Justum et Pium
- 11 The Rule of Law
- Epilogue Senator Malcolm Wallop
- Appendix I Five Congressional Declarations of War and One Appropriations Act
- Appendix II The Fœderative Powers in Parliamentary Governments
- References
- Index
11 - The Rule of Law
Searching for Ontology
Published online by Cambridge University Press: 05 November 2012
- Frontmatter
- Contents
- List of Figures
- Acknowledgments
- Prologue
- Miscellaneous Frontmatter
- 1 A Constitutional Tyranny and Presidential Dictatorship
- Part I What Is the History?
- Part II What Is a Declaration of War?
- Part III What Are the Solutions?
- Part IV What Is the Theory?
- 10 Bellum Justum et Pium
- 11 The Rule of Law
- Epilogue Senator Malcolm Wallop
- Appendix I Five Congressional Declarations of War and One Appropriations Act
- Appendix II The Fœderative Powers in Parliamentary Governments
- References
- Index
Summary
’Twas brillig, and the slithy troves
Did gyre and gimble in the wabe:
All mimsy were the borogoves
And the mome raths outgrabe.
Jabberwocky Lewis Carroll
When arms speak, the laws are silent.
Cicero (1979, Pro Milone IV. xi)
So far, the story has been one of the fatally impractical division of the sovereign’s war powers that led to congressional incapacity and presidential tyranny. A constitutional amendment to establish a fourth branch of government to exercise the fœderative power then became the obvious solution. This solution was achieved, however, by a simple substitution of positive values for negative values. Once the impractical division is corrected by vesting the fœderative power in a Council on War and Peace, capacity returns; tyranny is overcome, and the rule of law is restored during time of war as well as peace. This process of substitution no doubt provides an excellent solution, but it makes for a very poor explanation of how and why the substitution restores the rule of law. Instead of an explanation, one finds an unsubstantiated claim that the rule of law is superior to the rule of men. The claim is no doubt commonsense; it is surely the firm faith of many. Winston Churchill certainly captured its commonsense essence when, during the Commons debate to amend the Parliament Act of 1911, he took the floor at 3:40 pm on Tuesday, 11 November 1947, and said, “Democracy is the worst form of government except all those other forms that have been tried from time to time” (Churchill 1947, 206–7). True enough, but Churchill has provided a bon mot, a quip, not an explanation.
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- Information
- Declaring WarCongress, the President, and What the Constitution Does Not Say, pp. 216 - 236Publisher: Cambridge University PressPrint publication year: 2012