4)
Rule of law does not guarantee that republics and their criminal justice systems will be run efficiently, but the lack of rule of law guarantees that they will not be. If there is no rule of law then it follows that powerful people in the government or business sectors, or more likely in both, can break laws intended to protect the public from them, engage in corruption on a grand scale and generally run amok without fear of reprisal as long as they or their friends are influential enough to quash any response by the constabulary. One need look no further than the contemporary government of China to see that maxim in action. China is a republic with a strong authoritarian streak. It has no single leader with absolute dictatorial power, but all positions of consequence are held by members of the Chinese Communist Party. The CCP is answerable only to itself. There is no independent judiciary and high-ranking officials only face the threat of criminal charges if other members of the national leadership agree to allow it. This is means that criminal prosecution for crimes such as accepting bribes and kickbacks happen only when convenient for the party’s internal politics. This produces an environment where corruption flourishes because “if you don’t pay for the right to do business, then you are likely to encounter interference from party officials” (Bao 2015). Singapore is another state in East Asia with a strong authoritarian streak. They have managed to avoid the massive corruption endemic in China because despite the lack of free elections and many things Americans would consider basic civil rights they have managed to consistently apply their laws even to politicians, the wealthy and others in positions of power.
A republic is by definition a representative government made up of politicians who theoretically or otherwise represent the citizens who make up the government, and that definition has lasted from the Romans to the Encyclopedia Britannica. It stands to reason then that while a republic can be controlled by the will of a powerful man or group of powerful men who rule at their own discretion without concern for anyone else’s opinions such a polity is doing a very poor job at being a republic and is very possibly in a Chancellor Palpatine-type situation which will eventually lead to it no longer being a republic. Rule by will and rule by people are antithetical to republicanism.
5)
Having a Bill of Rights was completely unnecessary when the United States was formed. It was at best useless, as it added no protections that were not already granted by the various state constitutions or provisions within the US Constitution itself such as the right to a fair trial and to not be held indefinitely because of excessive bail requirements. There is nothing of benefit in the Bill of Rights that could not have been done at least as well by including basic concepts like freedom of speech and and religion in the regular text of the Constitution. At worst it is actively harmful, as it limits the powers of the federal government and thereby weakens the national government’s ability to pass laws and rule the country as needed to face new and developing situations.
Moreover, including a Bill of Rights with specifically worded rights delineating limits on the government’s power to restrict rights like free speech and habeas corpus would hurt American rights overall by making those rights negative in nature and encouraging lawyering about where those limits on governmental power end. Take the example of freedom of the press. As Hamilton said in Federalist 84 “why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?” (Federalist Papers 266). If the Bill of Rights says that Congress cannot pass a law muzzling newspapers from printing articles critical of some government policy or decision it follows that Congress can otherwise be assumed to have the power to censor and muzzle in situations not covered by the Bill of Rights. Our contemporary American society bears this out. As the law stands it is illegal under the Constitution to discriminate on the basis of race, religion or gender when it comes to employment and other aspects of public life. It is perfectly legal in most of the United States to fire someone for being, say, a communist or transsexual. This is a consequence of the fact that constitutional protections are negative in nature, meaning that groups specifically spelled out as protected are covered under it and all others are presumed excluded. One of the theoretical problems with a constitutional amendment adding sexual orientation to the list of protected classifications is that a poorly worded amendment would make it impossible to fire or otherwise penalize someone for being an admitted pedophile. Without a Bill of Rights the default presumption would be that being unjustly fired or denied housing based on one’s demographic is illegal and the courts could rule on any exceptions without the difficult and often effectively impossible process of amending the Constitution.
Similarly, any right spelled out in a Bill of Rights is subject to interpretation. Enshrine the right to a free press and the immediate question is, “What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion?” (Federalist Papers 266). Does a free press mean that newspaper can say anything they please and be free from libel charges? Does it mean that they are free from prior restraint but that reporters can be jailed for inflammatory statements and refusing to reveal confidential sources? These are all questions that would require a court ruling to decide, and if such basic questions of application need to be appealed to the highest court to settle them then clearly the Bill of Rights they were included in failed to clearly define them in any meaningful way. In which case the issue would have been better served by recourse to regular laws and the general protections implicit in the Constitution itself.
Works Cited
Bao, Tong. “How Deng Xiaoping Helped Create a Corrupt China.” New York Times. 3 June 2015. Web.
Jay, John, Alexander Hamilton and James Madison. The Federalist Papers. New York, 1778. Ebook. Amazon Digital Services, 10 February 2016.
