Long Live the Law
"As for our common defense," said Barack Obama in his January 20 inaugural address, "we reject as false the choice between our safety and our ideals." The President did not get specific, but his remarks signaled his intentions: He believes that the President is not above the law. He must pursue national security without resorting to extralegal means or violating human rights. He understands that whether the issue is the torture of detainees, due process for American citizens suspected of terrorism, or eavesdropping on our private communications without appropriate judicial warrants, the President of the United States is bound by law.
That view stands in contrast to arguments advanced during the Bush years, mainly by members of the Justice Department's Office of Legal Counsel (OLC) and Vice President Dick Cheney. This contrast is not a matter of conservatives versus liberals. George Will, Paul Weyrich, John Dean, Mickey Edwards, and other conservative icons joined the chorus of those who warned against putting the presidency above the law.
To put these issues in context, though, we need to go back a few centuries and look at the Christian roots of the rule of law as outlined by Reformer John Calvin.
God's Law Limits God's Rulers
I never thought I'd be writing about Dick Cheney and John Calvin in the same sentence. But both men are political theorists and political agents. Both are controversial. And both addressed the question: How much power should we entrust to a ruler?
People haven't always been able to ask that question. For most of recorded history, power was something that rulers had, not something the people entrusted to them. But at key historical moments, that began to change. Calvin lived in one of those turning-point eras. In his time, it was still unthinkable that those who do the governing derive their legitimacy from those who are governed. Nearly everyone in Calvin's time believed that it was God who ordains rulers. They derived this idea from Scripture (e.g., Rom. 13:1-7).
But Calvin began to ask a crucial question: If God puts those who rule into office, does not God's revealed law impose limits on those rulers? To be raised up by God to govern does not mean being handed unlimited power. It means ruling by the principles of God's law.
In his 2008 book The Reformation of Rights, legal historian John Witte summarizes Calvin's views:
Political rulers must govern the earthly kingdom by written political laws, not by personal fiat. Their laws must encompass the biblical principles of love of God and neighbor, but they must not embrace biblical laws per se. Instead, "equity alone must be the goal and rule and limit of all laws," a term which Calvin used both in the classic Aristotelian sense of correcting defects in individual rules if they work injustice in a particular case, and in his own sense of adjusting each legal system to the changing circumstances and needs of the local community. Through such written, equitable laws, political rulers must serve to promote peace and order in the earthly kingdom …
Calvin adopted the "Two Kingdoms" theory of Martin Luther, his elder colleague in the Reformation. God ordains church and government as parallel institutions with distinct responsibilities for ordering society and the lives of the people. Each kingdom has its own sphere of operation, and neither should interfere with the other. This way of thinking contrasted with the earlier Roman Catholic doctrine of the "Two Swords"—that is, God has only one kingdom, but that kingdom has two swords, one wielded by the state, the other by the church. Both were to govern in all spheres of life.