The Fifth and Fourteenth Amendment's Due Process of Law Clauses are, at their core, guarantees of lawful rule--requirements that the government's coercive power be exercised in accordance with rational, public-oriented principles rather than the beliefs and desires of particular individuals or groups.
But we should not be led to believe that we live under the rule of law simply because we have a Constitution that is designed to ensure lawful rule.
We must thoroughly understand the rule of law, we must rehabilitate areas of our jurisprudence that deprive us of lawful rule and we must insist that judges are duty-bound to ensure that the reason in our law is not trumped by mere will.
These principles were traditionalism, in reaction to 25 years of rapid change; legitimism (hereditary monarchy as the only lawful rule); and restoration of monarchs ousted after 1789.
Until Justice Thomas and his colleagues acknowledge that constitutional review under the modern rational-basis test is tantamount to no review at all and make plain that judges must apply a different approach, the Constitution's promises of lawful rule and individual freedom will remain unfulfilled.
"This deadline," it said, "is appropriate in light of the commission's failure, after eight years, to develop lawful unbundling rules, and its apparent unwillingness to adhere to prior judicial rulings".
The world of networked equipment is already governed by a patchwork of "lawful interception" rules requiring them to have some sort of back door to allow the police to monitor them.
And it prescribes punishment by fine or imprisonment or both for violations of the act or of any lawful order, rule or regulation of the commission.
The City believes that the laws and rules are appropriate and lawful, and will defend the matter in court".
Judges, however, ruled it was lawful "in principle".
