The nature of man is so frail, that wheresoever the word of a single person has had the force of a law, the innumerable extravagances and mischiefs it has produced have been so notorious, that all nations who are not stupid, slavish and brutish, have always abominated it, and made it their principal care to find out remedies against it.
—Algernon Sidney. Discourses Concerning Government, 1689.
A decree is a rule, having the force of law, issued by the executive or bureaucratic branches, that affects the rights of citizens. It is the opposite of a settled law, duly passed by the legislature or entrenched by stare decisis in judicial precedent. Decrees are objectionable because they tend to grant ever-wider discretion to bureaucrats. Eventually the point is reached where those in government have granted themselves discretionary power to do anything to anyone, including murder. The depths of depravity to which rule-by-decree can lead is illustrated by the ‘Night and Fog’ decree issued in Nazi Germany in 1941, which reads as follows:
- Within the occupied territories, the adequate punishment for offenses committed against the German State is on principle the death penalty.
- The offenses listed in paragraph 1 as a rule are to be dealt with in the occupied countries only if it is probable that sentence of death will be passed upon the offender, and if the trial and the execution can be completed in a very short time. Otherwise the offenders are to be taken to Germany.
- In case German or foreign authorities inquire about such prisoners, they are to be told that they have been arrested but that the proceedings do not allow any further information.
Notice that paragraph 2 refers to offenses listed in paragraph 1, but there are no offenses listed in that paragraph, thus the decree gives unbridled license to murder. Moreover, paragraphs 2 and 3 deliberately instruct these state-sanctioned murderers to behave like serial killers, leaving the victims’ families agonizingly ignorant of the fate of their loved ones.
The wisdom of Algernon Sidney, John Locke and the Founding Fathers of the United States, translated into the constitutional safeguards built into the U.S. Constitution, was not foresight. They had no crystal ball to see Hitler and Stalin tormenting and murdering millions. Rather, they drew upon their own experiences and upon history. They had read Herodotus, Thucydides, Demosthenes, Polybius, Cicero, Sallust, Livy, Plutarch, Tacitus, Suetonius and other classic authors. From them they knew of the depravity of the Greek tyrants and Roman emperors. They also had before them the example of the absolute European monarchs of their own day, and to a trifling, but nonetheless intolerable extent, their own colonial governors and the despotic Parliament of England. They understood the bent of human nature whenever it is entrusted with unrestricted power.
It is not just the executive and the bureaucracy that must be prevented from ruling by arbitrary decree, but also the legislature. This means the legislature’s law-making power must have constitutional bounds, and the laws it promulgates must be designed for all time, rather than the whims of the hour. This was repeatedly emphasized by Locke:
The Legislative … cannot assume to itself a power to rule by extemporary arbitrary decrees, but is bound to dispense justice, and decide the rights of the subject by promulgated standing laws and known authorized judges.
… Whatever form the commonwealth is under, the ruling power ought to govern by declared and received laws, and not by extemporary dictates and undetermined resolutions.
… For all the power the government has, being only for the good of the society, as it ought not to be arbitrary and at pleasure, so it ought to be exercised by established and promulgated laws.
… They are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favorite at court, and the countryman at plough. (Two Treatises of Government, 1689.)
