In Massachusetts, the Rule of Law Dies

Lawmakers in the Bay State are rushing to change state law to make sure the late Sen. Edward Kennedy’s seat is filled as soon as possible with a reliable Democratic successor.

Never mind that as recently as 2004 the same state legislature had changed state law to mandate that a vacant Senate seat could only be filled by a special election to be held within five months of the vacancy.

Before then, as in most other states, vacancies were filled by an appointment of the governor, with the seat coming up for a vote at the next federal election. But in 2004, the Democratic legislature changed the law to prevent then-governor Mitt Romney, a Republican, from naming a Republican to replace Democratic Sen. John Kerry if he were to be elected president. Kerry lost to George W. Bush, but the law remained on the books.

That was then; now is now. With Democrats in Washington wanting to maintain their 60-vote caucus in the Senate, a five-month delay to let the people of Massachusetts actually vote on who will replace Kennedy has become an intolerable roadblock to progress. According to a report from Bloomberg News this morning, the Democratically-dominated legislature in Massachusetts is about to change the law back to allow the now-Democratic governor to appoint a successor within a month.

This is a textbook example of how politicians routinely ignore The Rule of Law in pursuit of political aims.

In his book, The Road to Serfdom, Friedrich Hayek devoted an entire chapter to the importance of the rule of law to a free society. “Nothing distinguishes more clearly conditions in a free country from those in a country under arbitrary government than the observance in the former of the great principles know as the Rule of Law,” Hayek wrote. He defined the phrase to mean “that government in all its actions is bound by rules fixed and announced beforehand,” and not subject to be changed arbitrarily depending on circumstances.

The Bloomberg story contained a less scholarly but equally sound critique of what is going on in Massachusetts: “It shows Democrats don’t care about principle,” said Massachusetts House Minority Leader Bradley Jones, a North Reading Republican. “They don’t care about debate. They don’t care about the rules. It really is disgusting.”