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Douglas W. Kmiec is a professor of constitutional law at Pepperdine University. He served as Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice under Presidents Reagan and George H.W. Bush. He serves now as a co-chair of the Romney for President Advisory Committee on the Constitution and the Courts...
Grasping the significance of the rule of law is one of the most understated aspects of the current presidential campaign. While virtually every Republican candidate has said something adequate about avoiding judicial activism, legislating from the bench, or a la Richard Nixon, being a strict constructionist, only one, Mitt Romney, truly has demonstrated by his state executive experience as Governor that he is capable of sustaining, without the distractions of politics or friendship, an historically-informed appreciation for what John Locke meant by the rule of law in his Treatise on Government: general enactments, prospectively applied, that are enforced evenhandedly and interpreted by a disinterested and capable judge. Maybe Romney is inspired by the knowledge that the historic phraseology "rule of law" comes from the original Massachusetts Constitution of 1780, which noted that the powers of government shall be kept separate, and specifically, that "the judicial power shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men." Or perhaps its simply Romney's unalloyed belief that the rule of law must never be allowed to be distorted as partisan or contradicting of such fundamental values as life or marriage between a man and a woman. But whatever the source of the inspiration, my conversations with Governor Romney and study of his past state judicial appointments convince me that a President Romney will make nominations in the tradition of Roberts, Alito, Scalia and Thomas, and before all else, will insist that the women and men to be appointed have a demonstrated record of valuing the rule of law in the fuller sense discussed here...
Finally, likely headed to the Court's docket is the invalidation by a lower court of the District of Columbia's handgun ban. Here again because this is another issue that divides many people, we need to be able to count on the integrity of the justices to resolve matters. As Governor Romney has said about this case, "I hope the Roberts court takes the Parker case and upholds the Bill of Rights . . . ." Governor Romney recognizes that the best way to respect the Second Amendment - like other protections in the Bill of Rights - results when, but only when, the justices are fairly guided by the original meaning of the constitutional text.