Why Hayek Rejected “Mere Legality”

 The Constitution of Liberty and Rule of Law

- Friedrich Hayek argues that mere legality is not enough to uphold the rule of law.

- Mere legality means actions allowed by law are considered legal regardless of their impact on liberty.

- This notion can lead to government abuse, with tyrants manipulating laws to justify their actions.

- True law should preserve and enlarge freedom, not abolish it.

Historical Example of Legal Tyranny

- Abraham Lincoln's suspension of habeas corpus during the Civil War serves as an example.

- Lincoln claimed the Constitution was unclear on who could suspend habeas corpus, thus justifying his actions.

- Despite his claims of legality, Lincoln's actions led to the arrest of opposition figures in Maryland.

- Some historians and political admirers view Lincoln's actions favorably, believing his goals justified constitutional violations.

Modern Interpretations of Constitutional Powers

- Neoconservatives and certain scholars defend Lincoln’s actions as constitutional.

- Some argue the president can suspend habeas corpus based on an interpretation of “prerogative power,” despite it not being explicitly mentioned in the Constitution.

- A recent Supreme Court decision (United States v. Skrmetti) highlights expansive interpretations of constitutional rights, particularly regarding transgender minors.

- Dissenting Justice Sotomayor claimed the Fourteenth Amendment protects parental rights to make medical decisions for their children.

Progressive Lens on Constitutional Interpretation

- Progressive interpretations suggest the Constitution allows individuals freedom consistent with progressive values.

- Such readings may seem absurd to some, yet they have gained acceptance.

- Lack of clarity about constitutional purposes can lead to broad interpretations of rights and powers, often disregarding original intent.

Foundations of Constitutional Government

- John C. Calhoun emphasized that a constitution should limit government power to prevent abuse.

- Hayek also argued that a constitution should restrain state power and differentiate between mere legality and rule of law.

- The rule of law should be an ideal that protects individual liberty, notably life, liberty, and property.

- Laws should not grant governments unfettered power even if those powers are legally permissible. 

https://mises.org/mises-wire/why-hayek-rejected-mere-legality