It was eleven years after the Declaration of Independence—and four years after American victory in the Revolutionary War—that a small group of delegates would convene in Philadelphia to create a new charter for governing the new nation. In order to comprehend this historic achievement we must first understand that this moment and the constitutional document that resulted were built on the great foundational principle of the rule of law.
The rule of law may be the most significant and influential accomplishment of Western constitutional thinking. The very meaning and structure of our Constitution embody this principle. Nowhere expressed yet evident throughout the Constitution, this bedrock concept is the first principle on which the American legal and political system was built.
The Rule of Law
Throughout most of human history, the rules by which life was governed were usually determined by force and fraud: he who had the power—whether military strength or political dominance—made the rules. The command of the absolute monarch or tyrannical despot was the rule and had the coercive force of the law. Rulers made up false stories of inheritance and rationalizations such as “divine right” to convince their subjects to accept their rule without question. This is still the case in many parts of the world, where the arbitrary rulings of the dictator are wrongly associated with the rule of law.
A principle that itself is quite old and long predates the United States, the rule of law is the general concept that government as well as the governed are subject to the law and that all are to be equally protected by the law. Its roots can be found in classical antiquity. The vast difference between the rule of law as opposed to that of individual rulers and tyrants is a central theme in the writings of political philosophers from the beginning. In the works of Plato and as developed in Aristotle’s writings, it implies obedience to positive law as well as rudimentary checks on rulers and magistrates.
In Anglo-American history, the idea was expressed in Magna Carta in 1215. In its famous thirty-ninth clause, King John of England promised to his barons that “No free man shall be taken, imprisoned, disseized, outlawed, or banished, or in any way destroyed, nor will he proceed against or prosecute him, except by the lawful judgment of his peers and the Law of the Land.” The idea that the law is superior to human rulers is the cornerstone of English constitutional thought as it developed over the centuries. It can be found elaborated in the great seventeenth-century authorities on British law, Henry de Bracton, Edward Coke, and William Blackstone. The ultimate outcome of the Glorious Revolution of 1688 in England was permanently to establish that the king was subject to the law.
The idea was transferred to the American colonies through numerous writers and jurists, and can be seen expressed throughout colonial pamphlets and political writings. Thomas Paine reflected this dramatically in Common Sense:
But where says some is the king of America? I’ll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far as we approve of monarchy, that in America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other. But lest any ill use should afterwards arise, let the crown at the conclusion of the ceremony be demolished, and scattered among the people whose right it is.
The classic American expression of the idea comes from the pen of John Adams when he wrote the Massachusetts Constitution in 1780, in which the powers of the commonwealth are divided in the document “to the end it may be a government of laws, not of men.” It is hard to come up with a simpler definition.
Over time, the rule of law had come to be associated with four key components. First, the rule of law means a formal, regular process of law enforcement and adjudication. What we really mean by “a government of laws, not of men” is the rule of men bound by law, not subject to the arbitrary will of others. The rule of law means general rules of law that bind all people and are promulgated and enforced by a system of courts and law enforcement, not by mere discretionary authority. In order to secure equal rights to all citizens, government must apply law fairly and equally through this legal process. Notice, hearings, indictment, trial by jury, legal counsel, the right against self-incrimination—these are all part of a fair and equitable “due process of law” that provides regular procedural protections and safeguards against abuse by government authority. Among the complaints lodged against the king in the Declaration of Independence was that he had “obstructed the administration of justice, by refusing his assent to laws for establishing judiciary powers,” and was “depriving us in many cases, of the benefits of trial by jury.”
Second, the rule of law means that these rules are binding on rulers and the ruled alike. If the American people, Madison wrote in Federalist 57, “shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate any thing but liberty.” As all are subject to the law, so all—government and citizens, indeed all persons—are equal before the law, and equally subject to the legal system and its decisions. No one is above the law in respect to enforcement; no one is privileged to ignore the law, just as no one is outside the law in terms of its protection. As the phrase goes, all are presumed innocent until proven guilty. We see this equal application of equal laws reflected in the Constitution’s references to “citizens” and “persons” rather than race, class, or some other group distinction, as in the Fifth Amendment’s language that “No person shall . . . be deprived of life, liberty, or property, without due process of law.” It appears again in the Fourteenth Amendment’s guarantee that “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” The rights of all are dependent on the rights of each being defended and protected. In this sense, the rule of law is an expression of—indeed, is a requirement of—the idea of each person possessing equal rights by nature.
A striking example of this came in 1770, after British soldiers fired into a crowd of colonists, killing five persons, in what is known as the Boston Massacre. Popular passions were overwhelmingly against the soldiers yet, in a remarkable testament to the significance of the rule of law, these British regulars were acquitted in a colonial court, by a colonial jury, and defended by none other than John Adams, who was to become one of the most committed stalwarts of the patriot cause. Adams wrote that this was one of the most disinterested actions of his life, and considered it one of the best services he ever rendered his country.
Third, the rule of law implies that there are certain unwritten rules or generally understood standards to which specific laws and lawmaking must conform. There are some things that no government legitimately based on the rule of law can do. Many of these particulars were developed over the course of the history of British constitutionalism, but they may be said to stem from a certain logic of the law. Several examples can be seen in the clauses of the U.S. Constitution. There can be no “ex post facto” laws—that is, laws that classify an act as a crime leading to punishment after the act occurs. Nor can there be “bills of attainder,” which are laws that punish individuals or groups without a judicial trial. We have already mentioned the requirement of “due process,” but consider also the great writ of “habeas corpus” (no person may be imprisoned without legal cause) and the rule against “double jeopardy” (no person can be tried or punished twice for the same crime.) Strictly speaking, none of these rules are formal laws but follow from the nature of the rule of law. “Bills of attainder, ex-post facto laws and laws impairing the obligation of contracts,” Madison wrote in Federalist 44, “are contrary to the first principles of the social compact, and to every principle of sound legislation.”
Lastly, even though much of its operation is the work of courts and judges, the rule of law ultimately is based on, and emphasizes the centrality of, lawmaking. This is why, although we have three coequal branches of government, the legislature is the first among equals. But as those who make law are themselves subject to some law above them, this gives rise to the idea that there are different types of laws, some of which are more significant and important, and thus more authoritative than others. The rule of law—especially in terms of key procedural and constitutional concepts—stands above government. By definition and by enforcement it is a formal restraint on government. It judges government in light of a higher standard associated with those ideas. The more authoritative or fundamental laws have an enduring nature. They do not change day to day or by the whim of the moment and cannot be altered by ordinary acts of government.
This sense is captured in Magna Carta’s reference to “the Law of the Land,” a phrase written into all eight of the early American state constitutions, as well as the Northwest Ordinance of 1787. It is reflected in the supremacy clause of the United States Constitution: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” The deep importance of this supremacy is seen in the fact that the oaths taken by those holding office in the United States—the president, members of Congress, federal judges—are oaths not to a king or ruler, or even to an executive or to Congress, but to the United States Constitution and the laws.
Republished with gracious permission of the Intercollegiate Review.
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