No phrase in our constitutional galaxy carries the majesty and prestige of the rule of law. Judges, lawyers and politicians invoke it. Scholars, diplomats and teachers express it. Citizens from Casper to Cheyenne to Centennial assert it. For most, the rule of law inspires awe, reverence and curiosity. To some, it is an enigma.
There is always some concern that this hallowed phrase — the rule of law — has been hollowed out, dulled by its reflexive repetition, devoid of a sense of its historical origins, purpose and indispensability to American Constitutionalism. Let us hope that those who hold office do not pay it mere lip service, through word and deed, that they would not render it trite, relegate it to the status of useful fiction and consign it to the category of cliché’.
A page of history will remind citizens that the American way of life — our rights and liberties and values — hangs on the preservation of the rule of law. All that we know as participants in self-governance, as advocates of limited government, opponents of arbitrary rule and defenders of equal protection of the laws, is directly traceable to the rule of law.
For the founders, the rule of law represented the essence of constitutional government. Chief Justice John Marshall, who shaped the meaning of the Constitution more than his predecessors and successors, declared the central importance of the rule of law for our nation, when he wrote a landmark opinion for the Court in 1803, in Marbury v. Madison: “The government of the United States has been emphatically termed government of laws and not of men.”
Like other great principles of Anglo-American legal history that have influenced our nation, the rule of law has been an evolving principle, one born from dramatic moments but also shaped by historical struggles and fits and starts, to establish the supremacy of law. Our heritage was influenced by much earlier philosophers, principally by Aristotle, the great Athenian champion of democracy in the 5th Century B.C. In his book, The Politics, Aristotle lent structure to the principle when he wrote that all people should be accountable to the same set of laws.
Aristotle’s theme was advanced in 1215 at the Battle of Runnymede, when King John of England signed the Magna Carta — “the Great Charter” — which, in general terms, established the principle that the monarch must respect established rules. The chief constitutional struggle in England, from that moment forward, involved the effort to tame the kingship, to limit monarchical power as Parliament presented itself as the champion of the Common Law and the rights and liberties of Englishmen.
The historic battle waged by Sir Edward Coke, Chief Justice of the King’s Court in the early 17th Century, and later the leader of parliamentary efforts to subordinate the monarchy to the rule of law, was unsuccessful, but the founders of our nation viewed Coke as a hero, a brilliant scholar and statesman, and inspiration for their own efforts to implement in the United States the principle of the rule of law.
At the time of the American Revolution, the rule of law had a precise meaning. For the founders, it meant the subordination of the executive to the rule of law. King George III, like other tyrants across Europe, had consistently threatened the rights of the people through arbitrary acts that flaunted those rules and laws that purported to restrain the executive.
Where other nations failed, America succeeded. The framers of the Constitution justly celebrated the historic quest of making the president subject to the law and amenable to the judicial process. That ranks as one of their greatest achievements.
The framers’ success marked a dramatic departure from the way in which other nations regarded the executive. James Wilson, second in importance to James Madison as an architect of the Constitution, summed up the break from monarchy when he stated that the prerogative powers of the king are irrelevant to the task of creating a republic. The president, he said, would not enjoy any privilege not enjoyed by ordinary citizens.
For their part, the framers had restrained the president by sharply limiting the powers of the office under Article II. American history, as we shall see, reveals that the effort to confine and define presidential power has not always been successful.
David Adler, PHD, is a noted author who lectures nationally and internationally on the Constitution, the Bill of Rights and Presidential power. His scholarly writings have been cited by the US Supreme Court and lower courts by both Democrats and Republicans in the US Congress. He can be reached at email@example.com