America’s constitutional order is under great stress and foundational principles such as free speech and the rule of law are under attack. The breakdown in respect for American institutions has helped instigate a season of violence and unrest.
The rule of law (ROL) is an expression most Americans are familiar with. It is a popular but vague term often used in political and economic contexts. Americans routinely hear politicians, judges, legislators and prosecutors mention the ROL right up there with freedom and democracy.
Few have paused to say what they actually mean by it. The concept is defined in many ways. For starters the ROL is an ideal, something to look at as a standard, a criterion. It is another way of saying that laws as written are applied equally to everyone. The ROL in its most basic form is captured in the popular quote “no one is above the law.”
It also means that laws should govern a nation and its citizens, as opposed to power resting with a few individuals. In theory, the law of the land is owned by all, made and enforced by representatives of the people.
The notion of the ROL comes with a host of concepts, like the law should be clear, known, and enforced; people are presumed innocent until proven otherwise; the police cannot arbitrarily arrest or detain people without good reason. Laws are interpreted by an independent judiciary which provides for the peaceful settlement of disputes.
The ROL requires that the law be enforced equally. The most marginalized people in our society are entitled to be treated exactly the same way as anyone else. It also requires that laws should not discriminate against people for no good reason, such as the color of their skin, their nationality or gender.
The concept of the ROL dates back thousands of years. For example, the ancient Greeks started democratic law courts back in the 4th and 5th century BC with juries that had hundreds of members. At Runnymede in 1215, English leaders signed the Magna Carta (Latin for Great Charter).
One might argue that the exalted Magna Carta was the beginning point of English-speaking peoples’ understanding of the ROL. It was a document in which, for the first time, monarchs and government leaders agreed to subject themselves to the law, recognized that people were entitled to equality before the law and had a right to a jury trial. The immediate practical consequence of Magna Carta was the establishment of an elected assembly to hold the monarchy to its side of the bargain. These were momentous new concepts.
In the U.S., the most visible symbol of the ROL is the constitution, which was drafted by a special convention in Philadelphia in 1787. It is the framework for effective and limited government and the supreme law of the land. A congressman once delivered one of the truest statements of American political theory: “There is a straight road which runs from Runnymede to Philadelphia”.
The American effort to make good on the promise of the ROL has been difficult and sometimes bloody. There is no getting around it – America has struggled to create a legal system that is fair to all its people.
The most glaring example is that the U.S. Constitution did not address the problem of slavery, despite the words in the Declaration of Independence that “all men are created equal”. This was the great flaw in American constitutional history.
America and other countries subscribing to the notion of the rule of law have considerable hard work to do to negotiate the distance between the ideal and the reality on the ground.
