What were they thinking? Why the rule of law matters

W
e know what life looks like in a nation without rule of law principles. The world witnessed the horrors of 20th Century totalitarian regimes in Nazi Germany and Stalinist Russia. Today, the list of authoritarian countries is growing and it includes, among others, Russia, China, North Korea and Syria.
What is life like in such nations? The exercise of unlimited, unrestrained and unaccountable governmental power. Arbitrary, unpredictable governance guided only by the passions, preferences and prejudices of those in power. No rights, just privileges — granted and withdrawn in accordance with the passing whims of rulers. No right to life, liberty or property. No due process of law. No right to counsel and no right to a judicial hearing. No freedom of speech, religion, press or assembly. You get the picture.
America’s founders might have traveled that path, but as children of The Enlightenment, they embraced evolving principles of republicanism that rejected traditional views of authority and exalted freedom, dignity and opportunity. They ushered into the life of the new nation, the daily practice of the rule of law through implementation of newly-minted laws and constitutional provisions, along with expectations of a citizenry willing to absorb, practice and defend its ideals.
The introduction of the rule of law marked America’s rejection of the Old World. As a matter of principle, class divisions would no longer determine the scope of rights enjoyed by the citizenry. The implementation into American jurisprudence of the principle of “equality before the law,” a governing theme by no means easily incorporated into a world riven by deep racial and gender prejudices, nonetheless charted a future in which laws would be general and nondiscriminatory in their application. Here, the founders heard the voices of a long line of philosophers, aptly summed up by John Locke, an influential 17th Century English political theorist familiar to them: leaders “are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor.” For a founding generation of colonial lawyers who cut their teeth on the writings of the great 18th Century English commentator, Sir William Blackstone, they heard that “restraints introduced by the law should be equal to all.”
The rule of law, which rests on the idea of equal application of laws, resonates across American history. It was at the center of the efforts of those who drafted, and championed, the 14th Amendment of the Constitution, ultimately ratified in 1868.
The conception and application of different laws for different citizens would clearly frustrate the aims of a nation in pursuit of a system of laws aimed at achieving the republican ideals embodied in the rule of law — whether in the founding period as America moved beyond the confines of monarchical rule, or in the aftermath of the Civil War, as President Abraham Lincoln said, in which the goal ought to be the creation of “a new birth of freedom,” committed to the foundational principle of a government of, for and by the people.
A political system such as ours, which truly aspires to government based on the consent of the governed and one committed to the rule of law, requires a citizenry, as the founders declared, willing to defend those fundamental principles. We turn next week to the ways in which citizens can fulfill that solemn responsibility. 
 
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 U.S. Supreme Court and lower courts by both Democrats and Republicans in the U.S. Congress. He can be reached at david.adler@alturasinstitute.com.