Rule of Law

“When we say that the supremacy or the rule of law is a characteristic of the English constitution,” wrote the British constitutional scholar Albert V. Dicey in Law of Constitution (1885), “…[we] mean, in the first place, that no man is punishable…except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.” Nearly two centuries earlier, the English philosopher John Locke (1632–1704) explained in his Second Treatise (his Two Treatises on Government was published in 1690) that “Allegiance being nothing but an obedience according to Law, which when he [the monarch] violates, he has no right to Obedience.” In other words, even the English monarch was not above the law, and subjects of the Crown owed no personal feudal allegiance to the monarch—only allegiance to the sovereign as the constitutional head of state.

The opposite of the rule of law—as opposed to merely a rule of law—is arbitrary and capricious rule by an absolute monarch or a dictator. It was in part the seemingly arbitrary and capricious acts of the British king and Parliament that sparked the movement for independence in the thirteen original American colonies and led to the Revolutionary War (1775–83). In his incendiary pamphlet Common Sense (1776), Thomas Paine, a recently arrived British subject, declared that “in America, the law is king.”

Some national constitutions enshrine adherence to the rule of law. The Bulgarian constitution (1991), for example, provides: “The Republic of Bulgaria is a state based on the rule of law.” Although the U.S. Constitution does not expressly refer to the rule of law, by its nature it incorporates the concept. Election of the president every four years (see Elections) and the impeachment process to remove the president from office both provide checks on any arbitrary and capricious use of power that the chief executive might attempt. The independent judicial branch and its inherent power of judicial review (see Judicial Independence) represent other elements of the Constitution that are calculated to ensure adherence to the rule of law by the U.S. government.

A handful of Supreme Court cases decided since the 1970s illustrate the application of the rule of law. The first case, United States v. Nixon (1974), grew out of the Watergate scandal, which centered around allegations of the president’s involvement in covering up a break-in at Democratic Party headquarters in 1972. The special prosecutor (see Independent Counsel) appointed to investigate the charges sought the Court’s assistance in obtaining what turned out to be incriminating tape recordings made under the direction of Richard M. Nixon (1913–69). In denying the president’s assertion of executive privilege to withhold the evidence (see Immunity), the Supreme Court confirmed the principle of the rule of law: that no one is above the law, not even the president. In this case the coequal judicial branch enforced the law against the president.

This theme was expanded on in the case of Clinton v. Jones (1997). Here the Supreme Court went so far as to say—although Thomas Jefferson had argued otherwise in his day—that “it is…settled that the President is subject to judicial process in appropriate circumstances.” President Bill Clinton (b. 1946) was seeking to avoid having to respond during his term to a civil suit filed against him for sexual harassment. The Court noted that the suit involved unofficial acts. A similar question came up during the impeachment proceedings against Clinton in 1999 as to whether criminal charges arising out of the impeachment investigation could be brought against a sitting president, but no attempt was made to formally file such charges while he was in office.

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