Why the Rule of Law?

Law Matters: Why the Rule of Law?
Content date: 10/14/2005

The following reflections of Missouri Chief Justice Michael A. Wolff make up his October 2005 Law Matters column.

Political leaders, pundits and civic teachers talk frequently about "the rule of law." And we who listen nod our heads and think, "I agree with that." We all have some notion that the rule of law is central to our democratic system, but why is that so?

I recently have had the privilege of talking with lawyers and judges from around the state and have had the opportunity to reflect on why this concept is so central to our American idea of democracy. I’d like to share those thoughts with you.

We are a nation first and foremost of laws. We have no common national origin or ethnicity that currently forms our shared identity as Americans. Instead, our identity has been forged by the rule of law and by our common experience that faithfulness to the law guarantees liberty, equality of opportunity and a functioning civil society even in the face of those who, through ambition for power or wealth, would seek to impose their will on the less powerful. But to understand the "rule of law" and why we have it more completely, we need to look back into our history as a nation.

The signers of the Declaration of Independence understood the oppression that occurs when those in power control the law for their own purposes. The signers understood that it was necessary to have a stable justice system – to have rules and laws based on certain fundamental principles and not the arbitrary whims of those holding government power at any moment. Only in this way could we protect ourselves from tyranny.

We all remember learning about "Life, Liberty, and the Pursuit of Happiness," the most memorable phrase of the Declaration of Independence. It has been not only part of our civics or social studies classes but also part of the popular culture. For some, school lessons might not have done the trick, but many remember television shows such as ABC's Saturday morning cartoon show, "Schoolhouse Rock." Those cartoons taught us the meaning of the Declaration of Independence: "if a government won't give you your basic rights, you better get another government;" that our constitution is a "list of principles for keeping people free;" that, in the preamble to the constitution, our Founding Fathers set out "to form a more perfect union" and "establish justice." "Schoolhouse Rock" showed us, as well, that in the three-ring circus known as our government (remember, this was for children), the courts in "ring three … take the law and … tame the crimes, balancing the wrongs with your rights" and that, through the system of checks and balances, "no one part can be more powerful than any other is."

Our school lessons and popular culture show us that the Declaration of Independence and the Constitution reflect a profound feeling for due process – for fair and impartial application of the law – that is part of the American soul. This feeling is embodied in the Constitution’s Bill of Rights and, following the Civil War, by the Fourteenth Amendment’s guarantee that no state should deprive any person of due process or equal protection of the law.

To be a bit more specific, we might consider some of the grievances listed in 1776 in the Declaration of Independence against King George III, who deprived us "in many cases, of the benefits of trial by jury" and transported us "beyond seas, to be tried for pretended offenses. … [H]e … obstructed the administration of justice, by refusing his assent to laws for establishing judiciary powers. He … made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries."

Our founders were wary of the tyranny not only of a king but also of political majorities. They realized in creating our constitution that a government system needs checks and balances to ensure that the most fundamental principle of our nation – the law – would be protected for the generations to follow. The varying factions should be kept in check, as one of the Founding Fathers, James Madison, argued in Federalist Paper No. 10, so that no particular group in society or any branch of government should hold limitless power. For the same reason, we have states in control of some matters and the federal government in charge of others. This is the same reason Congress consists of two bodies, with membership of the House of Representatives based on population and membership of the Senate equal to all states. The former represents the will of the majority while the latter tempers that will by reflecting the desires of all equally. The constitutions of the United States and the state of Missouri exist for the protection of all – majority and minority interests, executive and legislative branches, state and federal governments – with the judiciary serving as arbiter of disputes between factions and the instruments of government.

This concept of checks and balances is, I believe, engrained in the souls of the American people. Our system of checks and balances, needed to protect basic human liberties, has been with us since the start of the republic. Another of our founders, Alexander Hamilton, noted in Federalist 78 that "the complete independence of the courts of justice is peculiarly essential in a limited Constitution." If certain rights are reserved for the people, or even to the states, then who is supposed to preserve those rights? Are we just to hope that the legislative and executive branches don’t enact laws that infringe on those reserved rights and that they will simply choose not to adopt such laws? Politicians occasionally suggest that is so, but Alexander Hamilton certainly didn't agree. And, lest we think Alexander Hamilton was proposing something akin to "judicial tyranny," he disabuses us of that notion as well, stating: "this conclusion does not suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both" and, if a statute stands in opposition to the constitution, then "the judges ought to be governed by the latter rather than the former."

In Missouri, where judges stand for retention or for election by the people, the duty is as clear as it is occasionally difficult: In each individual case, judges are accountable to the law and not to the popular will.

Adherence to the rule of law helps to preserve the rights of all people in a democratic society; the operative words being "the rights of ALL people." As reflected in our Declaration of Independence, in the Preamble to our Constitution, and in the immortal words of Abraham Lincoln at Gettysburg: in the United States, the power of government comes from all people, not from those in positions of power or those who control a majority of government posts.

The rule of law is what makes our nation so different, so resilient and so free. The human capacity for justice makes democracy possible, as the theologian Reinhold Niebuhr noted years ago. But the human inclination to do injustice to others makes democracy – and the rule of law – necessary.

For discussion questions for classrooms and civic groups, please go to www.mobar.org under the Educators section.