Law Matters: Why the Rule of
Content date: 10/14/2005
The following reflections of Missouri Chief Justice Michael A.
Wolff make up his October 2005 Law
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
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
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
under the Educators