BLESSINGS OF LIBERTY, NOT FREEDOM:

Over time, the rule of law had come to be associated with four key components. First, the rule of law means a formal, regular process of law enforcement and adjudication. What we really mean by "a government of laws, not of men" is the rule of men bound by law, not subject to the arbitrary will of others. The rule of law means general rules of law that bind all people and are promulgated and enforced by a system of courts and law enforcement, not by mere discretionary authority. In order to secure equal rights to all citizens, government must apply law fairly and equally through this legal process. Notice, hearings, indictment, trial by jury, legal counsel, the right against self-incrimination--these are all part of a fair and equitable "due process of law" that provides regular procedural protections and safeguards against abuse by government authority. Among the complaints lodged against the king in the Declaration of Independence was that he had "obstructed the administration of justice, by refusing his assent to laws for establishing judiciary powers," and was "depriving us in many cases, of the benefits of trial by jury."

Second, the rule of law means that these rules are binding on rulers and the ruled alike. If the American people, Madison wrote in Federalist 57, "shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate any thing but liberty." As all are subject to the law, so all--government and citizens, indeed all persons--are equal before the law, and equally subject to the legal system and its decisions. No one is above the law in respect to enforcement; no one is privileged to ignore the law, just as no one is outside the law in terms of its protection. As the phrase goes, all are presumed innocent until proven guilty. We see this equal application of equal laws reflected in the Constitution's references to "citizens" and "persons" rather than race, class, or some other group distinction, as in the Fifth Amendment's language that "No person shall . . . be deprived of life, liberty, or property, without due process of law." [...]

Third, the rule of law implies that there are certain unwritten rules or generally understood standards to which specific laws and lawmaking must conform. There are some things that no government legitimately based on the rule of law can do. Many of these particulars were developed over the course of the history of British constitutionalism, but they may be said to stem from a certain logic of the law. Several examples can be seen in the clauses of the U.S. Constitution. There can be no "ex post facto" laws--that is, laws that classify an act as a crime leading to punishment after the act occurs. Nor can there be "bills of attainder," which are laws that punish individuals or groups without a judicial trial. We have already mentioned the requirement of "due process," but consider also the great writ of "habeas corpus" (no person may be imprisoned without legal cause) and the rule against "double jeopardy" (no person can be tried or punished twice for the same crime.) Strictly speaking, none of these rules are formal laws but follow from the nature of the rule of law. "Bills of attainder, ex-post facto laws and laws impairing the obligation of contracts," Madison wrote in Federalist 44, "are contrary to the first principles of the social compact, and to every principle of sound legislation."

Lastly, even though much of its operation is the work of courts and judges, the rule of law ultimately is based on, and emphasizes the centrality of, lawmaking. This is why, although we have three coequal branches of government, the legislature is the first among equals. But as those who make law are themselves subject to some law above them, this gives rise to the idea that there are different types of laws, some of which are more significant and important, and thus more authoritative than others. The rule of law--especially in terms of key procedural and constitutional concepts--stands above government. By definition and by enforcement it is a formal restraint on government. It judges government in light of a higher standard associated with those ideas. The more authoritative or fundamental laws have an enduring nature. They do not change day to day or by the whim of the moment and cannot be altered by ordinary acts of government.

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