Ask four legal and historical scholars what “the rule of law” really means, and you’ll likely get four well-informed yet wildly different answers. That proved true at the recent Harvard Law School panel called “America at 250 and Beyond: Constitutionalism and the Rule of Law.”
Moderated by Jill Lepore, David Woods Kemper ’41 Professor of American History and Professor of Law, the Oct. 28 event was the final installment of the Institute of Politics’ America at 250 series. The speakers traced the “rule of law” ideal from its origins to its current relevance during the midterm election season.
The origins of the rule of law
Lepore pointed out at the outset that the rule of law is “a very odd term that has a strange history.” Though the words have “a veneer of venerable antiquity,” the term didn’t really enter legal thought and popular discourse until the 20th century. American founder John Adams, for example, did not use the term when he famously defined a republic as “a government of laws, and not of men.”
Yet she said the term has become “deeply common” in the new millennium, particularly after an influential Supreme Court dissent by Associate Justice John Paul Stevens in Bush v. Gore (2000), in which he said the majority opinion undermined “the Nation’s confidence of the judge as an impartial guardian of the rule of law.”
The question at hand, Lepore said, is whether current talk of the rule of law has substance or is, in the words of political theorist Judith Shklar, mere “ruling-class chatter.”
Chicago Law School Professor Aziz Z. Huq gave the historical perspective, noting that versions of the concept can be found in Aristotle and Cicero, but it was only coined as a distinct idea in the 1880s. He credited the term to English academic Albert Dicey, who named the rule of law as one of two principles (along with parliamentary supremacy) that made up the underlying principles of English law. In Dicey’s view, the rule of law was “constraint of government actors when it is used against ordinary citizens, or when it is applied to those officials.” The English judiciary, Dicey said, applied the same common law to ordinary citizens and to officials.
Judicial independence and the rule of law
As a judge in the U.S. Court of Appeals for the Eleventh Circuit, Kevin C. Newsom ’97 provided a more practical take on what rule of law means. “To be a little crude about it, [it means that] I don’t have to give one damn about who my opinions are going to please and displease, and that is a real luxury. The way I think about it, my client is the law.”
He named objectivity as a guiding principle, “the substance of what the judge is doing.” The judge, he said, needs to be “independent of the political nonsense,” which is not always the case in his somewhat partisan home state of Alabama. “If on my gravestone at the end of my life is ‘I wonder what his politics were?’ that would be a real compliment. If I’m an equal opportunity annoyer … then I feel like I’m doing something right … If [that] ain’t the rule of law, whatever it is, I’m into it.”
How separation of powers limits government authority
The panel agreed that the rule of law, however nebulous a term, implies some level of constraint on the judiciary. Jamal Greene, Dwight Professor of Law at Columbia Law School, framed it more as a matter of regularity, a prior standard or principle that will inform a current dispute.
“If we think in those terms, it makes sense that judges are going to play an important role in that kind of conception. Judges think of themselves as bound to law. They’re professionally oriented to being bound to something that is regular, that has come before them, so that they don’t exercise power arbitrarily. That connects to the separation of powers, which is how [John] Adams is using it in the Massachusetts Constitution — such that there are certain things that judges do, certain things that executives do, certain things that legislatures do. The way in which we ensure some regularity is making sure that each of those institutions is staying within its lane.”
Thus, that system means judges have their own limitations, since they are constrained by other branches of government.
When political leaders invoke the rule of law
Responding to a question from the audience, the panelists pondered how to move forward when American leaders sometimes co-opt the rule of law concept to suit their own political ends.
Lepore suggested it’s “a bit of a bad sign” that the term has so much political currency now, since candidates on both sides have charged their opponents with not believing in the rule of law or in democracy. Newsom replied that some of those charges are more legitimate than others, adding that, “You, as a citizen, need to be able to distinguish fake charges from real charges, and I think there are both presently.”
Greene, who was an executive branch lawyer in the Biden administration, was more specific in calling out the current administration. “In this moment, the reason we’re talking about it a lot is that we’re ruled by a kind of Holmesian madman, who … conceptualizes his role as doing whatever he can get away with to pursue his particular values.” If you think that just getting away with something is a reason to do it, he said, “then the executive branch is going to violate the law 100 times a day.”
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