Locke argued that government exists to protect rights. Two ideas keep it to that job. Limited government: a constitution says what officials may do and what they may not. The rule of law: laws are public, apply equally to everyone, including the people who make and enforce them, and are applied through fair procedures by independent courts.
Why it works
A government strong enough to protect rights is strong enough to threaten them. Madison put it this way in Federalist No. 51: "you must first enable the government to control the governed; and in the next place oblige it to control itself." Writing the rules down, making them binding on officials and letting courts enforce them is how a government is obliged to control itself.
| Rule-of-law idea | Where it is in the Constitution |
|---|---|
| No punishment for acts that were legal when done | No ex post facto laws (Article I, Sections 9 and 10) |
| No punishment of a person by a law instead of a trial | No bills of attainder (Article I, Sections 9 and 10) |
| No jailing without a reason a judge can review | The writ of habeas corpus (Article I, Section 9) |
| Fair procedures before the government takes life, liberty or property | Due process (Fifth and Fourteenth Amendments) |
| Officials bound by the Constitution | Oaths to support it (Article VI); the President must "take Care that the Laws be faithfully executed" (Article II) |
Key idea
Under the rule of law, no one is above the law: the government itself is bound by it. Limited government means the constitution sets the boundaries of power.
Worked example: Is it consistent with the rule of law?
A new law makes it a crime to have sold a product last year, when selling it was legal, and orders those sellers punished.
- The act was legal when it was done.
- Punishing it afterward is an ex post facto law, which Article I forbids to Congress (Section 9) and to the states (Section 10).
Answer: No. It is an ex post facto law, which the Constitution forbids.
Worked example: Officials under the law
In United States v. Nixon (1974) the President claimed he could keep tape recordings from a criminal trial. What did the Court decide, and why does it matter here?
- The Court held 8–0 that executive privilege is real but limited, and must give way to a criminal trial's specific need for evidence.
- The President had to turn over the tapes, so even the highest official was bound by the law and the courts.
Answer: He had to turn over the tapes: the President is not above the law.
Common mistake
Thinking the rule of law means "obey whatever the government says." It means the reverse: the government must follow the law too. Check: ask whether the rule binds the officials who make and enforce it, and whether it was public before it was applied.