The Elusive Rule of Law

The Elusive Rule of Law

9.22.2025

By Barry Kamins

As we approach the semi-quincentennial anniversary of our nation during a time of heightened political polarization, it is an appropriate time to discuss where the United States stands today with respect to the rule of law. That principle of American democracy has played a crucial role from our nation’s birth in ensuring that our country endures. It has withstood numerous challenges over the past 249 years and, in doing so, has made our country even stronger.

Former U. S. Supreme Court Justice Anthony Kennedy once said that the term “rule of law” is often invoked, yet seldom defined.[1] Its origins can be traced back to Aristotle and the phrase was popularized by the British jurist Albert Venn Dicey in the 17th century.[2] Bar associations have created task forces to study it, and Law Day has been dedicated to the concept. But, in the end, what does it mean? Is it a rule, a concept, or even an ideology?

By examining “The Federalist Papers,” one begins to understand how our Founding Fathers utilized the term in drafting the Constitution. In the Federalist No. 51, James Madison explained that, in devising the Constitution’s structure of separate checks and balances, one had to contend with the unpredictable “human factor”: “If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed and, in the next place, oblige to control itself.” While John Adams proclaimed that we are a “government of laws” and not men, Madison knew that, in the end, men would need to implement those laws. This is the paradox underlying the rule of law.

The genius of Madison was that he understood that no government could ever be free from mistakes, even serious ones, since it was, after all, a system of men governing men. As he put it, “If men were angels, no government would be necessary.”[3] His brilliance was in designing a system in which the rule of law would survive, despite the mistakes that would be inevitable.

The government’s structure itself was initially designed to factor in the “human condition.” Madison explained the proposed constitutional structure of separate checks and balances: “Ambition must be made to counteract ambition.” This type of structure was necessary because it was anticipated that the various institutional actors in each of the three branches of government would have personal and political incentives to suppress each other’s authority.

Soon after the Constitution was signed, the rule of law faced its first challenge when political parties were first created. This was an early test of Madison’s theory since, under the political party regime, it was now possible for the president, House speaker and Senate majority leader to be members of the same political party allowing them to exert near-total authority. Thus, these leaders were less likely to oppose one another – and less likely to utilize the checks and balances envisioned by the Founding Fathers. Despite challenges like this through the following years, the rule of law has prevailed, sometimes however, under difficult conditions. Some of the challenges left a stain on our country for many years.[4] What one can conclude from these examples is that the rule of law is necessarily subject to changes in perspectives and morality; what once was considered acceptable has become less acceptable, and vice versa. As Madison acknowledged, ultimately, laws are subject to the interpretation of the people who make and interpret them. The law can only reflect what people determine is right and, therefore, it is subject to human error.

For example, it was not until 1865 that slavery was officially abolished by the 13th Amendment. In that same year, however, the Supreme Court held that people of African descent were never intended to be, nor could they ever be, citizens of this country.[5] It took 12 years to nullify that decision through passage of the 14th Amendment. Even now, the 14th Amendment has come under scrutiny with questions about immigration and birthright citizenship that pose new challenges to existing interpretations of law.

In 1896, in Plessy v. Ferguson,[6] the Supreme Court held that states could segregate Black people from white people under the doctrine of “separate but equal.” It took 52 years before the court overruled it in Brown v. Board of Education.[7] In doing so, it acknowledged that state­sponsored segregation in public schools was unconstitutional and violated the equal protection clause of the 14th Amendment. The court was not only interpreting the Constitution; it was listening to changing values and mores.

Our Constitution was again challenged after Japan’s attack on Pearl Harbor. President Roosevelt authorized persons of Japanese ancestry to be relocated to internment camps. The Supreme Court held that this process did not violate our Constitution[8] and it took 75 years to disavow that ruling. In Trump v. Hawaii,[9] Chief Justice Roberts stated: “Korematsu was gravely wrong the day it was decided, has been overruled in the Court of history, and – to be clear – has no place in law under our Constitution.”

In the above decisions, the Supreme Court overruled its prior rulings and rejected the doctrine of stare decisis to rectify decisions that did not comport with our nation’s core values. A 2018 report by the Congressional Research Service found that the court had reversed itself 141 times since its initial rejection of stare decisis in 1851. Not all reversals, however, are universally applauded.

Recently, in Dobbs v. Jackson Women’s Health Organization,[10] the Supreme Court overturned Roe v Wade, concluding that an abortion was not protected as a specific right under the Constitution and, in fact, had historically been considered a crime. The ruling eliminates federal protection for abortion rights and allows individual states to regulate or ban abortions as they see fit.

In a joint dissent by Justices Breyer, Kagan and Sotomayor, the justices opined that the majority abandoned stare decisis for only one reason: “the composition of this Court. . . . ” Further, they stated that the majority “eliminates a 50-year-old constitutional right that safeguards women’s freedom and equal station. It breaches a core rule-of-law principle, designed to promote constancy in the law. . . .”[11]. And yet, because the Supreme Court has ruled to outlaw federal protection of the right to abortion, that interpretation must be followed under the rule of law – until another Supreme Court rules otherwise, or Congress makes a law either legalizing or making it illegal under federal law. The majority decision and the dissent expose the tensions that are at the heart of the rule of law.

Throughout our nation’s history, the rule of law has also been challenged by members of the executive and legislative branches.

Sixty-seven years ago, in Coover v. Aaron,[12] the U.S. Supreme Court reacted to a decision by the governor and Legislature of Arkansas to defy the court’s previous order that school boards must desegregate. This was the only time in the Supreme Court’s history that all nine justices signed a decision as coauthors. In its decision, the court made clear that Arkansas and every state and person in the country was required to follow the court’s interpretation of the law.

The decision began as follows: “As this case reaches us, it raises questions of the highest importance of our federal system of government.” The court later explained that “It is emphatically the province and duty of the judicial department to say what the law is.”[13] The decision was not merely about desegregation: It was the Supreme Court asserting that it is the ultimate arbiter of the law.

In addition to state governments, former presidents have also defied the Supreme Court, thus challenging the rule of law. In 1832, the Supreme Court overturned the conviction of a missionary who was living with the Cherokee Nation. The court found that the Cherokee Nation constituted an independent political community and that Georgia could not enforce its laws against whites on Cherokee land. Although the order was only directed at the State of Georgia, President Andrew Jackson launched a forced migration of the Cherokee Nation, which was viewed by some as disregarding the court’s decision.

During the Civil War, Abraham Lincoln suspended the writ of habeas corpus in apparent defiance of Chief Justice Roger Taney’s order that it be restored.[14] Lincoln believed it was necessary to maintain public safety during a precarious time when secessionist movements threatened to interfere with the deployment of Union troops. In doing so, he ignored Taney’s order, arguing in his July 4, 1861 message to a special session of Congress that the Constitution was silent as to which branch of the government might exercise the authority to suspend the writ. In addition, he added that in an emergency and when Congress was not in session, he had the authority to take that action. And, ultimately, nobody could stop him, unless they were willing to destabilize the very government itself. In this case, it was Lincoln who decided the law, even though the Supreme Court disagreed.

In contrast, there are other examples where former presidents have reluctantly complied with the mandate of the Supreme Court even though they strongly disagreed with it. When the court ordered President Nixon to tum over the infamous White House tapes, he did so even though he knew that, by doing so, it would be the end of his presidency. During the Korean War, when the court declared as unconstitutional President Truman’s order to seize the nation’s steel mills, he relented, although reluctantly. And in the 1930s, the court struck down many of the New Deal programs designed by President Roosevelt. While he did not defy those rulings, he toyed with the idea of “packing” the court. While these former presidents might not have agreed with the above rulings, they ultimately demonstrated respect for the rule of law.

Some scholars believe that, in several instances, the rule of law has been abandoned because the Constitution itself has failed to specify adequately the rules that must be followed. Several years ago, the Harvard Gazette hosted a discussion among four distinguished constitutional scholars who focused on the structure of the U. S. Constitution.[15] The panelists agreed that our Constitution, unlike many state constitutions, is a “remarkably short, and in many instances, vague document.” Some might argue that it was purposely vague, as the founders knew that there would be many situations that they could not even begin to imagine; that is why it is referred to as a “living” document. This has been both a blessing and a curse.

Despite the gray areas in the Constitution, however, the panel agreed that our system of democracy has worked over the years because we have relied on each president’s respect for the institution and a self-conscious effort to exercise restraint. Throughout our history, presidents have created standards of conduct for their successors to follow. These norms, however, have not always been respected, which has brought to light some vulnerabilities in our democracy.

The panel concluded that once a norm is no longer adhered to, it must be formally preserved in writing. As an example, the panelists noted that for 150 years there was no written rule about the number of terms a president can serve. The country relied, instead, on an informal norm, adopted by George Washington, that the president should only serve two terms.

When Franklin Roosevelt did not abide by that norm, however, the process of formally amending the Constitution was invoked. Eventually, the 22nd Amendment was written into the Constitution. The panelists concluded that when presidents will not respect certain boundaries adhered to by their predecessors, that the people must endeavor to make amendments to the Constitution.[16]

In the end, therefore, it will be the rule of law that ensures that our democracy continues to thrive. The rule, however, can only be as strong as the people who uphold it. As Professor Stein expressed, “The rule of law . . . is an ideal, a goal, something to be strived for.”[17]

While politically charged current events saturate our endless 24-hour news cycle, will the rule of law continue to endure for the next 250 years in the face of unprecedented challenges? Only time will tell.

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Barry Kamins is a partner in the law firm of Aidala, Bertuna, & Kamins, where his practice focuses primarily on appellate matters and professional discipline. Prior to joining the firm, he was the administrative judge of the New York City Criminal Court and chief of policy and planning for the New York court system. Judge Kamins is an adjunct professor at Brooklyn Law School, where he teaches New York criminal practice. He is the author of “New York Search and Seizure” and writes the Criminal Law and Practice column for the New York Law Journal.

Endnotes

[1] Robert Stein, What Exactly Is the Rule of Law?, 57 Hous. L. Rev 185 (2019) at 187. https://scholarship.law.umn.edu/faculty_articles/698.

[2] Sir Thomas Bingham, The Rule of Law (Penguin 2010).

[3] The Federalist No. 51 (James Madison).

[4] Will A. Gunn, How the Rule of Law Has Shaped and Continues to Shape America, American Bar Association (March 3, 2021), https://www.americanbar.org/groups/public_education/law-day/2021/how-the-rule-of-law-has-shaped-and-continues-to-shape-america/ .

[5] Dred Scott v. Sanford, 60 U.S. 693 (1856).

[6] 163 U.S. 537 (1896).

[7] 347 U.S. 214 (1944).

[8] Korematsu v. U.S., 323 U.S. 214 (1944).

[9] 138 S. Ct. 2392 (2018).

[10] 597 U.S. 215 (2022).

[11] Id., at 416.

[12] 358 U.S. 1 (1958).

[13] Citing Marbury v. Madison, 2 L.Ed. 60.

[14] Ex Parte Merrvman, 17 F.Cas 144 (Cir. Ct. Md., 1861).

[15] Steven Jarderey, Michael Klarman, Steven Levitsky and Mark Tushnet, Panel: Are There Holes in the Constitution?, Harvard Gazette, Harvard University Law School (July 19, 2018).

[16] E.g., the presidential power to pardon.

[17] Supra n. 1 at 16.