The Rule of Law
Conscience is but a word that cowards use,
Devised at first to keep the strong in awe:
Our strong arms be our conscience, swords our law.
March on, join bravely, let us to’t pell-mell;
If not to heaven, then hand in hand to hell.
—William Shakespeare, King Richard III
There is no concept more central to the American experi- ment than the “rule of law.” We all somehow accept it as the corner- stone of the republic. The rule of law comes to us, seemingly, in mother’s milk. Given its centrality, it is interesting how little agreement there is about its meaning.1
I’ve contributed to this conventional lack of examination. For ex- ample, during the summer preceding President Nixon’s resignation in 1974, I was seated at a shipboard table with an Italian gentleman. At every meal, he pressed me to explain why Americans were so agitated. Government, he said, was all about corruption and scandal and cover- ups and moving on to the next government. Could Americans really be so naive and/or so self-righteous? I had just graduated from college but hadn’t learned how exactly to respond to his persistent questioning about the nature and excesses of government. Eventually, however, the magical term leapt to my lips: even the President, I said, had to be sub- ject to the rule of law. I stuck to some version of that utterance for the rest of the voyage. The Nixon saga required no further justification from me. Nixon was not criminally indicted, and didn’t need to be im- peached because he resigned. It was as if Nixon himself and all the rest of us (including a unanimous Supreme Court)2 were following a script learned in junior high school. It was as if we all knew what the rule of law was, what it required, and how it might be damaged if Nixon had refused to listen to the Supreme Court.