*This piece was originally published by Niskanen Center.
by Paul Gowder, Associate Professor of Law at the University of Iowa
The Constitution and the Rule of Law
The late Justice Scalia was well-known for a number of important judicial commitments—to constitutional originalism, to a permissive account of the Establishment Clause, to a skeptical approach to executive criminal justice power. But his most important commitment was to the rule of law, a central constitutional ideal to which he routinely appealed (and about which he published a famous academic article, “The Rule of Law as a Law of Rules“).
The rule of law is traditionally contrasted to “the rule of men.” The contrast captures the difference between societies in which the awesome power of governments to send men and women with weapons to order their people about is governed by general rules, laid down in advance, and enforceable against government officials who would abuse their power, and societies in which government violence is deployed at the whim of powerful officials without such constraints.
At a minimum, the rule of law requires that public officials obey the substance of the law as well as respect the procedures embedded in the law, such as the judgment of courts. They must also respect the right of the people to turn to such procedures in order to defend themselves from the might of the government. And the rule of law requires that public officials not be endowed with the open-ended authorization to exercise force and violence against ordinary people in accordance with their mere wills.