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The Spokesman-Review Newspaper
Spokane, Washington  Est. May 19, 1883

We the People: You hear about it a lot, but what does ‘rule of law’ really mean?

Visitors walk outside the Supreme Court building on Capitol Hill in Washington, Feb. 21, 2022.   (Patrick Semansky/Associated Press)
By Jim Camden For The Spokesman-Review

Each week, The Spokesman-Review examines one question from the Naturalization Test immigrants must pass to become United States citizens.

Today’s question: What is the rule of law?

This simple concept – that everyone must follow the law and no one is above it – has far-reaching impacts.

The rule has a long history and is not unique to the United States, said Professor Hugh Spitzer, who teaches constitutional law at the University of Washington School of Law.

“Fundamentally, it means that those people in government – a king, a prime minister, a president, a member of parliament – are subject to the same laws that apply to everyone else in the community,” Spitzer said. “They don’t get treated differently.”

Although English kings had relinquished the claim of “divine right” to govern long before the revolution, the Founding Fathers believed they were dealing with a government that was being arbitrary in applying the laws to them as English citizens, Spitzer said.

John Adams, the nation’s future second president, used the phrase “a government of laws and not of men” in describing the Massachusetts Constitution of 1780, which, like the later U.S. Constitution, had a separation of powers between the executive, legislative and judicial branches.

During Thomas Jefferson’s presidency, Chief Justice John Marshall ordered him to produce documents subpoenaed by Aaron Burr in Burr’s trial for treason. That ruling was later referenced by current Chief Justice John Roberts, Spitzer said, in declaring “the president does not ‘stand exempt’ from the 6th Amendment guarantees.”

In that case, President Donald Trump was refusing to honor a grand jury subpoena to provide financial documents from his businesses, claiming he had absolute immunity under the Supremacy Clause of the Constitution. The Supreme Court rejected that claim on a 7-2 decision.

“In the two centuries since (the Burr decision), successive presidents from Monroe to Clinton have accepted Marshall’s ruling that the chief executive is subject to subpoena and have uniformly agree to testify when called to criminal proceedings,” Roberts wrote. That included tapes from President Richard Nixon’s Oval Office during the Watergate investigation.

The rule of law also requires legal processes be open and fair, he said, and says that everyone has a right to know what the laws are.

“It has evolved over time, and law has become more sophisticated and detailed,” Spitzer said.

The idea that everyone has a right to know what the laws are could be traced back to Moses and the 10 Commandments, he said. In 451 B.C., the Roman plebeians revolted over unequal treatment and rule by the upper class patricians who were interpreting unwritten rules. That resulted in laws being inscribed in bronze in the Twelve Tables and displayed in the Forum.

It’s not about the content of the law, Spitzer added. The rule of law can exist in countries that have laws with which Americans disagree, as long as those laws are applied equally to everyone.