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Basic Constitutional Concepts
that everybody obeys, including those who make and enforce the law. A
law that violates the Constitution is not a law and is not, therefore, enforced. This was the principle that Marshall followed in Marbury v. Madison. Likewise, rule of law means equality before the law. A law that singles
out certain people for discriminatory treatment, or is so vague and uncertain that one cannot know what it requires, will not be treated as a law.
Rule of law, then, is not rule of the law, but a doctrine concerning what
the law ought to be—a set of standards, in other words, to which the laws
should conform. Merely because a tyrant refers to his commands and arbitrary rulings as ‘‘laws’’ does not make them so. The test is not what the
rule is called, but whether the rule is general, known, and certain; and
also whether it is prospective (applying to future conduct) and is applied
equally. These are the essential attributes of good laws—laws that restrain but do not coerce, and give each individual sufficient room to be a
thinking and valuing person, and to carry out his own plans and designs.
This does not mean that the individual is free to do as he pleases; for liberty is not license. As the Framers knew well, absolute freedom would be
the end of freedom, making it impossible for society to be orderly, safe
from crime, secure from foreign attack, and effectively responsive to the
physical, material, and spiritual needs of its members. Under God, said
the exponents of the rule of law, the law governs us; it is not by mere men
that we ought to be governed; we can appeal from the whims and vagaries of human rulers to the unchanging law.
Though this is a grand principle of justice, often it is difficult to apply
in practice. Passion, prejudice, and special interest sometimes determine
the decisions of courts of law; judges, after all, are fallible human beings.
As the Virginia orator John Randolph of Roanoke remarked sardonically
during the 1820s, to say ‘‘laws, not men,’’ is rather like saying ‘‘marriage,
not women’’: the two cannot well be separated.
Yet the Framers at Philadelphia aspired to create a Federal government in which rule of law would prevail and men in power would be so
restrained that they might not ignore or flout the law of the land. The Supreme Court of the United States was intended to be a watchdog of the
Constitution which might guard the purity of the law and forcefully
point out evasions or violations of the law by the other branches of government or by men in public office.
The Framers knew, too, the need for ensuring that the President of the