Equal Under the Law Means the Rule Applies to the People in Charge

Every parent knows the sentence, and every child hates it: "Because I said so." It works in a kitchen. It works, more or less, for a toddler. It is a fine way to run a household when the person saying it loves you and answers to nobody but his conscience. It is a terrible way to run a country.

The alternative to "because I said so" is a rule that was written down before the dispute began, that applies to everybody who falls under it, that gets enforced by someone other than the person who benefits, and that binds the officials who enforce it. That is what lawyers call the rule of law, and it sounds dry until you notice that it is the thing standing between you and every petty tyrant who has ever held a clipboard. This piece is about what that idea is, where it came from, a test you can run on any government action, and a hard truth: the test cuts against both political parties whenever they have power.

What the rule of law means

Let me define terms first, because the phrase is thrown around by everybody, usually about the other guy. In plain English, the rule of law means four things:

1. Known rules. The law is written down, public, and reasonably clear before you are asked to follow it. You cannot be punished for violating a rule that did not exist, or that nobody could understand.
2. General rules. The law speaks about categories of conduct, not about named favorites and enemies. It says "no one may do X," not "that man may not do X."
3. Equal application. The same rule applies to the rich and the poor, the friend and the foe, and, critically, to the people who make and enforce it.
4. Neutral enforcement. Disputes are decided by someone other than the party who gains from the result, after notice and a chance to be heard.

Those are not partisan ideas. The British jurist A. V. Dicey laid out a version in 1885 in his book on the law of the constitution, stressing that no one should be punished except for a distinct breach of law established in the ordinary courts, and that every person, whatever his rank, is subject to the ordinary law. The economist and philosopher Friedrich Hayek, in The Road to Serfdom in 1944, boiled it down: government in all its actions is bound by rules fixed and announced beforehand. The legal philosopher Lon Fuller added in 1964 that a legal system fails when its rules are secret, retroactive, contradictory, impossible to follow, or ignored by the officials who are supposed to apply them.

Conservatives claim this idea as their own, and with good reason. We distrust concentrated power, and the rule of law is how you chain it.

From Runnymede to Boston

The story starts in June 1215 on a meadow called Runnymede, where a group of English barons forced King John to put his seal to Magna Carta, the Great Charter. Most of its sixty-odd clauses dealt with feudal grievances you and I would find bewildering. But two have echoed for eight centuries. Clause 39 of the 1215 charter says no free man shall be seized or imprisoned, or stripped of his rights or possessions, except by the lawful judgment of his equals or by the law of the land. Clause 40 says: "To no one will we sell, to no one deny or delay right or justice."

Think about what happened that day. A king, the source of all law in the feudal system, was told that he was under it. The sentence is not "the king will behave." The sentence is "the king can be held to a rule." We trace how the idea traveled down the centuries to the American founders in The Founding Ideas in Order, From Magna Carta to the Bill of Rights.

By the time Americans were writing their own governments, the idea had a slogan. In the Massachusetts Constitution of 1780, drafted chiefly by John Adams, the separation of powers article ends with a purpose clause: "to the end it may be a government of laws and not of men." In 1803, Chief Justice John Marshall echoed it in Marbury v. Madison, calling the American government "emphatically" a government of laws and not of men. The phrase has become a cliché, so look at it again. A government of men is one in which the answer to "why?" is "because the man in charge said so." A government of laws is one where the man in charge has to point to a rule, and the rule is there for you to read.

Where it lives in the Constitution

The Constitution does not use the phrase, but it builds the thing from the ground up.

• No bills of attainder, no ex post facto laws. Article I, Section 9 bars Congress from passing a law that punishes a named person without a trial, or that criminalizes something after it was done. Section 10 says the same to the states. Those clauses protect the first and second elements: known and general rules.
• No titles of nobility. Article I, Section 9 forbids the United States from granting them, which is a constitutional ban on a legal class that stands above the rest.
• Due process. The Fifth Amendment says no person shall be deprived of life, liberty, or property without due process of law. The Fourteenth Amendment, ratified in 1868, repeats it against the states and adds that no state shall deny to any person the equal protection of the laws. That is the fourth element, and the third.
• Trial by jury and the right to counsel. The Sixth and Seventh Amendments put ordinary citizens between the accuser and the accused.

None of these provisions says "except officials." That omission is the point.

The case that makes the point best

If you want one case to carry in your pocket, it is United States v. Lee, decided by the Supreme Court in 1882. During the Civil War, the federal government took the Arlington estate, once the home of Robert E. Lee and his wife, in a tax sale. After the war, Lee's son sued to recover it. The government said it could not be sued because it was the sovereign. The Court said no. Justice Samuel Miller wrote that no man in this country is so high that he is above the law, that no officer of the law may set that law at defiance with impunity, and that all the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.

Read that again. The government had the land, the army and the political popularity. The plaintiff was the son of the Confederate commander. And the Court ruled against the United States because the law was the law. You do not have to like the plaintiff to like the rule.

A three-part test for a citizen

Here is a test you can run on any government action, from a city ordinance to an executive order, with no law degree. Ask three questions: Known, Equal, Heard.

1. Was it Known? Could I have read the rule beforehand, and could a reasonable person have understood it? If the rule was invented after the fact, written in a way nobody can follow, or buried in guidance that changes without notice, it fails.
2. Is it Equal? Does it apply the same way to everyone in the same position, including the officials who wrote it, the agency that enforces it, and the people the officials like? If the rule is enforced hard on strangers and softly on friends, or if the rule-maker exempts himself, it fails.
3. Was I Heard? Before something is taken from me, do I get notice and a chance to present my side to someone who does not profit from the outcome? If the same office is the accuser, the judge and the beneficiary, it fails.

If the answer to all three is yes, the action might still be unwise. But it is lawful in the deep sense. If any answer is no, you have found a rule-of-law problem, and it does not matter who is in the White House when you find it.

Run the test on your own side

Now the uncomfortable part. A test is only worth anything if you will apply it when it hurts.

Presidents. In 1952, in Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court ruled that President Harry Truman, a Democrat, could not seize the nation's steel mills during the Korean War without authority from Congress. In 1974, in United States v. Nixon, a Republican president was ordered to turn over the Oval Office tapes. We look at that case in United States v. Nixon and What the Court Really Said About Executive Privilege. In 2023, in Biden v. Nebraska, the Court struck down a large student-loan cancellation, concluding that the statute the administration cited did not authorize it. Presidents of both parties have pushed against the edge of their authority, and the courts have said no to both.

Agencies. In 2013, a report by the Treasury Inspector General for Tax Administration found that the IRS had used inappropriate criteria, including names like "Tea Party," to screen groups applying for tax-exempt status. Whatever your view of the politics, the rule-of-law point is clean: the rule was not equal. Conservatives were right to be angry, and the lesson is that an agency's neutrality has to be defended against any administration, including one you like.

Congress. For decades, Congress passed workplace and civil rights laws for the rest of the country that did not apply to its own offices. The Congressional Accountability Act of 1995, a plank in the Republicans' Contract with America, finally put Capitol Hill under many of those laws. President Bill Clinton signed it in January 1995. It is a rare case of the rulers volunteering to join the ruled, and it happened because voters were angry about the double standard.

Prosecutors and enforcers. No legal system can enforce every law against every violator, so some discretion is unavoidable. But discretion that follows announced criteria differs from discretion that follows the politics of the person being charged. Conservatives have rightly complained about "selective enforcement" when it targeted their side. They should be equally loud when it favors them. For how this plays out in the courts, see Why Conservatives Defend Due Process Even for People They Dislike.

The strongest objection

The best argument against all this was put with a sneer by the French writer Anatole France in 1894: the law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal bread. The point is that formal equality can hide real inequality. A law can be known, general and equally applied, and still be a bad law that crushes the weak. The people who write the rules are, after all, usually the powerful, and "law and order" has often been the slogan of those who benefit from the existing order.

That is a serious criticism, and the answer to it is not complacency. The first part of the answer is that the rule of law is a floor, not a ceiling. It does not say a law is good. It says that a law, good or bad, must be known, general, equal, and fairly applied, and that makes bad laws easier to see and change. A secret law, an unequal law and a retroactive law are the bad laws that can never be reformed, because their victims cannot even say what the rule was.

The second part is that the powerful can always protect themselves without the law. Wealth buys lawyers, and influence buys friends. It is the poor, the unpopular and the unconnected who need a rule they can point to. Take away the rule of law in the name of fairness, and the one who gets treated fairly is the person the official likes. That is why the idea has been, historically, a weapon of the weak against the strong.

The verdict

The rule of law is not about law and order, and it is not about being nice to criminals. It is about whether the government has to play by rules it can't change on the fly. A conservative who believes in limited government should believe in this above all: if power can't be limited by law, it can't be limited at all.

For the practical check on any federal law, see A Five-Question Constitutional Test You Can Run on Any Federal Law. For the power of the president and its limits, Justice Jackson's Three-Box Test for Presidential Power, Put to Work puts the Youngstown framework to work. And the design that keeps the branches from combining is the subject of Madison's Plan for a Government That Fights Itself on Purpose.

The bottom line

• The rule of law means rules that are known beforehand, general, equal, and decided by a neutral party, and it binds the officials who enforce them.
• It runs from Magna Carta in 1215, to Adams's 1780 line about "a government of laws and not of men," to the due process clauses of the Fifth and Fourteenth Amendments.
• Use the test: Known, Equal, Heard. Apply it to every government action, including the ones your side takes.
• Courts have said no to Truman, to Nixon and to Biden. The principle belongs to no party, and so does the duty to defend it.
• The next time an official says "trust me," ask what the rule is, who it applies to, and who gets to hear your side.