The Rule of Law Is Older Than the Constitution, From Magna Carta to Marbury

Picture a king on a riverbank in June 1215, surrounded by armed barons, being asked to sign a document that says he is not the law. He signs. Then he spends the next few weeks writing to the Pope to ask whether he has to keep his word. That is the oldest story in the history of limited government, and it is also the most modern one, because every ruler since has felt the same itch to be the exception to his own rules.

I want to tell this story in order, because the idea that no one is above the law did not begin in 1787 and it did not begin with a clever professor. It was won, lost and won again across eight centuries by people who were frequently outgunned. The men who wrote the Declaration and the Constitution knew that history cold. They were not inventing a principle. They were inheriting one, and they were deciding whether to be worthy of it.

What we mean by the rule of law

Terms first, because the phrase is abused by people who want it to mean whatever their side needs this week. The rule of law, as the Founders used the idea, has four parts.

1. Law is public and general. The rules are written down, announced in advance and apply to categories of people and conduct, not to named favorites or named enemies.
2. The ruler is under it. The person who enforces the rule is bound by the rule. The sheriff cannot be exempt from the statute he enforces.
3. Judgment comes from someone other than the accuser. Before the government takes your liberty or property, an independent judge or a jury of your neighbors decides, under known rules, whether it has the right to.
4. There is a remedy when the rule is broken. A right without a forum where you can assert it is a suggestion.

Hold those four in your head, because every chapter below adds one of them, and the history of liberty is the history of someone trying to subtract one.

Magna Carta, 1215: the king is not the law

King John had lost Normandy, taxed his barons to the bone, and used the courts as a cash register, selling justice and sometimes withholding it. In June 1215 at Runnymede, a meadow beside the Thames, the barons forced him to seal a charter of liberties. It was not a democratic document. It was a feudal bargain written for barons and the Church. But two of its chapters outlived the world that produced them.

Chapter 39, in the standard numbering of the 1215 text, says that no free man is to 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. Chapter 40 follows with a sentence that every court clerk should have framed over the desk: to no one will the king sell, deny or delay right or justice. Translations vary a little in wording, so check the British Library's published translation if you want the exact English, but the substance is not in doubt.

Read that again with the four parts in mind. The king is bound (part two). Judgment is by equals or by law, not by royal whim (part three). Justice cannot be sold or delayed (part four). Magna Carta did not create a free society that afternoon. It planted an argument, and the argument was that the government's power to take your life, liberty or property has to run through a process the government does not control.

The charter itself had a short life. Pope Innocent III, John's feudal overlord, annulled it within a couple of months as extracted by force, and the country slid into civil war. John died in 1216. But the regents for his young son Henry III reissued the charter that year, again in 1217, and again in 1225, and Edward I confirmed it in 1297 in a form that became part of the statute rolls. A promise the king broke became a promise the kingdom's lawyers kept citing, and that is exactly how most rights survive: not because the powerful honor them but because the weak keep quoting them.

There is a small phrase worth following down the centuries. "The law of the land" in Chapter 39 was restated in an Edward III statute of 1354 as "due process of law." That is the ancestor of the clause in our Fifth Amendment, which says no person shall be "deprived of life, liberty, or property, without due process of law," and of the identical words in the Fourteenth. When a lawyer today says "due process," he is quoting a lineage that runs back to a meadow in Surrey.

Coke, the king and Dr. Bonham, 1608 to 1610

Fast-forward four centuries to the reign of James I, who believed, and wrote, that kings rule by divine right. Sir Edward Coke, the Chief Justice of Common Pleas, did not agree. According to Coke's own report of the episode known as the Case of Prohibitions, dated 1607 or 1608 depending on the source, James announced that since the law was founded on reason, he and others had reason as well as the judges, and so he could decide cases himself. Coke answered that the king in his own person could not adjudge any case, that cases are decided by the judges according to the law and custom of the realm, and that the king, he said, quoting the thirteenth-century jurist Bracton, ought not to be under any man but under God and the law. By Coke's own account the king was furious. We know about the scene from Coke, so treat the dialogue as his version, but the principle in it is the point: the judge's loyalty is to the law, not to the man who appointed him.

Two years later came Dr. Bonham's Case, in which the Royal College of Physicians fined and imprisoned a physician for practicing in London without its license, for unlicensed practice. Coke held that the College could not be judge in its own cause, and he went further, writing that in many cases the common law would control Acts of Parliament and sometimes adjudge them utterly void when they were against common right and reason. Scholars still argue about what Coke meant, and English courts later declined to follow him on Parliament. But the colonists in America read him as an authority for the idea that a written higher law can limit what a legislature does, and in the 1760s James Otis was making that argument in Boston. It is the family tree of judicial review, and we should be honest that it was a contested branch even then.

The lesson from Coke is not "judges should rule." Coke was not claiming that judges may do anything they like. He was claiming that the king and the legislature are both beneath a law that came before them, and that judges who apply it are not the king's servants. That distinction, between a judge who applies a law higher than the ruler and a judge who makes up a law the ruler never passed, is the one modern debates about the courts keep trying to blur.

The Petition of Right, 1628: no imprisonment by command

Charles I wanted a war without calling Parliament, so he demanded forced loans from his subjects and jailed gentlemen who refused to pay. He also billeted soldiers in private houses and, in some places, used martial law against civilians. In the Five Knights' Case in 1627 the judges refused to free the prisoners on bail because no charge had been stated, and the king's command alone went unchallenged, which is the most dangerous kind of ruling a court can give.

Parliament responded in 1628 with the Petition of Right, drafted with Coke's help, which Charles accepted that June after he needed money for his army. It declared that no man should be compelled to give a gift, loan or tax without consent of Parliament, that no free man should be imprisoned without cause shown, that soldiers and sailors should not be quartered in private homes against the owner's will, and that martial law should not be used against civilians in time of peace.

Now go and read the Third Amendment, the Fourth, the Fifth and the Sixth, and tell me you are not reading the Petition of Right with an American accent. Our Habeas Corpus Is the Oldest Liberty in the Constitution, and War Tests It covers the writ that enforces the no-imprisonment-without-cause promise, and General Warrants Made the Fourth Amendment, and Particularity Is Its Heart shows what happened when the Crown's agents searched on their own say-so. Charles broke the Petition anyway, ruled eleven years without Parliament, and lost his throne and then his head. The lesson there is hard but plain: a paper promise is worth the force that stands behind it, and the force in a free country is an independent judiciary and a citizenry that will not let the clerks forget.

1689: the Bill of Rights and the end of the suspending power

The Stuarts did not learn. James II claimed a power to suspend laws and to dispense individuals from obeying them, and he packed courts and the army with loyalists. In 1688 Parliament invited William of Orange and his wife Mary to take the throne, and the next year they accepted a Declaration of Right that Parliament then enacted as the Bill of Rights of 1689.

Its list of James's offences is the template for the list Jefferson wrote in 1776. The Bill of Rights declared illegal the pretended power of suspending laws or the execution of laws without consent of Parliament. It condemned levying money for the Crown's use without Parliament's grant, and it affirmed the subjects' right to petition. It required that elections be free, that freedom of speech and debate in Parliament not be questioned in any court, and that excessive bail not be required, excessive fines not be imposed, and cruel and unusual punishments not be inflicted. If that last phrase sounds familiar it should: it is the Eighth Amendment, word for word as to the key phrase, and Cruel and Unusual Meant Something in 1791 Before Evolving Standards Arrived traces what it meant to the men who copied it.

Notice what the 1689 settlement did not do. It did not make the king a figurehead overnight, and it did not install judicial review. It confirmed that the executive cannot suspend the law by himself, and a few years later the Act of Settlement of 1701 gave judges tenure during good behavior, so that a king could no longer remove a judge for a ruling he disliked. That last reform is the root of the judicial independence clause in Article III.

1776: the Declaration puts judges on the charge sheet

When Jefferson sat down with his list of grievances, judges were near the top. Two of them read, exactly:

He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers. He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.

The colonists understood that a judge who can be fired or starved by the executive is the executive's tool. The Declaration also charges the Crown with depriving Americans "in many cases, of the benefits of Trial by Jury." We take the independent judge and the jury for granted. The men who signed the Declaration put them in an indictment of a king. If you want the whole list, The Grievance List in the Declaration Reads Like a Charge Sheet Against Power walks through it.

Thomas Paine put the principle in a sentence in Common Sense, also in 1776: in absolute governments the king is law, he wrote, so in free countries the law ought to be king, and in America the law is king. That is the whole idea, and a pamphleteer said it in fewer words than this paragraph.

The new state constitutions took it up. The Massachusetts Constitution of 1780, drafted chiefly by John Adams, declared that the government should be "a government of laws and not of men," and it provided that judges would hold office during good behavior with honorable salaries established by standing laws. The Federal Constitution followed in Article III: judges "shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office." Every word of that sentence answers a grievance in the Declaration.

The strongest objection, answered

A fair skeptic says something like this: you are telling a tidy story of progress, but the rule of law in England was often honored in the breach. Magna Carta covered only free men, which in 1215 excluded a huge part of the population. English judges upheld the king in the Five Knights' Case. The American Founders wrote about liberty while holding slaves, and many of the same lawyers who praised Coke enforced slavery. Isn't "the rule of law" just a flattering name for whoever has the power to write the law?

That is a serious objection and it deserves a serious answer in three points.

1. The principle is a standard, and a standard is how you convict the practice. Abolitionists could say, and did say, that the nation was breaking the promises it had written down. You can only measure a hypocrisy against a principle. If "no one is above the law" were merely a slogan of the powerful, abolitionists would not have used it as a weapon against the powerful. They did, because it cuts both ways.
2. The expansion of who is covered is the story, not an exception to it. Chapter 39 protected free men. The Fourteenth Amendment says no state shall "deprive any person of life, liberty, or property, without due process of law" and nor "deny to any person within its jurisdiction the equal protection of the laws." The word is "person," and nobody had to rewrite the principle to reach it, only to enforce it.
3. The alternative is worse. Where the ruler is the law, the vulnerable have no appeal, and the vulnerable are always the ones with the least pull.

So I say plainly: the rule of law is not a guarantee that justice will happen. It is the only machine ever built that gives justice a fighting chance against power.

Marbury, 1803: the principle meets the American structure

All of this arrives in the Supreme Court in Marbury v. Madison, decided in 1803 under Chief Justice John Marshall. The facts are petty: William Marbury had been named a justice of the peace in the District of Columbia in the last hours of the Adams administration, and the new Secretary of State, James Madison, would not deliver his commission. But Marshall used the small case to say something large.

Marshall wrote that the government of the United States "has been emphatically termed a government of laws, and not of men," and that it would cease to deserve that high title if the laws furnished no remedy for the violation of a vested legal right. He wrote that the very essence of civil liberty consists in the right of every individual to claim the protection of the laws whenever he receives an injury. That is part four of the rule of law, the remedy, said by the Supreme Court in 1803.

Then he turned to the Constitution itself. The Constitution is written, he argued, because the people set certain limits on the government; a legislature that could pass whatever law it liked would make those limits meaningless; so a law repugnant to the Constitution is void, and "it is emphatically the province and duty of the judicial department to say what the law is." Notice what Marshall also did. He ruled that Marbury had a right, that the government had wronged him, and that the Court nevertheless could not give him the writ he asked for, because Congress had tried to give the Court a power the Constitution does not. He declined power to honor the text. That restraint is why Marshall Gave Up William Marbury's Commission to Win the Bigger Argument reads the case as a model, and why the distinction in Judicial Review Is in the Constitution's Logic, and Judicial Supremacy Is Not matters: the power to decline to enforce an unconstitutional act is not a power to rule the republic.

Hamilton had set the stage fifteen years earlier in Federalist 78, which describes the judiciary as having neither force nor will, only judgment, and as the least dangerous branch to the political rights of the Constitution. You can read that essay line by line in Neither Force Nor Will, Hamilton's Federalist 78 Read Line by Line. The best reading of Marshall and Hamilton together is this: the court is weak on purpose, and its authority rests entirely on being faithful to a law it did not write.

What this means for a citizen now

The reason a post about 1215 belongs on a site about today is that the rule of law is not self-enforcing, and its enemies do not announce themselves. They show up as the temptation to say that a good cause justifies a bad process, or that an official we like should be excused from a rule we would apply to an official we dislike. Conservatives, of all people, should be wary of that temptation, because we believe that power concentrates in whoever holds it and that the only reliable check is a rule that binds both teams.

Here are the working tests, and you can apply them to either party's officials.

1. Would I accept this procedure if the other side were using it on me? If not, it is a weapon, not a rule.
2. Is the official claiming authority the text gives him, or authority he thinks the moment requires? The Take Care Clause, explained in The Take Care Clause Was Written Against Kings Who Suspended the Laws, exists to stop presidents from suspending laws they dislike, the very sin James II committed.
3. Is there a neutral forum, and can I get into it? Jury service, which Jury Duty Is the Rule of Law in Your Own Town, So Answer the Summons defends, is where ordinary citizens exercise the equals-or-law-of-the-land principle in person.

Read the Constitution with the history behind it, and the document stops looking like a list of rules and starts looking like what it is: the receipt for eight hundred years of paying for the idea that no one is above the law. We did not buy that idea cheap, and we will not keep it cheap either.

The case in brief

1. The rule of law has four working parts: public general rules, a ruler under them, an independent judge, and a remedy for the wronged. Each was added by a particular struggle.
2. Magna Carta (1215), Coke (1608 and 1610), the Petition of Right (1628) and the Bill of Rights (1689) built that machinery in England, and the Act of Settlement (1701) protected judges from the Crown.
3. The Declaration of 1776 indicted the king for making judges dependent on his will, and Article III answers the charge with good-behavior tenure and protected pay.
4. Marbury (1803) shows the principle in American form: a remedy for every legal wrong, a written Constitution above ordinary legislation, and a court that declines power it was not given.
5. The principle cuts against the powerful of every party, which is why it is worth defending when your own side holds the pen.

What you can do: read Chapters 39 and 40 of Magna Carta in a published translation, then read Article III and the Fifth Amendment next to them, and answer jury summons when it arrives.