March 03, 2021

Exploring the Rule of Law

Grade Level

High School

Overview

During this lesson, students will explore the rule of law through a jigsaw, with various groups of students tackling different aspects of the concept, including judicial independence, equality under the law, and open laws. Students will be provided with quotes and primary sources to dig into their area and then come back to the rest of the class to teach their peers. Students will gain a fuller understanding of the “the rule of law” is and why it is important for us as a society to uphold it.

Time Needed

1 class period 

Objectives

After this session, students will be able:

  • Define the rule of law;
  • Provide examples of times the rule of law was tested;
  • Explain why the rule of law is critical to maintaining our democratic society;
  • Identify what can put the rule of law at risk.

Materials Needed 

  •  Screen/Projector to project video
  • Group hand-outs Download here >>
  • Debrief/Exit Ticket Handout

Procedure

Introduction/Bell Ringer

Ask students to brainstorm (individually or groups) how they define the phrase “rule of law.”

Visit this page and show the video>>

Jigsaw Activity

Split students into four groups and distribute resource packets.

Themes/Topics for Groups:

  1. The same laws apply to everyone and everyone is treated equally under the law
  2. Government power is bound by the law
  3. Laws are shared openly and enforced fairly
  4. Judiciary is independent and judges are fair and impartial

Discussion Questions for Groups:

  1. According to these quotes, why does the rule of law matter?
  2. Why do you think we should we care about the rule of law?
  3. What are the challenges we face today to uphold the rule of law? What about in the future?
  4. What questions do you have about the rule of law?

After students have reviewed their quotes and had time to answer their discussion questions in small groups, ask them to come back to the larger class and report out on group discussions.

Debrief/Exit Ticket

Have students complete the “what the rule of law means to mean” hand out. They should be encouraged to be creative in their responses—drawings, cartoons, sayings, etc.

If time, student responses can be hung around the class space (or shared virtually) for a gallery walk.

Student Group 1 Handout

Same laws apply to everyone and everyone is treated equally under the law

No Man Is Above and No Man Below the Law

Theodore Roosevelt
A republic such as ours can exist only by virtue of the orderly liberty which comes through the equal domination of the law over all men alike, and through its administration in such resolute and fearless fashion as shall teach all that no man is above and no man below it.

“A Square Deal” Speech (1903).

The Constitution Grants Equal Dignity

Justice Anthony Kennedy
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Obergefell v. Hodges (2015)

The Rule of Law and Racial Justice

Janai Nelson
And the rule of law is really central to this fight for racial justice because, you know, at bottom, the rule of law is about consistency and fairness and accountability at all levels of government. It’s the enforcement of laws to protect civil, human, and constitutional rights. It’s about preventing state-sanctioned lawlessness in the form of police brutality and, you know, unchecked vigilante violence against African Americans — which we’re seeing more often — and of course against other groups.

The Rule of Law Reimagined (2020)

Laws Permitting Racial Discrimination

Chief Justice Earl Warren
There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated "[d]istinctions between citizens solely because of their ancestry" as being "odious to a free people whose institutions are founded upon the doctrine of equality." Hirabayashi v. United States (1943). At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the "most rigid scrutiny," Korematsu v. United States (1944), and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate. Indeed, two members of this Court have already stated that they "cannot conceive of a valid legislative purpose . . . which makes the color of a person's skin the test of whether his conduct is a criminal offense." …There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification….We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

Loving v. Virginia (1967)

There Was No Law

Ta-Nehisi Coates
I remember… I interviewed this guy, Clyde Ross, and I was sitting in his living room, and he was 90 at the time, 90, 91. And I said, "Mr. Ross, where are you originally from?" We were on the West Side of Chicago. He said, "I'm from Mississippi." I said, "Where?" He said, "The Delta." I said, "Home of the blues." He said, "Yeah." I said, "Why did you come to Chicago?" … He said, "Because there was no law." I said, "What does that mean? Of course there were laws in Mississippi." He said, "There were no Black police, no Black prosecutors, no Black judges. That's no law.”

And I was like, wow. Yeah, what he's saying is that he was basically subject to anarchy.

Revisiting the Case for Reparations (2019)

True Measure of Justice

Bryan Stevenson
I’ve come to believe that the true measure of our commitment to justice, the character of our society, our commitment to the rule of law, fairness, and equality cannot be measured by how we treat the rich, the powerful, the privileged, and the respected among us. The true measure of our character is how we treat the poor, the disfavored, the accused, the incarcerated, and the condemned.

Just Mercy (2014)

Discussion Questions

  1. What do these quotes tell us about the rule of law?
  2. Why might this matter under a rule of law system?
  3. Do these quotes highlight challenges we face today to upholding the rule of law? What about in the future?
  4. Why do you think we should care about the rule of law?
  5. What questions do you have about the rule of law?

Student Group 2 Handout

Government power is bound by the law

Government of Laws, Not of Men

John Adams
Article XXX. In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.

Constitution of the Commonwealth of Massachusetts (1780).

Government Bound by Rules

F.A. Hayek
Nothing distinguishes more clearly conditions in a free country from those in a country under arbitrary government than the observance in the former of the great principle known as the Rule of Law. Stripped of all technicalities this means that government in all its actions is bound by rules fixed and announced beforehand— rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge.

The Road to Serfdom (1944)

In America the Law Is King

Thomas Paine
But where, say some, is the king of America? … In America the Law is King. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.

Common Sense (1776)

Governing the Government

James Madison
If men were angels, no government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

 

Federalist Paper No. 51 (1788)

Cutting Down the Law

Robert Bolt
William Roper: “So, now you give the Devil the benefit of law!”
Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”
William Roper: “Yes, I'd cut down every law in England to do that!”
Sir Thomas More: “Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!”

A Man for All Seasons (1960)

Government Disregard for the Law

John W. Whitehead
“The time to act is now, before it's too late. Indeed, there is power in numbers, but if those numbers will not unite and rise up against their oppressors, there can be no resistance.

You can't have it both ways.
You can't live in a constitutional republic if you allow the government to act like a police state.

You can't claim to value freedom if you allow the government to operate like a dictatorship.
You can't expect to have your rights respected if you allow the government to treat whomever it pleases with disrespect and a utter disregard for the rule of law.”
A Government of Wolves: The Emerging American Police State (2013)

Discussion Questions

  1. What do these quotes tell us about the rule of law?
  2. Why might this matter under a rule of law system?
  3. Do these quotes highlight challenges we face today to upholding the rule of law? What about in the future?
  4. Why do you think we should care about the rule of law?
  5. What questions do you have about the rule of law?

Student Group 3 Handout

Laws are shared openly and enforced fairly

Make Laws That People Should Respect

Elizabeth Cady Stanton
To make laws that man can not and will not obey, serves to bring all law into contempt. It is very important in a republic that the people should respect the laws, for if we throw them to the winds, what becomes of civil government?

Address Before 10th National Woman’s Rights Convention (1860).


A Way of Being in the World

Paul Kahn
The rule of law is a social practice: it is a way of being in the world. To live under the rule of law is to maintain a set of beliefs about the self and community, time and space, authority and representation. It is to understand the actions of others and the possible actions of the self as expressions of these beliefs. Without these beliefs, the rule of law appears as just another form of coercive governmental authority.

The Cultural Study of Law (1999)

Rule Forty-Two

Lewis Carroll
At this moment the King, who had been for some time busily writing in his notebook, cackled out ‘Silence!’ and read out from his book, ‘Rule Forty-two. All persons more than a mile high to leave the court.’

Everybody looked at Alice.

‘I’m not a mile high,’ said Alice.

‘You are,’ said the King.
‘Nearly two miles high,’ added the Queen.
‘Well, I shan’t go, at any rate,’ said Alice: ‘besides, that’s not a regular rule: you
invented it just now.’
‘It’s the oldest rule in the book,’ said the King.
‘Then it ought to be Number One,’ said Alice.
The King turned pale, and shut his note-book hastily. ‘Consider your verdict,’ he
said to the jury, in a low, trembling voice. …

‘No, no!,’ said the Queen. ‘Sentence first—verdict afterwards.’

‘Stuff and nonsense!’ said Alice loudly. ‘The idea of having the sentence first!’

‘Hold your tongue,’ said the Queen, turning purple.

‘I won’t!’ said Alice.

‘Off with her head!’ the Queen shouted at the top of her voice. Nobody moved.

‘Who cares for you?’ said Alice, (she had grown to her full size by this time.)

‘You’re nothing but a pack of cards!’

Alice’s Adventures in Wonderland, “Chapter XII: Alice’s Evidence” (1865)

What Makes a Law Just

Dr. Marin Luther King, Jr.
Let us consider a more concrete example of just and unjust laws. An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal. Let me give another explanation. A law is unjust if it is inflicted on a minority that, as a result of being denied the right to vote, had no part in enacting or devising the law. Who can say that the legislature of Alabama which set up that state's segregation laws was democratically elected? Throughout Alabama all sorts of devious methods are used to prevent Negroes from becoming registered voters, and there are some counties in which, even though Negroes constitute a majority of the population, not a single Negro is registered. Can any law enacted under such circumstances be considered democratically structured?

Sometimes a law is just on its face and unjust in its application. For instance, I have been arrested on a charge of parading without a permit. Now, there is nothing wrong in having an ordinance which requires a permit for a parade. But such an ordinance becomes unjust when it is used to maintain segregation and to deny citizens the First-Amendment privilege of peaceful assembly and protest.

Letter from a Brimingham Jail (1963)

Discussion Questions

  1. What do these quotes tell us about the rule of law?
  2. Why might this matter under a rule of law system?
  3. Do these quotes highlight challenges we face today to upholding the rule of law? What about in the future?
  4. Why do you think we should care about the rule of law?
  5. What questions do you have about the rule of law?

Student Group 4 Handout

Judiciary is independent and courts are fair and impartial

No Free Society Without Law and Independent Judges

Justice Felix Frankfurter
There can be no free society without law administered through an independent judiciary. If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny. Legal process is an essential part of the democratic process.

United States v. United Mine Workers (1947)

The Right to Face Your Accuser with a Lawyer

Justice Hugo Black
From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.

Gideon v. Wainwright, 372 U.S. 335 (1963)

The Judiciary is the Least Dangerous Branch

Alexander Hamilton
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

The Federalist No. 78 (1788)

Two Rationales for Judicial Diversity

Sherrilyn A. Ifill
I do think at some fundamental level we all understand the importance of judicial diversity. Promoting the inclusion of racial and ethnic minorities, women, and judges from a variety of backgrounds on our courts is a positive and important value. … There are two principal rationales that support the importance of judicial diversity. The first is one about which I believe there is largely a consensus. The other is perhaps more controversial. … The first, and I think widely accepted, view is that diversity on the bench promotes public confidence in the legitimacy of courts. It’s not that a judge from Iowa is biased in favor of Iowa litigants. It’s that if all the judges on the Circuit are from Iowa, then Minnesota litigants or Arkansas litigants might lose confidence in the fairness of the court. The importance of public confidence in the legitimacy of our courts cannot be overstated. Judges possess neither armies nor battalions. What courts rely on is the public’s acquiescence, the public’s sense that when a court issues a decision that decision is to be obeyed. It is a key feature of a country in which the rule of law is paramount. Decisions of our courts are to be complied with, even when we disagree with them. … But the public’s confidence in the judiciary must be earned. …

The second reason that judicial diversity is important is a bit more controversial but I think it is important to discuss it openly. That is the view that diversity on the courts enriches judicial decision making that the interplay of perspectives of judges from diverse backgrounds and experiences makes for better judicial decision making, especially on our appellate courts. This view invites some controversy; it inevitably leads to concerns about impartiality, and whether judges are obeying their duty to decide cases based on the facts and law of the case before them, not on their own predilections or views.

“Judicial Diversity,” The Green Bag (2009)

When Our Judiciary Becomes Intertwined in the Political Process

Justice Sandra Day O’Connor
The founders of our nation saw fit to make federal judges independent of the other two branches, the two political branches, so that they would not be beholden to those two political branches in the subsequent interpretation of judges of the laws and the rights of citizens. The founders realized there has to be some place where being right is more important than being popular or powerful and where fairness trumps strength. And, in our country, that place is supposed to be the courtroom. …

In order to dispense the law without prejudice, judges have to be sure they are not subject to political retaliation for their judicial acts. But many states, in the United States today, don’t apparently agree with this concept or apparently with the founders of the Constitution on that idea. More than 80%, if you look across the country, at all states and local judges—I guess that includes justices of the peace and the whole crew—80% of them have to win a political election to gain office or to stay there. …

Public support for judicial elections is a system of the weakening of judicial independence in this country. It’s not a reason for it. Many voters in states that elect judges, we know also, are more cynical about the courts. They’re more likely to believe that judges legislate from the bench. They’re less likely to believe that judges are fair and impartial. And it’s this distrust of the judiciary that makes voters more inclined to elect their judges, rather than to look at another system of appointment. And if you don’t believe, as a citizen, as a voter, that judges can be fair and impartial, you might want to select your judges by a process that you think would be most likely to result in a judge who’s partial to you and your views.

“State Courts and U.S. Supreme Court Rulings: Will Caperton and Citizens United Transform the

Ways States Pick Judges” 2010.

Political Winds

Caroline Kennedy
The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing.

JFK Awards Speech, 2012

Discussion Questions

  1. What do these quotes tell us about the rule of law?
  2. Why might this matter under a rule of law system?
  3. Do these quotes highlight challenges we face today to upholding the rule of law? What about in the future?
  4. Why do you think we should care about the rule of law?
  5. What questions do you have about the rule of law?