March 03, 2021

What is power under the rule of law?

By Kate Brown

            Under the rule of law, power is the sovereign will of the people expressed as non-arbitrary laws that—theoretically, if not perfectly in practice— apply to everyone equally.  This sovereign power also limits the exercise of governmental power so that it does not exceed the authority granted to it by the people. 

            There are two parts to this that are downright revolutionary.  The first is the fact that the people are sovereign—not some divine-right monarch, or some combination of kings, lords, and commons.  The people set the terms of how they will be governed in written constitutions. The second is that the people limit the exercise of power by their government through laws that are not capricious or arbitrary, and that apply uniformly, even to those leaders and representatives who enact and enforce the people’s law.  Together these two innovations in political science provide a profound blueprint for self-government:  the people are in charge, they are the fountain of authority from which the rules are made, and the rules apply to everyone.

            The United States of America did not directly import this particular blueprint for power from Great Britain, though British constitutionalism was indispensable to our thinking on the matter.  King George III inherited a monarchy limited by constitutional revolution, the Glorious Revolution of 1688/89, which shifted the locus of sovereignty in Britain:  the king was no longer the divine-right, absolute, arbitrary, fountain of law and justice of the past, but instead, Parliament—the House of Commons and the House of Lords—when working in concert with the king, constituted the ultimate authority in Great Britain and its empire.  This revolution in constitutionalism made us North-American colonists incredibly proud to be liberty-loving Englishmen and women, until, of course, taxes, declarations of parliamentary will, quartering of troops in private homes, and tea parties changed our minds. 

            But if we did not have the benefit of the legacy of the Glorious Revolution—locating sovereignty in a body representing all the people in the realm, and linking that to Parliament’s lawmaking function—we would not have been as well situated to make the intellectual leap to we, the people, are sovereign.  It wasn’t easy to put this popular sovereignty into practice; it took a great deal of experimenting during the 1770s and 1780s to figure out just how to implement this quite radical notion.  And yet, the combination of historical research and hindsight, paired with innovative experimentation across the states, the framers of both state constitutions and the US Constitution managed to create and execute an enduring framework whereby we, the people, are in charge. 

And thus our American system: the people are sovereign—not your president, your member of Congress, your governor, or your state representative.  You—we—the people wield the ultimate power to make law, to make the rules that are meant to apply to all, equally, and to ensure that we all live under, not above or apart from, those rules. This innovation in political thought, and its implementation in constitutional government, is an American marvel, and in its profundity, is truly extraordinary.

Kate Elizabeth Brown is a professor of history at Western Kentucky University.