This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article discusses the Rule of Law in the United States and aspects associated with it.

It has been published by Rachit Garg.


Generally speaking, the principle of the Rule of Law, as pronounced by Dicey, signifies the supremacy of the law and that no man is above the law. A collection of goals or principles known as the ‘Rule of Law’ that are intended to maintain justice and order in society. Every nation works to implement the concept of the Rule of Law, which is characterised by no one being above the law, treating everyone equally before the law, holding everyone accountable for the same laws, having transparent and fair procedures for enforcing the law, having an independent judiciary, and guaranteeing human rights to every individual. The Rule of Law’s effective enforcement, along with the government, also rests on the citizens of a nation, and therefore, without the latter’s role in the same, no country can continue to have a society governed by the concept of the Rule of Law. 

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Pledging to uphold the law, judicial processes, governing bodies, signs, and signals stands as a prime duty of every individual. Imagine if everyone in your neighbourhood decided they did not want to be bothered with, for instance, traffic restrictions and lights. Your neighbourhood’s streets would swiftly degenerate into a chaotic and unsafe environment. Police personnel may be ignored entirely or overburdened while attempting to intervene. 

Americans “practically think and breathe in legal terms,” according to the Danish academic Helle Potsdam. Even before the United States became a country, colonists discussed how a new nation should be governed by laws rather than specific people like kings or queens, as they had seen in Britain and other countries. Thomas Paine, one of the colonists, published a booklet titled Common Sense in 1776 by modern standards which eventually became a best-seller. He explained how “law is king in America”. The protection of individual rights, due process of law, and judicial review are at the core of the Rule of Law in America. Thus, the Rule of Law with respect to the United States has been a long thought process. This article intends to discover the roots of the Rule of Law embedded in the soil of the United States, thereby focusing on current trends in this concept and how nations across the globe are drawing inspiration from the same. 

USA and the Rule of Law : the relationship

The Rule of Law framework in the United States was not developed by accident by its Founding Fathers. Before the United States was founded, there were numerous rule-of-law regimes. The Rule of Law system in the United States is quite similar to earlier rule of law systems, which is where the Founding Fathers got their inspiration from. The legal ancestry of the United States can be partially traced to ancient Babylon. The Rule of Law systems frequently focuses on issues such as who has the authority to rule, the legal foundations of the law, the structure of government, substantive and procedural legal obligations, dispute resolution procedures, and the repercussions of legal violations.

In the United States, there are two types of constitutional liberty: 

  1. That which, in general, is framed by political checks and balances on government action, and 
  2. That which, in particular cases of encroachment, is guaranteed by the guarding hand of judicial review of statutes, acts of administrative agencies, and lower court decisions. 

The outright rejection of specific powers, such as the ban on certain sorts of potential acts, and the general reservation to the people and the various states of any powers not expressly granted to the federal government are the “checks and balances” of the federal Constitution.

Examples of prohibitions that expressly limit the authority of Congress include those that forbid bills of attainder and ex post facto laws, as well as restrictions on the freedom of the press and the right to practise any religion. Similar limitations and denials of authority to the state executive and legislative branches are also found in other states Constitutions. The federal Constitution and the states generally follow the same pattern of restrictions on these local levels of sovereignty. This itself is responsible for upholding the spirit of the Rule of Law. 

All facets of American life are governed by the Rule of Law. For instance, traffic laws specify who has the right of way, and environmental laws and regulations specify what we are permitted to release into the earth, the air, and the water. Additionally, public health regulations on where and how we might associate with others have had an impact on the majority of us during the Covid 19 pandemic. The fact that America upholds the Rule of Law does not imply that our legal system is fault-free since no system affected and managed by humans is ever fault-free. One stark illustration is the fact that the US Constitution allowed slavery in some areas of the nation until the 13th Amendment was approved in December 1865 and that it barred women from voting in federal elections until the 19th Amendment was ratified in August 1920.

There have been many instances where the Constitution and other laws and regulations have been construed in ways that ultimately brought disgrace to the country, even when the literal text of the Constitution did not present an issue. For instance, the US Supreme Court declared in Dred Scott v. Sandford in 1856 that individuals of African heritage were never intended to be and could never be citizens of the United States. People of African heritage had “no rights which the white man was compelled to respect,” according to the nation’s top Court.

The Supreme Court ruled in Plessy v. Ferguson that States could segregate black people from whites for no other reason than the color of their skin in 1896, more than 30 years after the Civil War had been fought and 28 years after the 14th Amendment had overturned the Dred Scott decision by granting citizenship to African Americans. This ruling gave rise to the idea known as “separate but equal,” which, despite sounding somewhat impartial, was a moral and practical farce. But until it was overturned by the decision in Brown v. Board of Education (1954), separate but equal, remained the US law and the rationale for segregating students in some parts of the country in public places like restaurants, hotels, and public transportation until the Civil Rights Act of 1964 was passed.

Presidential disregard for the Rule of Law

  1. Earlier, American Presidents frequently declined to enforce or submit to the law when it conflicted with their goals, which is another example of how little regard there was for the Rule of Law at the time. A great illustration is Worcester v. Georgia (1832), a case heard by the US Supreme Court. In one instance, Samuel Worcester, a missionary, intended to preach to the Native Americans in Georgia’s northern region, but Georgia law forbade all white males from residing there without a state permit. The state law was overturned after an appeal to the US Supreme Court, which ruled that any authority to give licenses pertaining to Native Americans was a federal one rather than a state power.
  2. Only a few years after Worcester v. Georgia (1832), the then President of the United States disregarded the law once more. The Mormons, also known as The Church of Jesus Christ of Latter-day Saints, established many communities in Missouri in 1838. Lilburn Boggs, the Governor of Missouri, issued the Executive Order Number 44, which made it legal to execute Mormons inside the state’s borders, out of concern for the group’s expanding economic, political, and military influence as well as their unusual beliefs in Christianity. In retaliation, state militias killed numerous Mormons and drove them from their homes while destroying their property.
  3. Following the Great Depression in 1929 as a result of the stock market crash, there was yet another striking instance of administrative disrespect for the law. In the 1930s, President Franklin D. Roosevelt sponsored a slew of radical economic laws that were intended, in his opinion, to jolt the slumping US economy out of its deep funk. Historians collectively refer to this set of economic laws as the ‘New Deal.’ But President Roosevelt was disappointed when the US Supreme Court rejected many important parts of his New Deal legislation. President Roosevelt sponsored the Judicial Procedures Reform Bill of 1937 in order to give him the power to appoint extra justices to the nine-member US Supreme Court, which he believed to be outdated and obstinate.

Sliding down of the Rule of Law based on circumstances in the US

  1. Despite the fact that the US is founded and grounded in the Rule of Law, there have been other instances in which their legal system has supported actions that discriminated against individuals based on their ancestry or in which their government has engaged in other actions that are inconsistent with the stated core values of the country. For instance, President Franklin Roosevelt signed an Executive Order in February 1942, a few months after Japan attacked Pearl Harbour, authorising the relocation of all people of Japanese ancestry, regardless of citizenship or immigration status, to internment camps. The Supreme Court determined that the forced incarceration of Japanese Americans did not violate the American Constitution in the case of  Korematsu v. United States (1944). 

Chief Justice John Roberts eventually recognised that Korematsu v. United States (1944) was “gravely erroneous the day it was decided”. Additionally, the late Antonin Scalia of the Supreme Court stated that the Korematsu ruling “upholding the incarceration of Japanese Americans was unjust,” but he also noted that “it could happen again in wartime.” 

  1. Americans’ devotion to their country’s ideals and the Rule of Law was under tremendous pressure during times of fear and national misery, including war. For instance, President Bush allowed the use of so-called “enhanced interrogation techniques” to interview detainees who were suspected of being terrorists following the 9/11 attacks. These improved interrogation methods are frequently referred to as torture. One would question how a country that takes pride in having legal systems that support individual dignity and the right to remain silent could possibly permit the torture of other people. The US has indeed done it, though, less than 20 years ago.
  2. Several recent events have led to new questions about where America stands in terms of its dedication to the Rule of Law. The Black Lives Matter Movement spurred a worldwide and unprecedented investigation into the readiness and commitment of the American judicial system to save Black lives. How is it that the “country of the free and home of the brave” leads the globe in the number of prisoners it houses, and how is it that the jail population is disproportionately made up of African Americans? The COVID-19 pandemic-related rules and restrictions have also sparked discussion about their legality and justification. 

For instance, Bill Barr, a former US Attorney General, said in September 2020 that “this had been the largest encroachment on civil rights in American history, other than slavery, which was a different kind of limitation.” He definitely spoke for some people when he suggested that such limits were incompatible with American ideals and proper legal standards.

  1. Last but not least, Senate Republican Leader Mitch McConnell addressed issues relating to the Rule of Law after the January 6, 2021 assault on the Capitol, which was intended to obstruct the Congressional counting of electoral votes in the 2020 Presidential election. He said, “… the mob was fed lies… they were provoked by the President and other powerful people, and they tried to use fear and violence to stop a specific proceeding of the first branch of the government.”

The American Constitution and the Rule of Law

The US Rule of Law is supported by the US Constitution. It declares that the law is supreme. As the Constitution grants power to both the people and the States, mentioning the phrase “We the people” is a crucial insertion in its Preamble. Notably, it does not emphasize individual rights, unlike the Magna Carta and the English Bill of Rights of 1689. Individual rights are certainly emphasized in the Bill of Rights, but those amendments were adopted after the Constitution was drafted. They are referred to as amendments to the Constitution for this reason. The supremacy of law was put into effect by the US Constitution through structure and procedures. Giving the government the authority to carry out its duties without fostering tyranny was of great concern to the Founding Fathers. They included procedures to guarantee the Rule of Law. Indeed, John Adams stated in the Massachusetts Constitution that “ours is a government of laws and not of men.”

The Constitution, which was drafted by a special convention in 1787, is the most obvious defence of the Rule of Law in the US. The cornerstone of American legal culture is this structure for efficient and constrained governmental action. The Supreme Court interprets and upholds the Constitution, which is pledged to by all public servants. The Supreme Court has the power to definitively interpret the meaning of the Constitution because it is “the supreme law of the land.” The Court may declare that legislation passed by the Congress, a state legislature, or an administrative decision is unconstitutional and, as a result, invalid, that is, without legal effect, in accordance with the institution of ‘judicial review.’

‘Due process of law’ refers to both formalities and content in the United States. A laissez-faire economy had its legal expression in ‘substantive due process.’ It is well known that since the New Deal era, when the laissez-faire economic system could no longer be supported, the idea of substantive due process has come under heavy scrutiny. The Diceyan notion of the Rule of Law, which places emphasis on the substance of the law and was also “the legal expression of laissez-faire” and which has also been questioned in England since the 1930s, is consistent with substantive due process. But since the 1960s, the Supreme Court of the United States has constructed substantive due process once more, and this time, not to defend property rights but to defend fundamental freedoms that aren’t expressly guaranteed by the Constitution.

The President serves for a four-year term, and each state has two senators, among other specific stipulations found in the Constitution. The Constitution, on the other hand, contains many more abstract ideas and notions that call for a careful and original interpretation. As a result, the Constitution grants Congress the power to regulate ‘commerce’ (sometimes referred to as ‘interstate commerce’) between the states, however, it is not clear exactly what this entails. The first 10 amendments to the Constitution, known as the Bill of Rights, were adopted shortly after the Republic was created and speak eloquently of ‘the freedom of speech,’ ‘due process of law,’ and ‘cruel and unusual punishment.’

Simple majority rule is not necessarily the foundation of the American democratic system. There are certain principles that are so important to the nation that the majority has agreed not to interfere in these areas. For instance, the Bill of Rights was enacted because it was believed that principles like equal treatment, freedom of speech, and due process of law were so crucial that, without a constitutional amendment, no one, not even the majority, should be able to alter them. The Rule of Law is a principle under which all persons, institutions, and entities are accountable to laws that are:

  1. Publicly promulgated,
  2. Equally enforced,
  3. Independently adjudicated,
  4. Consistent with international human rights principles.

While hearing complaints made by minority organisations or individuals who may possess minority viewpoints, the courts play a crucial role in upholding the Rule of Law. The American form of governance places a premium on equality before the law so that courts may decide whether or not it is appropriate to hear arguments from all sides of a dispute when a majority violates the rights of a minority, whether intentionally or accidentally.

History of the development of the Rule of Law along with the American Constitution

  1. The history of the United States demonstrates how difficult and occasionally harsh and turbulent efforts have been made to uphold the promise of the Rule of Law, as during the major conflicts between capital and labor in the nineteenth and twentieth centuries or the civil rights movement in the 1960s. Creating a legal system that would incorporate and benefit all people involved a lot of difficulties.
  2. Despite the Declaration of Independence’s tenet that “all men are created equal,” the issue of slavery was not addressed when the Constitution was written and approved. Black Americans made up a sizable portion of those who were oppressed cruelly but legally. Slavery wasn’t the only issue, as in the nineteenth century, employers were given almost total power in the workplace while women’s rights to equal treatment were disregarded and rejected. This was done behind the ideological facade of “freedom of contract.”
  3. However, the norm (Rule of Law) only calls for the constant execution of pre-established laws when it is strictly understood. The categories and rules don’t need to be scrutinised by the courts in any serious way. Therefore, even while the law may be made up of general principles that are consistently enforced, it may also be based on bigoted and prejudiced beliefs about women, racial groups, immigrants, or everyday laborers. This was an error in the history of the American Constitution.
  4. The phrase ‘Rule of Law’ as it is used by followers of Anglo-Saxon law is not one that can be precisely defined to imply the same thing to everyone. For the purposes of the American analysis here, it is assumed to be the collection of principles of fundamental individual legal rights permeating institutions of government and endowed with the necessary authority for enforcement, as well as the processes by which such principles may be put into practice to give rise to those rights. These components of the law, namely, precepts, institutions, and procedures, serve to safeguard the fundamental rights and interests of the individual that society has secured. They do this by limiting the power of the state.
  5. The Equal Protection Clause of the Fourteenth Amendment was subject to judicial interpretation in the decades that followed the Civil War. This view was constrained and formalistic for almost fifty years. For instance, in 1883, the judges supported legislation that prohibited blacks and whites from having sexual relations and getting married. Due to the statute’s equal application to both races and to all members of each race, they claimed the measure was constitutional. Thirteen years later, the Supreme Court ruled that “separate but equal” accommodations for blacks and whites on public transit and other facilities, such as public schools, satiated the requirement of equal protection.
  6. It is challenging to claim that the judicial arm of the American government functioned as a co-equal branch before the middle of the 20th century. Instead, throughout the first 175 years or so of the country’s existence, the judiciary, which was in charge of upholding the law, was sometimes subject to the whims of the executive branch or was just ignored. The absence of monumental buildings for the judicial branch, current perceptions of the strength of the judicial branch in relation to the executive branch and an analysis of several instances in which various Presidents of the United States displayed disdain for enforcing laws that went against their personal beliefs all point to a lack of respect for the Rule of Law in the early United States.
  7. By the middle of the 20th century, this idea of equal protection had undergone a significant revision. The Supreme Court revised its view of legal equality as a result of growing concern for civil rights, and it rejected unconstitutional legislation that was based on the idea that certain persons are inherently more deserving than others because of their color, sex, or ethnicity. The judges sought a fresh interpretation of legal equality that took into consideration opportunities missed and other social justice factors. They started to realise that if the law is oppressive in and of itself or does not account for oppression, then people are not equal before the law.
  8. Federal common law, constitutional law, statutory law, rules and regulations issued by administrative agencies, as well as international agreements, make up the United States federal government’s Rule of Law. Furthermore, there are a number of state and local governments with distinct rule of law systems within the United States. Additionally, the federalist nature of American governance permits the coexistence of several systems of the Rule of Law. These systems are the federal government and the state governments of the United States.

The case of Brown vs. Board of Education and its contribution to the principle of the Rule of Law

It is impossible to pinpoint the precise turning point when the executive arm of the US government started to obey laws broadly and generally. Presidential acceptance of the doctrine of the Rule of Law most likely developed as a result of a combination of time, integrity, luck, political advantage, and significant social and cultural changes brought about by World War II. Presidents of the United States thus surrendered to the Rule of Law’s bridle beginning in the 1950s. The US Supreme Court’s ruling in Brown v. Board of Education (1954) was one of the turning points for the American Rule of Law.

In that ruling, the Supreme Court rejected the notion that racial segregation in public settings, including schools and other institutions, could provide equal protection under the law. The Court made significant efforts to defend the rights of minorities, women, and criminal defendants over the same time period. The Court regarded itself in its endeavour as an active force guiding the community toward a more complete realisation of its fundamental values:

  1. The first lesson is that the American Constitution is restrictive in certain ways and liberal in others. In essence, the generations of Americans who are still alive today have decided to abide by the laws and ideas that their forebears created and accepted. This is a component of accepting a constitution. The Constitution further restrains persons in positions of authority from misusing the same, and this rule applies to all officials, including elected representatives of the people. As a result, democracy is constrained by a constitutional system and is held in check by the Constitution.
  2. The Constitution, on the other hand, becomes laxer because it leaves a lot up to future generations. It is intended to serve as a foundation for the development of self-government. This means that each generation has the freedom to determine for itself what policies to pursue, as long as those policies do not contravene constitutional principles and laws. Another way that the Constitution became less rigid was by means of abstract sentences that were to be understood in the context of brand-new information and circumstances.
  3. The Constitution’s twin message of scepticism and optimism is another important lesson from the aforementioned case. These two viewpoints are in opposition to one another under American law. What is most obvious in the law, a variety of tools to keep men in check, is supported by scepticism. Though more subtly expressed, confidence is nevertheless ubiquitous. It is obvious that anytime the Rule of Law depends on confidence, harmony, goodwill, and self-interest. The conflicting attitudes toward the law and justice are evoked by the themes of scepticism and faith. One perspective, grounded in moral scepticism, sees the law as a set of restraints. Without the law, there would either be anarchy, repression, or both. Its key duties include preventing misuse of power and maintaining peace. As an alternative, consider legislation as a means of achieving human aspirations. According to this perspective, legal experience suggests a certain level of order and social control. 
  4. Where there is respect for the law, order cannot be bought at any cost. Costs are incurred, and expectations are raised. People believe that while maintaining order, police brutality should be avoided and daily necessities should be respected. The result is a vision of the law as a domain of value, focused on justice, fairness, and civic engagement rather than force, or even just coercion. Every legal system is a special fusion of doubt and assurance.

Rule of Law and its demise from 2016 onwards in the United States

  1. Under former President Trump, respect for the law in the executive branch of the US government was fast declining. Through the Executive Order 1379644, President Trump attempted to impose a travel restriction on Muslims from a number of countries in response to terrorist threats. Then acting US Attorney General Sally Yates instructed the Justice Department not to implement the ban after US federal courts ruled that a number of the Executive Order’s sections were unlawful because they unfairly singled out Muslims from particular nations. According to Yates, the Executive Order’s consequences were in conflict with the “solemn duty of this institution (the US Department of Justice) to always seek justice and stand for what is right.”
  2. Yates was abruptly fired by Trump, who called her comments a “betrayal” of the US Department of Justice. He then named a new Acting Attorney General to carry out his orders. Additionally, Trump stated that illegal immigrants may not receive the due process protections that the US Constitution expressly guarantees.
  3. President Trump “explicitly advocated denying undocumented immigrants their right to due process, contending that anyone who cross the border into the United States illegally was to be considered as invaders and must promptly be deported without trial or an appearance before a judge” in June 2018. Trump’s demands would go against fundamental principles of the U.S. Constitution because everyone in the American territory has a right to due process regardless of whether they are citizens or not. While urgently required, widespread immigration reform is an issue for the legislative branch, it cannot and should not be settled by the executive branch acting in haste and unilaterally.
  4. President Trump has faced accusations that he conspired with Russia to sway the 2016 presidential election in his favour ever since entering office. In order to look into these allegations, Robert Mueller, a former director of the Federal Bureau of Investigation (FBI), was appointed as special counsel in May 2017 by the Department of Justice. Despite Trump’s frequent claims that this probe was a “witch hunt,” Mueller and his team charged Trump’s campaign advisor Paul Manafort with engaging in questionable financial activities in Russia and Ukraine. Trump’s attorney, Michael Cohen had admitted guilt to several charges of unlawful business dealings that were directly connected to Trump’s 2016 presidential campaign.
  5. Mueller had also uncovered a number of instances in which President Trump had obstructed the course of justice in relation to Russia’s inquiry. It was probably only a matter of time until President Trump was accused of criminal offences connected to his 2016 campaign, especially with Mueller’s Russia probe coming to an end. As a result, the US House of Representatives probably decided to start the impeachment process against President Trump, just as they did with President Nixon. To get ready for this challenging chapter in the United States fight for the Rule of Law, as Trump won’t go away lightly,  44 former senators from both the Republican and Democratic parties wrote to the then senators. They asked their modern counterparts to defend “the Rule of Law and their institutions’ capacity to act freely and independently.” For without the Rule of Law the rights and promises espoused by the United States are hollow.

Role of the US judiciary in upholding the Rule of Law

The Rule of Law legitimises the law of the land. It defines unambiguous standards of conduct, creates (or captures) precedent, and severely undercuts any claim of legal ignorance. Additionally, it holds everybody to the same standards even though many previous legal systems had different criteria depending on the status of the individual. For instance, men frequently had distinct privileges over women. The legal status of free people and slaves was distinct, while indentured servants frequently fell under entirely different categories. Systems of fairness (i.e., equal justice under the law) subsequently emerge when people are held to the same standards, at least for those who belong to the same class.

To guarantee that the Rule of Law is upheld, an independent judiciary is required. Judges who are independent of external pressure and influence can render fair judgments based only on transparency and the governing law. Judges resolve disagreements between parties and interpret and apply the law to particular matters that are brought before them when two parties are at odds.

The judiciary is frequently asked to uphold restrictions on the executive branch. The judiciary guards against abuses committed by other government agencies. It safeguards the rights of those unable to defend themselves, as well as minorities of all kinds, from the power of the majority. 

In a democracy, it is up to the legislature to create the rules and regulations that govern how society operates. The executive branch is in charge of governing society in conformity with the legislatively created legal framework (to the extent that state agents are required to carry it out). The judiciary’s role is to decide disputes between members of society and the state, as well as those arising within society. Judges are not law enforcement personnel, even if they are employed by the government. Judges are not prosecutors, and they neither make arrests nor seek to establish a defendant’s guilt. Their responsibility is to ensure that neither party is affected by the public’s opinion nor their own personal beliefs when following the rules of court proceedings.

You benefit daily from an open and accessible court system, even if you never have to use it yourself. Employers are required to abide by labour laws; drivers are required to observe traffic laws; landlords are not allowed to remove tenants without good reason; and supermarkets must make sure that no bad meat is being sold to customers. Your daily life might be very different if the judicial system weren’t able to enforce the rules against these acts.

If businesses could not rely on the courts to defend their rights, retail and trade would come to a halt. In actuality, businesses heavily rely on the legal system to defend their contractual and property rights. Legal and commercial responsibilities cannot be guaranteed to be upheld if businesses cannot depend on being able to turn to the courts when necessary. The judiciary is frequently asked to render a decision about the relationship between two, or possibly all three, powers of the state. The Rule of Law must be followed in all of this. The foundation of the Rule of Law is an impartial and effective court system. Therefore, the purpose of any independent and effective judicial system must be to guarantee the impartial, fair resolution of legal disputes while safeguarding the rights and liberties of everyone seeking justice.

Judicial power as a subject of the Rule of Law

In democratic states that are governed by the Rule of Law, the judicial branch of government is established as part of the constitutional framework. The foundation of judicial authority as a part of that Constitution is, by definition, just as legitimate and necessary a part of the democratic state as the other two component powers, assuming the constitutional framework of such a state is legal. All member states have some type of constitution that is recognised as the state’s legal basis in various ways (such as through long-standing custom or a public vote). 

All member states’ constitutions explicitly or indirectly recognise and establish the function of the judiciary, which is tasked with upholding the rule of law and making decisions by applying the law in line with legislation and case law. Therefore, the fact that a Constitution establishes a court to fulfill this function must in and of itself grant legitimacy to the judiciary as a whole. Each judge acts in accordance with his or her power as a member of the judiciary while rendering a decision in a case. Therefore, not only does the judiciary as a whole but also each individual judge have legitimacy due to the fact that the judiciary is a part of a state’s Constitution.

For the sake of upholding the Rule of Law as well as those who seek and demand justice, judicial power must be used. Because of this, the court must show the other branches of government and the general public how their power, authority, and independence have been used. The need for a more efficient judicial system has grown among users of the courts. Better judicial access has been deemed to be more significant. Aspects of proving ‘accountability’ include effectiveness and accessibility.

The other state powers must exercise the same level of responsibility and constraint as the judiciary. Above all, the state’s other powers must acknowledge the judiciary’s rightful constitutional role and make sure it has the resources it needs to carry it out. As essential to the health of a contemporary democratic state regulated by the Rule of Law as the duties of the legislative and executive branches of government are the roles of deciding all legal disputes and interpreting and executing the law.

The constitutions of each member state, which are all democracies with the principle of the Rule of Law, serve as the foundation for the legitimacy of the judiciary and of particular justices. The judiciary is established by the constitution, which grants ‘constitutional legitimacy’ to both the judiciary as a whole and the individual judges who execute their authority as members of the judiciary. Legislative or executive actions brought about as a result of changes in political power must not be allowed to compromise the constitutional validity of individual judges who have the security of tenure.

What happens when the judiciary itself fails in terms of upholding the Rule of Law

The judiciary in every state is considered the prime holder of the principle of the Rule of Law. Decisions pronounced by esteemed judges are considered with the highest regard in the state. When it comes to the United States, the judiciary has played a key role in upholding the supremacy of the law over everything, but the same judiciary has time and again come up with decisions that have not only questioned its integrity but have also had grave consequences on the citizens, owing to its binding nature on them. It is disheartening to note that the landmark decisions that have been discussed hereunder have all owed their source to the Supreme Court, which is considered to be the court of the highest regard. Therefore, decisions of the Supreme Court, which are not subjected to further appeals, contribute to the factor of being the Rule of Law in its entirety. 

Free blacks were not citizens of the US : Rule of Law in this regard

The US Supreme Court’s decision in the 1857 case of Dred Scott v. Sandford ruled that Black people were not to be considered American citizens and therefore were not allowed to bring legal claims before any court of law in the US. Dred Scott, a Black slave who sought to obtain his freedom by legal action, was rejected by the Court in the aforementioned landmark case.

This old complex case that created a rift between the State and the judiciary, thereby dicing the application of the principle of the Rule of Law in the US, demands discussion as the facts surround one of the finest problems the world is facing even today, that is, racial discrimination. The Court’s ruling in Scott v. Sandford (1857) caused a political uproar, escalating tensions between the North and South and paving the way for the Civil War. Less than six months after the ruling, Justice Curtis resigned from the Court, unhappy with the political stance the Court had chosen and with his adversarial relationship with Justice Taney. His opposition was published as pamphlets and widely disseminated by abolitionists, but Curtis remained a reluctant hero for their cause and avoided getting involved in politics. He vehemently opposed the radical Republican program for Reconstruction after the war and stood up for President Andrew Johnson during his impeachment trial.

Background of the case of Dred Scott v. Sandford (1957)

  1. On March 6, 1857, the United States Supreme Court ruled (7-2 majority) that Dred Scott, a slave, was not entitled to freedom because he had lived in a free state or territory (where slavery was illegal). Further, the Court had opined that African Americans were not and could never be citizens of the United States and that the Missouri Compromise (1820), which had declared all territories, west of Missouri and north of latitude 36°30′ free, was unconstitutional. The choice fueled the sectional debate and brought the nation one step closer to civil war. 
  2. John Emerson of Missouri was the owner of a slave named Dred Scott. Emerson made a number of moves in 1833 while serving in the American military. He transported Scott from the slave state of Missouri to the free state of Illinois and then into the Wisconsin Territory (a free territory). During this time, Scott married Harriet Robinson, who later joined the Emerson family. Emerson got married in 1838, and in the early 1840s, he and his wife moved back to Missouri with the Scotts. Emerson passed away there in 1843.
  3. Scott reportedly tried to retain his freedom from Emerson’s widow, who opposed the sale. In 1846,  Harriet and Dred Scott filed individual proceedings in the Missouri Court of St. Louis with the help of lawyers against slavery, and they became enslaved by living in free states and territories. It was later agreed that only Dread’s proceedings would proceed. The decision in this case also applies to Harriet. The case was long thought to be rare, but historians later showed that hundreds of liberation proceedings were filed by or on behalf of slaves in the decades leading up to the Civil War.

Decision given by the US Supreme Court in Dred Scott v. Sandford (1957)

  1. The Court’s ruling, written by Chief Justice Roger Brooke Taney, was maybe his poorest work to date. He disregarded precedent, twisted history, applied a rigid rather than flexible construction to the Constitution, disregarded particular powers granted by the document, and misconstrued the meaning of other more cryptic clauses. The citizenship problem was where his reasoning was arguably the most perplexing. He acknowledged that African Americans might be residents of a certain state and might even be allowed to cast ballots, as they actually did in several states. However, he contended that state citizenship and national citizenship were unrelated and that since African Americans were not citizens of the United States, they were ineligible to file a lawsuit in federal court.
  2. On Scott’s issue of freedom, Taney argued that he could not claim freedom because he lived in Illinois or Wisconsin. Whatever position Scott might have had in a free state or territory, after he returned to Missouri, his position was completely free, regardless of doctrine, “once free and always free”. He claimed to have relied on the land method.
  3. Taney’s ruling was harshly criticised by two justices, John McLean of Ohio and Benjamin R. Curtis of Massachusetts. By demonstrating that African Americans had cast ballots in a number of states at the time of the founding, Curtis specifically refuted the majority of Taney’s historical arguments.

Present stance of Dred Scott v. Sandford (1957)

Taney is remembered today only because of his explicit support for slavery and the sneaky comments he made about African Americans. When he died in 1864, he was accused and injured in the north. No matter what else he did, his name had always been associated with the name of a slave who did not want more than his freedom.

In reality, Dred Scott was liberated, but not by a legal process. They were set free in 1857 after being later purchased by the Blow family (who had originally sold Scott to Emerson). The next year, Scott passed away in St. Louis from tuberculosis. Harriet Scott had survived until June 1876, when the Thirteenth Amendment (1865)  was passed and the Civil War ended slavery in the United States. 

Expansion of gun rights by the US Supreme Court : a thrive in the Rule of Law 

On June 24, 2022, the US Supreme Court ruled that a century-old New York law that required applicants to show ‘proper cause’ and ‘excellent moral character’ in order to carry concealed weapons in public for self-defence violated the Second Amendment and so had to be overturned (New York State Rifle & Pistol Association Inc. v. Bruen (2022)). The rule passed in 1913 infringed a person’s Second Amendment right to ‘keep and carry arms,’ according to the 6-3 decision, which had the conservative justices in the majority and the liberal justices in dissent. The decision also represents the broadest extension of gun rights since 2010, when the Supreme Court applied a 2008 decision recognising an individual right to bear arms for self-defence inside the home to all 50 states.

The decision made by the Supreme Court in light of gun rights draws discussion for the sheer fact that the same stands against constitutional principles. The Constitution of a State is considered to be the supreme law of the land, hence an infringement of the same results in a contravention of the principle of the Rule of Law. 

Background of the expansion of gun rights in the US

The decision comes in the wake of the recent mass shootings that left 10 dead in a Buffalo, New York, grocery store on May 14 and 19 children and two teachers dead at an elementary school in Uvalde, Texas, on May 24. The ruling is also anticipated to trigger a flurry of legal actions to ease current state and federal limitations on carrying firearms in five states, namely, California, Hawaii, Maryland, Massachusetts, and New Jersey.

Decision concerning the expansion of gun rights made by the US Supreme Court

  1. In his majority judgement, Justice Clarence Thomas declared that New York’s licensing system was unconstitutional because it inhibited law-abiding residents from exercising their Second Amendment rights by requiring ‘proper cause.’ The opinion, written by Justice Thomas, does, however, allow that there might be some ‘sensitive places’ where firearms can be excluded, such as schools and churches, but it doesn’t specify where the line should be drawn, other than to say that a broad restriction like the New York law is unconstitutional.
  2. Relevantly, Justice Thomas cited Dred Scott v. Sanford, the historic 1857 case that determined free blacks were not citizens of the United States, at the outset of his judgement. Thomas asserted that anybody has the right to “keep and carry arms wherever they went” in accordance with the US Constitution, citing former Supreme Court Justice Roger Taney as precedent.
  3. Chief Justice John Roberts and Justice Brett Kavanaugh stated in a concurring opinion that they would support states’ rights to impose licensing, background checks, fingerprinting, safety training, and other restrictions on gun ownership. It was suggested that similar licensing legislation could be adopted by New York and other states.
  4. According to Justice Stephen Breyer’s 52-page dissent, there have been 277 documented mass shootings since the year 2022 began, or more than one each day on average. He added that many aspects of the history of firearms and their regulation are confusing, conflicting, or debatable and that, as a result, elected lawmakers are better qualified than courts to assess the needs of society today.
  5. Justice Alito criticised the dissenters in a concurring opinion for using the country’s gun violence to defend lawmakers’ freedom to pass laws like the permitting statute.
  6. In a statement, President Joe Biden expressed his ‘sad disappointment’ with the choice and once more pushed states to modify their laws to reduce gun violence. He stated that this decision would cause great concern for everyone as it goes against both common sense and the Constitution.

Change in abortion laws in US and the Rule of Law : a twist in the tale

On June 24, 2022, the US Supreme Court overturned Roe v. Wade, a significant decision that had established the constitutional right to abortion in the US in 1973. The Mississippi legislation, supported by Republicans, forbids abortion beyond 15 weeks, and the Supreme Court upheld it in a 6-3 decision. This historic decision sided with the state of Mississippi in the extremely contentious case of Dobbs v. Jackson Women’s Health Organization (2022), in which the Court tried to overturn Roe v. Wade (1973) and criminalise practically all abortions occurring at and after 15 weeks of pregnancy.

As a result of Roe v. Wade (1973), the Court determined in Planned Parenthood v. Casey, 1992 that states cannot adopt abortion restrictions that place an undue burden on the individual receiving the abortion. The 1973 Roe decision and subsequent High Court affirmations of Roe, according to Justice Samuel Alito, “must be reversed” because they were “egregiously erroneous,” the justifications were “exceptionally inadequate,” and the results were so “destructive” that they constituted “an abuse of judicial authority.”

UN human rights experts have condemned the US Supreme Court’s decision to overturn Roe v. Wade (1973), a nearly 50-year-old legal landmark that safeguarded women’s freedom to choose to have an abortion, and they have also urged President Joe Biden to take all necessary steps to lessen its effects. According to the experts, what has occurred in the US is a major defeat for female equality and the Rule of Law. The US Supreme Court has revoked the legal protections required to ensure that women and girls in the US can live with dignity with the stroke of a pen and without sound legal justification. The experts described the decision as a startling and perilous reversal of human rights that will endanger the lives and health of women.

Legality of abortion in the US

  1. The contentious decision has now turned the legality of abortion up to the States, which can now enact their own abortion laws without worrying about breaking Roe, which has for almost 50 years allowed abortions throughout the first two trimesters of pregnancy. 
  2. Abortion rights advocates were upset and concerned about how the ruling would affect both patients and providers as 22 states would prepare to restrict or outlaw abortions when the Court’s draft opinion, written by Justice Samuel Alito back in May, was published.
  3. The Mississippi decision is seen by pro-abortion activists as the end of the 50-year promise of national protection of reproductive rights, and they support letting each state decide whether to limit or outlaw abortion.
  4. While the Court was still considering the issue, a number of states expanded their efforts to restrict abortion. Several states passed 15-week prohibitions that were similar to Mississippi’s, while Texas passed a six-week ban that Idaho and Oklahoma had already imitated.

Future of abortion in the US 

The federal government is thought to be the most effective way to prevent states from passing anti-abortion laws, as these laws are already being enforced in different parts of the United States. A majority of Americans believe that abortion should be legal under most or all circumstances. The House of Representatives and the White House both believe that abortion rights should be made available to their citizens, but if they pass an abortion rights law in the Senate, it is likely to be blocked by the Republicans. It is unclear at this point how the issue of women’s rights will play into the midterm elections, but it seems like time will ultimately be the deciding factor.


A system of established laws that both the people and the government must abide by, allowing predictability and restraint of government activity, is known as the Rule of Law. People can learn what is expected of them in a society that operates under the Rule of Law. By offering techniques for resolving disputes, it offers a system that enables people of various cultures and faiths to coexist in harmony. The picture in the US with regards to the Rule of Law in recent times seems to be blurred because of the recent stance of the US Supreme Court in its decision-making. As the citizens alongside the government hope, better days are yet to come for the United States that rests on strong roots engraved under years of efforts of various scholars, writers, activities, and fighters who immensely contributed in setting up a robust Rule of Law system in the developed nation. 


  1. (PDF) The Rule of Law at Home and Abroad.
  2. The United States and the Rule of Law in International Affairs.
  3. The Rule of Law in the United States.


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