A Government of Laws, Not of Men: IJ’s Rule of Law Pillar

For much of human history, one person or a small group of people could rule at whim, imprisoning people the ruler did not like or confiscating property as he saw fit. One of the great advancements of classical liberalism was the creation of structures, like constitutions and bills of rights, that limit and control the arbitrary power of rulers. As philosopher John Locke wrote: “The end of law is not to abolish or restrain, but to preserve and enlarge freedom.”

In other words, the rule of law is the subordination of power to law. Perhaps its simplest formulation is in the Massachusetts Bill of Rights of 1780—we are to be “a government of laws and not of men.”

Since our founding in 1991, IJ has defended and strengthened four pillars of a free society: economic liberty, private property, free speech, and educational choice. The rule of law has been essential to all of these. But as IJ has grown to take on new challenges and restrain ever-encroaching government, some of that work is now squarely about the rule of law itself.

In parallel, as discussed elsewhere in this issue, we have achieved the primary objective of our educational choice pillar: to establish the constitutionality of choice programs. With that mission accomplished, we now have an opportunity to unite cases and projects that we’ve already been doing for a while under a new banner—the rule of law—and formalize a new IJ pillar for the first time in 35 years.

This area of work includes four familiar themes: 

Warrantless Surveillance—Protecting innocent individuals’ right to be secure against dragnet surveillance programs that invade privacy without warrants or due process. 

Fines and Fees—Challenging fines and fees schemes that impose excessive financial penalties or are aimed at generating revenue for the government rather than protecting public health and safety. 

Unjust Proceedings—Guaranteeing that Americans have a fair opportunity to be heard before they lose their property or their freedom. That means actual notice, a hearing before real judges and juries, and independent checks at every step from rulemaking to judgment.

Immunity and Accountability—Ensuring that abusive government officials are held accountable rather than shielded by unjustified doctrines, such as qualified immunity, and that people harmed by government have a path to vindicate their rights.

What so many of these cases have in common is that everyday people are peacefully living their lives and yet the government gets in their way. It surveils them while they drive, fines them for innocuous acts, subjects them to rigged court systems, mistakenly invades their homes in the early morning hours, and so on. When government actors sweep up people just doing the ordinary activities of life, our work in the rule of law pillar will guarantee a just process and accountability in government decision-making—almost the very definition of the rule of law.

In other words, we will hold the government to the law before, during, and after the fact. 

We now have an opportunity to unite cases and projects that we’ve already been doing for a while under a new banner—the rule of law—and formalize a new IJ pillar for the first time in 35 years.

Before, when we challenge schemes that deprive people of liberty and due process before any court case even commences, like our work challenging the surveillance of innocent drivers through automated license plate readers; so-called predictive policing schemes that target and harass people who might commit a crime; and excessive fines and fees that really amount to taxation by citation. 

During, when we ensure that individuals have a just process, involving real judges and juries, when the government commences an action against them—whether that involves taking their property in a sham courtroom run by prosecutors; demolishing homes without giving them any warning or opportunity to be heard; or a single agency acting as legislator, prosecutor, and judge to impose steep financial penalties.

And after, when we secure remedies for victims of government misconduct and ensure accountability for law-breaking officials at the federal, state, and local levels.

As with our other pillars, IJ will not become involved in every issue that could conceivably arise under the rule of law. For instance, the writ of habeas corpus is a touchstone principle of the rule of law, but IJ will not jump into cases that seek to free wrongfully held people from prison, however important that may be. Our friends at the Innocence Project, along with other groups, will vindicate those rights and others that the concept of the rule of law encompasses. 

But the issues delineated above—ones that are already touchstones of IJ’s mission and ones that we will expand in future years—are essential to advancing freedom and securing justice under the rule of law.

There is a renewed appreciation today that, without the rule of law, one is at the arbitrary will of those in power—and there is nothing you can do if your rights are violated. As timely as our work under this new pillar is, it is also timeless: The rule of law is a foundation of a free and prospering society.

The great liberal scholar F. A. Hayek noted that the U.S. Constitution was conceived “as a protection of the people against all arbitrary action, on the part of the legislative as well as the other branches of the government.” It was meant, in Hayek’s words, to be a “Constitution of Liberty.” IJ’s new rule of law pillar embodies that principle—and we’ll continue to advance it for decades to come.