Judicial Review and the Rule of Law

What is the Rule of Law?

Are the decrees of an unelected Ruler, such as a King or an Emperor or a Dictator part of the Rule of Law?

The Rule of Law, of course, “is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials.”

“Rule of law implies that every citizen is subject to the law, including law makers themselves. In this sense, it stands in contrast to an autocracy… dictatorship, or oligarchy where the rulers are held above the law.” [Wikipedia]  

It is the difference between Lex Rex (the law is king) and Rex Lex (the king is law). In other words, the Rule of Law affirms “the law’s supremacy…in contradistinction to the rule of man.”

[The Rule of Law “avers that no man is above the law and the law’s supremacy (lex  rex) in contradistinction to the rule of man (rex lex).” Li-ann Thio, Lex Rex or Rex Lex?, 20 UCLA Pac. Basin L.J. 1 (2002)]

In the context of federal courts and the Rule of Law, the idea is that judges should apply the law, but not make the law.

Thus, the idea of judicial review in Marbury is that federal courts have the power to apply the Written Constitution; but the doctrine of judicial review does not give federal courts the power to make law or to effectively amend the Constitution by fast and loose “interpretation.”