In the Virginia Lawyer, Justice Arthur Kelsey (Va. Supreme Court): The Timeless Foundations of the Rule of Law (75 Virginia Lawyer, no. 3, at 32–37 (2026)). From the introduction:
The Rule of Law is an enduring yet elusive topic. Let me introduce my thoughts by quoting not from a famous jurist or legal scholar but rather from a great physicist. Albert Einstein spent his life studying the Rule of Law—not the laws of nations and of governments, but the Laws of Everything—laws that govern humans and angels as well as pebbles and planets. In 1955, a month before his death, while keenly aware of his failing health, Einstein famously wrote that “the distinction between past, present, and future is only a stubbornly persistent illusion.” Whether one accepts that proposition in physics, it is profoundly relevant to our understanding of history. History, like time itself, is not linear— it is cyclical. If that is true, and I believe it is, then the fate of nations depends less on what is new and more on what is timeless.
Taking that hypothesis as my guide, I suggest that whatever our nation’s fate is, it may well hinge on whether we understand—and are willing to live by—the timeless foundations of what we call the Rule of Law. But before we can talk about that, I should be clear about what I mean when I use this sometimes-sloganized phrase. The Rule of Law concept has existed, in one form or another, for thousands of years. It has been praised, romanticized, and invoked in countless ways. One of the most disciplined formulations comes from William Blackstone, the Oxford professor of English law whose work profoundly influenced the American Founding generation. To Blackstone, a rule is not a suggestion. It is a coercive command, general in application and binding in force. It cannot mean one thing for the favored and another for the disfavored. Equally important, a rule presupposes a ruler. Rules do not exist in the abstract. You cannot have a rule without a ruler any more than you can have a dance without a dancer or a clock without out a clockmaker. The law part of the Rule of Law equation, Blackstone reasoned, is simply the action or inaction being coerced.
I know that sounds harsh and reductionist. But think about it. You don’t need a law to forbid a man from doing something he doesn’t want to do. Nor do you need a law to make a man do something he wants to do. The Rule of Law is not a game-theory explanation of cooperative behavior. It is exactly the opposite. Law is meant to compel a man to stop doing something he wants to do and to start doing something he doesn’t want to do. How do you accomplish that? By force. Not simply persuasive force but coercive force—the kind exercised by police officers, sheriffs, prosecutors, juries, judges, and jailers.
This threshold definition of the Rule of Law is descriptive rather than normative and thus entirely amoral and neutral in character. It has normative character and can be imbued with moral qualities only when you first figure out who or what is the “Ruler” who enforces the coercive “Rule” and then determine what the “Law” declares to be the actions or inactions being coerced. That rhetorical formulation has been used since the earliest records of civilization.
And from later on:
The reason I led you through the 4,000-year storyline is because the Framers were trying to shape the future by studying the past. Their bookshelves were stocked with the works of Locke, Montesquieu, Blackstone, Grotius, and Cicero. They seemed wholly in sync with Machiavelli’s view on the cyclical nature of political power and his warning that every form of government contains the seeds of its own dissolution. The genius of the American experiment was not that the Framers were innocent as doves but that they were shrewd as serpents. They believed and understood the premise (later made famous by Lord Acton) that power corrupts, and absolute power corrupts absolutely. What was their plan? It was to make it difficult, if not impossible, to consolidate unchecked political power in any one person or organ of government. The organizing goal was not efficiency or consistency. It was instead to create a functioning government with surge protectors wired throughout the decision-making network to safeguard against dangerous concentrations of unchecked power.
It was shrewd but not without risk. James Madison openly admitted that deconcentrating power to this extent would necessarily lead to political factions and disunity. But he saw faction as the lesser of two evils. The only way to remove it, he reasoned, would be to “destroy[] the liberty which is essential to its existence” or to force upon every citizen “the same opinions, the same passions, and the same interests”—the latter being impossible and the former being “worse than the disease.” As he famously said, “Liberty is to faction, what air is to fire.” The only option in a free society, then, is to control the effects of faction.
We all know what happened next. The U.S. Constitution was ratified. It divided the federal government horizontally by separating national powers between the legislative, executive, and judicial branches, and it did the same vertically by separating the national government from state governments—giving each the last word on different categories of decisions. This power diffusion was necessary because the social compact that we call the Constitution was meant to invite disagreement and to provide a framework to peacefully and lawfully resolve it. …
Posted at 6:06 AM