FOUNDING PRINCIPLES COURSE Rule of Law Module
Rule of Law Module Introduction
Rule of law means that government and citizens all abide by the same laws regardless of political
power. Those laws respect individual rights, are transparently enacted, justly applied, and stable.
Lesson One: What is the Rule of
Law?
North Carolina Clarifying Objectives

Overview
Rule of law means that government and
citizens all abide by the same laws regardless
of political power. Those laws respect individual
rights, are transparently enacted, justly applied,
and stable. This unit will explore how citizens’
commitment to the rule of law is crucial for
self-government. The process by which the
Constitution was framed and ratified reflects the
rule of law, and many of its protections ensure
that the United States is, as John Adams
explained, an empire of laws and not of men.
Key primary sources include the Constitution
and the Bill of Rights.

Recommended Time
100 minutes

Objectives
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Students will analyze the history of rule of
law.
Students will analyze the Founders’
influences in creating the American republic
with rule of law.
Students will define and apply the concept
rule of law.
Students will evaluate how rule of law
protects individual rights.
© The Bill of Rights Institute

CE.C&G.1.1: Explain how the tensions over
power and authority led America’s founding
fathers to develop a constitutional democracy
(e.g., mercantilism, salutary neglect, taxation
and representation, boycott and protest,
independence, American Revolution, Articles
of Confederation, Ben Franklin, George
Washington, John Adams, Sons of Liberty,
etc.)
CE.C&G.1.2:Explain how the Enlightenment
and other contributing theories impacted the
writing of the Declaration of Independence,
the US Constitution and the Bill of Rights
to help promote liberty, justice and equality
(e.g., natural rights, classical theories of
government, Magna Carta, Montesquieu,
Locke, English Bill of Rights, etc.).
CE.C&G.1.4: Analyze the principles and ideals
underlying American democracy in terms of
how they promote freedom (e.g., separation
of powers, rule of law, limited government,
democracy, consent of the governed, individual
rights –life, liberty, pursuit of happiness, selfgovernment, representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.3.8: Evaluate the rights of
individuals in terms of how well those rights
have been upheld by democratic government
in the United States.
FOUNDING PRINCIPLES COURSE 

CE.C&G.4.2: Explain how the development
of America’s national identity derived from
principles in the Declaration of Independence,
US Constitution and Bill of Rights (e.g.,
inalienable rights, consent of the governed,
popular sovereignty, religious and political
freedom, separation of powers, etc.).
AH1.H.1.2: Use Historical Comprehension to:

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



Analyze visual, literary and musical
sources.
Identify issues and problems in the past.
Consider multiple perspectives of various
peoples in the past.
Analyze cause-and-effect relationships
and multiple causation.
Evaluate competing historical narratives
and debates among historians.
Evaluate the influence of the past on
contemporary issues.
AH1.H.1.4: Use Historical Research to:




Differentiate between historical facts and
historical interpretations.
AH1.H.1.3: Use Historical Analysis and
Interpretation to:


Reconstruct the literal meaning of a
historical passage.
Obtain historical data from a variety of
sources.
Rule of Law Module

Lesson Two: Rule of Law in the
Constitution
Overview
In these activities, students will investigate the
principle of rule of law by analyzing excerpts from
Madison’s Federalist No. 62, and by studying
the amendments to the Constitution that provide
for due process in criminal matters. They will
then review landmark Supreme Court cases to
understand how rule of law has been carried out in
constitutional controversies in U.S. history. Finally,
they will research current rule of law issues and
complete a journal entry on their findings.
Recommended Time
120 minutes
Objectives


Support interpretations with historical
evidence.
Construct analytical essays using
historical evidence to support arguments.
AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
elections, innovations, leadership,
movements, Supreme Court decisions, etc.).
© The Bill of Rights Institute
AH1.H.4.1: Analyze the political issues and
conflicts that impacted the United States
through Reconstruction and the compromises
that resulted (e.g., American Revolution,
Constitutional Convention, Bill of Rights,
development of political parties, nullification,
slavery, states’ rights, Civil War).


Students will analyze the importance of the
rule of law in a constitutional republic.
Students will evaluate the reasons why
criminal and civil procedure protections came
to be included in the Bill of Rights.
Students will identify ways in which these
protections serve to ensure liberty. Students
will analyze and articulate specific protections
found in the Fourth, Fifth, Sixth, Seventh, and
Eighth Amendments.
Students will evaluate Supreme Court rulings
concerning the Eighth Amendment’s Cruel
and Unusual Punishment Clause.
FOUNDING PRINCIPLES COURSE Rule of Law Module
North Carolina Standards and
Objectives
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
CE.C&G.1.1: Explain how the tensions
over power and authority led America’s
founding fathers to develop a constitutional
democracy (e.g., mercantilism, salutary
neglect, taxation and representation, boycott
and protest, independence, American
Revolution, Articles of Confederation, Ben
Franklin, George Washington, John Adams,
Sons of Liberty, etc.)
CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights –life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.1.5: Evaluate the fundamental
principles of American politics in terms
of the extent to which they have been
used effectively to maintain constitutional
democracy in the United States (e.g., rule
of law, limited government, democracy,
consent of the governed, etc.).
CE.C&G.2.3: Evaluate the U.S. Constitution
as a “living Constitution” in terms of
how the words in the Constitution and
Bill of Rights have been interpreted and
applied throughout their existence (e.g.,
precedents, rule of law, stare decisis, judicial
review, supremacy, equal protections,
“establishment clause”, symbolic speech,
due process, right to privacy, etc.).
CE.C&G.3.1: Analyze how the rule of law
establishes limits on both the governed and
© The Bill of Rights Institute
those who govern while holding true to the
ideal of equal protection under the law (e.g.,
the Fourteenth Amendments, Americans with
Disabilities Act, equal opportunity legislation).




CE.C&G.3.8: Evaluate the rights of
individuals in terms of how well those
rights have been upheld by democratic
government in the United States.
CE.C&G.4.2: Explain how the development
of America’s national identity derived
from principles in the Declaration of
Independence, US Constitution and Bill of
Rights (e.g., inalienable rights, consent of the
governed, popular sovereignty, religious and
political freedom, separation of powers, etc.).
AH1.H.1.2: Use Historical Comprehension to:
 Reconstruct the literal meaning of a
historical passage.
 Differentiate between historical facts and
historical interpretations.
AH1.H.1.3: Use Historical Analysis and
Interpretation to:




Consider multiple perspectives of various
peoples in the past.
Analyze cause-and-effect relationships
and multiple causation.
AH1.H.1.4: Use Historical Research to:




Identify issues and problems in the past.
Formulate historical questions.
Support interpretations with historical
evidence.
Construct analytical essays using
historical evidence to support arguments.
AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
FOUNDING PRINCIPLES COURSE Rule of Law Module
elections, innovations, leadership,
movements, Supreme Court decisions, etc.).

AH1.H.4.1: Analyze the political issues
and conflicts that impacted the United
States through Reconstruction and the
compromises that resulted (e.g., American
Revolution, Constitutional Convention, Bill
of Rights, development of political parties,
nullification, slavery, states’ rights, Civil War).
Recommended Time
60 minutes
Assignment
Compose an essay in your journal
addressing the following criteria:



Assessment

Overview
Students will be asked to define rule of law,
historic examples of rule of law, examples of
rule of law in the Constitution and Bill of Rights,
and a reflection on how rule of law promotes
liberty in an essay.

Define rule of law.
Give historical examples of the
importance of rule of law.
Give examples and explain how rule of
law is applied in the Constitution and the
Bill of Rights.
Explain how rule of law is essential to
promoting individual rights and liberties.
Rubric
Category
Define rule of law.
Give historical examples
of the importance of rule of
law.
Give examples and explain
how rule of law is applied in
the Constitution and the Bill
of Rights.
Explain how rule of law
is essential to promoting
individual rights and
liberties.
1
2
3
4
No definition or
incorrect definition
Definition is given,
but is difficult to
understand.
Correct definition.
Correct, specific
definition.
No examples from
history are given or
explained.
One example from
history are given
and explained.
Two examples from
history are given
and explained.
Three or more
examples from
history are given
and explained.
No examples from
the Constitution or
Bill of Rights are
given or explained.
One example from
the Constitution
or Bill of Rights
are given and
explained.
Two examples from
the Constitution
or Bill of Rights
are given and
explained.
Three or more
examples from the
Constitution or Bill
of Rights are given
and explained.
No explanation
of how rule of law
promotes rights and
liberties.
A weak explanation
of how rule of law
promotes rights and
liberties is given.
Explanation of how
rule of law promotes
rights and liberties
is given, but more
detail is needed.
Clear and specific
explanation of how
rule of law promotes
rights and liberties.
These resources were created by the Bill of Rights Institute to help North Carolina high school teachers of civics and American History
meet the requirements of the Founding Principles Act.
© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Rule of Law Module
Rule of Law Module: What is the Rule of Law?
Lesson
Overview
Rule of law means that government and citizens all abide by the same laws regardless of political
power. Those laws respect individual rights, are transparently enacted, are justly applied, and
are stable. This unit will explore how citizens’ commitment to the rule of law is crucial for selfgovernment. The process by which the Constitution was framed and ratified reflects the rule of law,
and many of its protections ensure that the United States is, as John Adams explained, an empire
of laws and not of men. Key primary sources include the Constitution and the Bill of Rights.
Recommended Time
Revolution, Articles of Confederation, Ben
Franklin, George Washington, John Adams,
Sons of Liberty, etc.)
100 minutes
Objectives

Students will:


Understand the definition and application of
the concept rule of law.
Understand how rule of law protects
individual rights.
Materials
Handout A: Explaining the Founding Essay

Handout B: Rule of Law, or Law of Rulers?
Handout C: Viewing Guide for Constitutional
Principle: Rule of Law
Handout D: Madison’s Notes of Debates in the
Federal Convention of 1787
Handout E: Sample Meme
North Carolina Clarifying Objectives

CE.C&G.1.1: Explain how the tensions
over power and authority led America’s
founding fathers to develop a constitutional
democracy (e.g., mercantilism, salutary
neglect, taxation and representation, boycott
and protest, independence, American
© The Bill of Rights Institute


CE.C&G.1.2:Explain how the Enlightenment
and other contributing theories impacted the
writing of the Declaration of Independence,
the US Constitution and the Bill of Rights
to help promote liberty, justice and equality
(e.g., natural rights, classical theories of
government, Magna Carta, Montesquieu,
Locke, English Bill of Rights, etc.).
CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights –life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.3.8: Evaluate the rights of
individuals in terms of how well those
rights have been upheld by democratic
government in the United States.
CE.C&G.4.2: Explain how the development
of America’s national identity derived
FOUNDING PRINCIPLES COURSE from principles in the Declaration of
Independence, US Constitution and Bill of
Rights (e.g., inalienable rights, consent of the
governed, popular sovereignty, religious and
political freedom, separation of powers, etc.).

AH1.H.1.2: Use Historical Comprehension
to:












AH1.H.4.1: Analyze the political issues
and conflicts that impacted the United
States through Reconstruction and the
compromises that resulted (e.g., American
Revolution, Constitutional Convention, Bill
of Rights, development of political parties,
nullification, slavery, states’ rights, Civil War).
Materials
Differentiate between historical facts and
historical interpretations.
Handout B: Rule of Law, or Law of Rulers?
Analyze visual, literary and musical
sources.
Handout A: Explaining the Founding Essay
Handout C: Viewing Guide for Constitutional
Principle: Rule of Law
Handout D: Excerpts from Madison’s Notes of
Debates in the Federal Convention of 1787
Identify issues and problems in the past.
Handout E: Sample Meme
Consider multiple perspectives of various
peoples in the past.
Lesson Plan
Analyze cause-and-effect relationships
and multiple causation.
Background/Homework [30 minutes]
Evaluate competing historical narratives
and debates among historians.
Evaluate the influence of the past on
contemporary issues.
AH1.H.1.4: Use Historical Research to:


Reconstruct the literal meaning of a
historical passage.
AH1.H.1.3: Use Historical Analysis and
Interpretation to:

Rule of Law Module
Obtain historical data from a variety of
sources.
Support interpretations with historical
evidence.
Construct analytical essays using
historical evidence to support arguments.
AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
elections, innovations, leadership,
movements, Supreme Court decisions, etc.).
© The Bill of Rights Institute
A. Have students read Handout A:
Explaining the Founding Essay and
answer the questions that follow the essay
in their journals.
B. Discuss the history of rule of law as a class
to give students more background on the
term.
Warm-up [15 minutes]
A. Before class, cut out scenario strips on
Handout B: Rule of Law, or Law of
Rulers?
B. Give eight students a slip and ask them to
be ready to read it aloud when you call on
them.
C. Have students take out a sheet of paper
and number it from 1-8. Then call on
students in turn to read their scenarios
FOUNDING PRINCIPLES COURSE aloud. After each scenario, have students
tally on their paper whether the situation
described reflects the principle of rule of
law.
Activity I [20 minutes]
A. Have students watch the short video
“Constitutional Principle: The Rule of Law.”
The video can be accessed here: http://
billofrightsinstitute.org/resources/studentresources/constitutional-principles-videos/.
Before, during, and after watching, they
should complete Handout C: Viewing
Guide for Constitutional Principle: Rule
of Law.
Activity II [20 minutes]
A. Have students read Handout D: Excerpts
from Madison’s Notes of Debates in the
Federal Convention of 1787.
B. Hold a class discussion about the ways that
the delegates discussed rule of law in the
Constitutional Convention. Ask students to
consider:
a. Which of the items discussed were
added to the final Constitution? Why?
b. Which were not? Why?
© The Bill of Rights Institute
Rule of Law Module
Wrap-up: Journaling [15 minutes]
A. Student should write a journal entry where
they explain what the nation and world
might be like without rule of law.
Assessment
A. Have students use national and
international news stories to design a meme
such as “Rule of Law FTW” or “Rule of Law
#Fail”. They should select their own images
from history, write their own captions, and
share them in class. See Handout E for a
sample meme and directions.
Handout A: Explaining the Founding Essay
In 1760, what was to become of the United
States of America which consisted of a small
group of colonies strung out along the eastern
seaboard of North America. Although they
had experienced significant economic and
demographic growth in the eighteenth century
and had just helped Britain defeat France
and take control of most of North America,
they remained politically and economically
dependent upon London. Yet, in the next
twenty-five years, they would challenge
the political control of Britain, declare
independence, wage a bloody war, and lay
the foundations for a trans-continental, federal
republican state. In these crucial years, the
colonies would be led by a new generation
of politicians, men who combined practical
political skills with a firm grasp of political
ideas. In order to better understand these
extraordinary events, the Founders who made
them possible, and the new Constitution that
they created, it is necessary first to understand
the political ideas that influenced colonial
Americans in the crucial years before the
Revolution.
The Common Law and the Rightsof
Englishmen
The political theory of the American colonists
in the seventeenth and eighteenth centuries
was deeply influenced by English common
law and its idea of rights. In a guide for
religious dissenters written in the late
seventeenth century, William Penn, the
founder of Pennsylvania, offered one the best
contemporary summaries of this common-law
© The Bill of Rights Institute
view of rights. According to Penn, all English
men had three central rights or privileges by
common law: those of life, liberty, and property.
For Penn, these English rights meant that every
subject was “to be freed in Person & Estate
from Arbitrary Violence and Oppression.” In the
widely used language of the day, these rights
of “Liberty and Property” were an Englishman’s
“Birthright.”
In Penn’s view, the English system of
government preserved liberty and limited
arbitrary power by allowing the subjects to
express their consent to the laws that bound
them through two institutions: Parliaments and
Juries. ”By the first,” Penn argued, “the subject
has a share by his chosen Representatives
in the Legislative (or law-making) Power.”
Penn felt that the granting of consent through
Parliament was important because it ensured
that “no new Laws bind the People of England,
but such as are by common consent agreed
on in that great Council.” In Penn’s view, juries
were an equally important means of limiting
arbitrary power. By serving onjuries, Penn
argued, every freeman “has a share in the
Executive part of the Law, no Causes being
tried, nor any man adjudged to loose [sic]
Life, member or Estate, but upon the Verdict
of his Peers or Equals.” For Penn, “These
two grand Pillars of English Liberty” were
“the Fundamental vital Priviledges [sic]” of
Englishmen.
The other aspect of their government that
seventeenth-century Englishmen celebrated
was a system that was ruled by laws and
not by men. As Penn rather colorfully put it:
“In France, and other Nations, the meer [sic]
Will of the Prince is Law, his Word takes off
any mans Head, imposeth Taxes, or seizes
a mans Estate, when, how and as often as
he lists; and if one be accussed [sic], or but
so much as suspected of any Crime, he may
either presently Execute him, or banish, or
Imprison him at pleasure.” By contrast, “In
England,” Penn argued, “the Law is both the
measure and the bound of every Subject’s
Duty and Allegiance, each man having a
fixed Fundamental-Right born with him, as
to Freedom of his Person and Property in
his Estate, which he cannot be deprived of,
but either by his Consent, or some Crime, for
which the Law has impos’d such a penalty or
forfeiture.”
threatened their subjects’ rights. In response,
many Englishmen drew on the common law
to argue that all political power, even that of
a monarch, should be limited by law. Colonial
Americans in the eighteenth century viewed
the defeat of the Stuarts and the subsequent
triumph of Parliament (which was seen as
the representative of subjects’ rights) in the
Glorious Revolution of 1688 as a key moment
in English history. They believed that it had
enshrined in England’s unwritten constitution
the rule of law and the sanctity of subjects’
rights. This awareness of English history
instilled in the Founders a strong fear of
arbitrary power and a consequent desire to
create a constitutional form of government
that limited the possibility of rulers violating the
fundamental liberties of the people.
This common law view of politics understood
political power as fundamentally limited by
Englishmen’s rights and privileges. As a result,
it held that English kings were bound to rule
according to known laws and by respecting
the inherent rights of their subjects. It also
enshrined the concept of consent as the major
means to the end of protecting these rights.
According to Penn and his contemporaries,
this system of government—protecting as it did
the “unparallel’d Priviledge [sic] of liberty and
Property”—had made the English nation “more
free and happy than any other People in the
World.”
The seriousness with which the colonists
took these ideas can be seen in their strong
opposition to Parliament’s attempt to tax or
legislate for them without their consent in the
1760s and 1770s. After the Revolution, when
the colonists formed their own governments,
they wrote constitutions that included many
of the legal guarantees that Englishmen had
fought for in the seventeenth century as a
means of limiting governmental power. As
a consequence, both the state and federal
constitutions typically contained bills of rights
that enshrined core English legal rights as
fundamental law.
The Founders imbibed this view of English
rights through the legal training that was
common for elites in the eighteenth-century
Anglo-American world. This legal education
also made them aware of the history of
England in the seventeenth century, a
time when the Stuart kings had repeatedly
Natural Rights
© The Bill of Rights Institute
The seventeenth century witnessed a revolution
in European political thought, one that was
to prove profoundly influential on the political
ideas of the American Founders. Beginning
with the Dutch writer Hugo Grotius in the early
1600s, several important European thinkers
began to construct a new understanding of
political theory that argued that all men by
nature had equal rights, and that governments
were formed for the sole purpose of protecting
these natural rights.
The leading proponent of this theory in the
English-speaking world was John Locke (1632–
1704). Deeply involved in the opposition to the
Stuart kings in the 1670s and 1680s, Locke
wrote a book on political theory to justify armed
resistance to Charles II and his brother James.
“To understand political power right,” Locke
wrote, “and derive it from its original, we must
consider, what state all men are naturally in,
and that is, a state of perfect freedom to order
their actions, and dispose of their possessions
and persons, as they think fit, within the bounds
of the law of nature, without asking leave, or
depending upon the will of any other man.” For
Locke, the state of nature was “a state also of
equality, wherein all the power and jurisdiction is
reciprocal, no one having more than another.”
Although this pre-governmental state of
nature was a state of perfect freedom, Locke
contended that it also lacked an impartial
judge or umpire to regulate disputes among
men. As a result, men in this state of nature
gathered together and consented to create a
government in order that their natural rights
would be better secured. Locke further argued
that, because it was the people who had
created the government, the people had a right
to resist its authority if it violated their rights.
They could then join together and exercise
their collective or popular sovereignty to create
a new government of their own devising.
This revolutionary political theory meant that
ultimate political authority belonged to the
people and not to the king.
© The Bill of Rights Institute
This idea of natural rights became a central
component of political theory in the American
colonies in the eighteenth century, appearing
in numerous political pamphlets, newspapers,
and sermons. Its emphasis on individual
freedom and government by consent combined
powerfully with the older idea of common
law rights to shape the political theory of the
Founders. When faced with the claims of the
British Parliament in the 1760s and 1770s
to legislate for them without their consent,
American patriots invoked both the common
law and Lockean natural rights theory to argue
that they had a right to resist Britain.
Thomas Jefferson offers the best example of
the impact that these political ideas had on
the Founding. As he so eloquently argued in
the Declaration of Independence: “We hold
these truths to be self-evident, that all men
are created equal, that they are endowed by
their Creator with certain unalienable Rights,
that among these are Life, Liberty and the
pursuit of Happiness. That to secure these
rights, Governments are instituted among Men,
deriving their just powers from the consent
of the governed, That whenever any Form of
Government becomes destructive of these
ends, it is the Right of the People to alter or
abolish it, and to institute new Government,
laying its foundations on such principles and
organizing its powers in such form, as to them
shall seem most likely to effect their Safety and
Happiness.”
This idea of natural rights also influenced the
course of political events in the crucial years
after 1776. All the state governments put this
new political theory into practice, basing their
authority on the people, and establishing
written constitutions that protected natural
rights. As George Mason, the principal author
of the influential Virginia Bill of Rights (1776),
stated in the document’s first section: “All men
are by nature equally free and independent,
and have certain inherent rights, of which,
when they enter into a state of society, they
cannot, by any compact, deprive or divest
their posterity; namely, the enjoyment of
life and liberty, with the means of acquiring
and possessing property, and pursuing and
obtaining happiness and safety.” The radical
implications of this insistence on equal natural
rights would slowly become apparent in postrevolutionary American society as previously
downtrodden groups began to invoke these
ideals to challenge slavery, argue for a wider
franchise, end female legal inequality, and fully
separate church and state.
In 1780, under the influence of John Adams,
Massachusetts created a mechanism by which
the people themselves could exercise their
sovereign power to constitute governments:
a special convention convened solely for the
purpose of writing a constitution, followed
by a process of ratification. This American
innovation allowed the ideas of philosophers
like Locke to be put into practice. In particular,
it made the people’s natural rights secure by
enshrining them in a constitution which was
not changeable by ordinary legislation. This
method was to influence the authors of the new
federal Constitution in 1787.
Colonial Self-Government
The political thinking of the Founders in the
late eighteenth century was also deeply
influenced by the long experience of colonial
self-government. Since their founding in the
early seventeenth century, most of the English
colonies in the Americas (unlike the French and
© The Bill of Rights Institute
Spanish colonies) had governed themselves
to a large extent in local assemblies that
were modeled on the English Parliament. In
these colonial assemblies they exercised their
English common law right to consent to all laws
that bound them.
The existence of these strong local
governments in each colony also explains in
part the speed with which the Founders were
able to create viable independent republican
governments in the years after 1776. This
long-standing practice of self-government also
helped to create an indigenous political class
in the American colonies with the requisite
experience for the difficult task of nation
building.
In addition to the various charters and royal
instructions that governed the English colonies,
Americans also wrote their own Founding
documents. These settler covenants were
an early type of written constitution and they
provided an important model for the Founders
in the late eighteenth century as they sought
to craft a new constitutional system based on
popular consent.
Classical Republicanism
Not all the intellectual influences on the
Founders originated in the seventeenth century.
Because many of the Founders received a
classical education in colonial colleges in
the eighteenth century, they were heavily
influenced by the writings of the great political
thinkers and historians of ancient Greece and
Rome.
Antiquity shaped the Founders’ political
thought in several important ways. First, it
introduced them to the idea of republicanism,
or government by the people. Ancient political
thinkers from Aristotle to Cicero had praised
republican self-government as the best
political system. This classical political thought
was important for the Founders as it gave
them grounds to dissent from the heavily
monarchical political culture of eighteenthcentury England, where even the common law
jurists who defended subjects’ rights against
royal power believed strongly in monarchy. By
reading the classics, the American Founders
were introduced to an alternate political vision,
one that legitimized republicanism.
The second legacy of this classical idea of
republicanism was the emphasis that it put
on the moral foundations of liberty. Though
ancient writers believed that a republic was the
best form of government, they were intensely
aware of its fragility. In particular, they argued
that because the people governed themselves,
republics required for their very survival a high
degree of civic virtue in their citizenry. Citizens
had to be able to put the good of the whole
(the res publica) ahead of their own private
interests. If they failed to do this, there public
would fall prey to men of power and ambition,
and liberty would ultimately be lost.
As a result of this need for an exceptionally
virtuous citizenry, ancient writers also taught
that republics had to be small. Only in a small
and relatively homogeneous society, they
argued, would the necessary degree of civic
virtue be forth coming. In part, it was this
classical teaching about the weakness of large
republics that animated the contentious debate
over the proposed federal Constitution in the
1780s.
© The Bill of Rights Institute
In addition to their reading of ancient authors,
the Founders also encountered republican
ideas in the political theory of a group of
eighteenth century English writers called the
“radical Whigs.” These writers kept alive the
republican legacy of the English Civil War at
a time when most Englishmen believed that
their constitutional monarchy was the best
form of government in the world. Crucially for
the Founding, these radical Whigs combined
classical republican thought with the newer
Locke an ideas of natural rights and popular
sovereignty. They thus became an important
conduit for a modern type of republicanism
to enter American political thought, one that
combined the ancient concern with a virtuous
citizenry and the modern insistence on the
importance of individual rights.
These radical Whigs also provided the
Founders with an important critique of the
eighteenth-century British constitution. Instead
of seeing it as the best form of government
possible, the radical Whigs argued that it was
both corrupt and tyrannical. In order to reform
it, they called for a written constitution and
a formal separation of the executive branch
from the legislature. This classically inspired
radical Whig constitutionalism was an important
influence on the development of American
republicanism in the late eighteenth century.
Drawing on all these intellectual traditions,
the Founders were able to create a new kind
of republicanism in America based on equal
rights, consent, popular sovereignty, and rule of
law.
Craig Yirush, Ph.D., University of California,
Los Angeles
Critical Thinking Questions
1. Rule of law means that government and citizens all abide by the same laws regardless of
political power. Those laws respect individual rights, are transparently enacted, justly applied,
and are stable. Based on this definition and the information in the Explaining the Founding
essay, why is rule of law an important part of government?
2. How were the American Founders influenced by common law and the rights of Englishmen in
developing the Declaration of Independence and the Constitution?
3. Explain how John Locke’s theories regarding natural rights were incorporated into the American
governmental structures. How does rule of law protect rights?
4. How were the Founders were influenced by ancient republican systems?
© The Bill of Rights Institute
Handout B: Rule of Law, or Law of Rulers?
1. The people elect representatives to make and carry out laws. Those laws respect individual
rights, apply to everyone in the same way, and cannot be changed suddenly
-----------------------------------------------------------------------------------------------------------------------------2. Many people come to believe that people over the age of 18 should be able to vote. They
work to persuade others. Eventually, more and more people come to agree. The peoples’
representatives in Congress draft an amendment to the Constitution. The people of each state
vote on whether to approve the amendment. Once three-fourths of the state ratify (or approve),
the amendment becomes part of the Constitution.
-----------------------------------------------------------------------------------------------------------------------------3. A young mother is suspected of killing her daughter. The evidence against her is thin, but almost
everyone in the community is convinced she is guilty. The judge decides to move her trial to a
location where her case has gotten less media attention, so that impartial jurors can be found.
-----------------------------------------------------------------------------------------------------------------------------4. The president is under scrutiny (and under subpoena) for conspiring to cover up illegal
activities. Asked to explain, he says, “When the President does it that means it’s not illegal.”
-----------------------------------------------------------------------------------------------------------------------------5. A city government lowers the speed limit on a busy street from 50 to 45. After the change takes
effect, police use footage from traffic cameras to issue tickets to people who drove 49 miles per
hour before the speed limit was lowered.
-----------------------------------------------------------------------------------------------------------------------------6. A state government, worried about rising crime, imposes an 8 p.m. curfew. Some people
complain about the restriction on their liberty, but state officials point out that the curfew gives
everyone enough time to get home in the evenings, is probably temporary, and applies equally
to everyone.
-----------------------------------------------------------------------------------------------------------------------------7. Congress passes a law that affects everyone in the nation, but the members of Congress
themselves do not have to abide by it.
-----------------------------------------------------------------------------------------------------------------------------8. Jurors in a Northern state in 1855 hear the case of a man charged with helping an escaped
slave avoid capture. They refuse to convict him, despite overwhelming evidence that he was
guilty of violating the Fugitive Slave Act.
------------------------------------------------------------------------------------------------------------------------------
© The Bill of Rights Institute
Handout C: Viewing Guide for Constitutional
Principle: Rule of Law
Directions: Before watching the video, answer the pre-viewing questions. Fill in the blanks on
Bill of Rights protections while you watch. Finally, answer the questions that follow after you have
watched the video on a separate sheet of paper.
Before you watch:
1. What do you think of when you hear the term “rule of law?” Write down some key words and
phrases.
2. What ways can you think of that the Constitution provides for the rule of law in the U.S.?
While you watch:
1. The Constitution forbids bills of _________ (laws passed to single out one person).
2. It also bans _______ laws, which means the government cannot suddenly declare an action
illegal and then punish people who did it in the past.
3. All criminal trials will be tried by a ______.
4. The police cannot search you or your property without first getting a ____________ from a
judge by demonstrating __________ cause.
5. People accused of crimes have many rights to due process—the right to know what they are
being charged with, to consult with a ________, to confront their ________, call _______ in
their own defense, and have their trial take place in a __________ manner in the location
where the alleged crime occurred.
6. A government cannot try a defendant over and over until it gets a guilty verdict. This is known
as double ___________.
7. Excessive ________ and cruel and unusual ________ are forbidden.
8. The most serious crimes require a _______________ to bring charges, and the crime of
treason can only be proven by the testimony of ____ witnesses to the same overt act, or on
_______ in open court.
After you watch, answer the following questions on your own paper:
1. What does the principle of rule of law mean?
2. Describe some ways that the processes of drafting and ratifying the Constitution demonstrated
the rule of law.
© The Bill of Rights Institute
3. A commitment to the rule of law means a belief in the duly established systems and processes,
even if outcomes aren’t what some expect. Do you think this is a challenging concept for many
citizens? Why or why not?
4. Professor Zywicki defines rule of law as “a law or set of laws that are outside and above the
government that constrain what the government can do to you.” How would you put this in your
own words? Do you believe this is a useful definition? Explain.
5. Why does Professor Zywicki state that ordinary people are the ones who benefit most when
government follows the rule of law?
6. Though warrants are required for the police to perform searches, some exceptions to this
requirement exist such as searches that take place after a lawful arrest, when items are in plain
view, or when police are in “hot pursuit” of a suspect. Learn more about these exceptions and
evaluate whether you believe they are “reasonable.”
7. The following questions are posed at the end of the video. Choose the one you find
most interesting and write a 2-3 paragraph response, using resources available at
www.BillofRightsInstitute.org to support your answer.
a. How transparent is our system of lawmaking? Should the U.S. enforce only those laws
enacted by the people through their representatives? Does the U.S. have to enforce UN
resolutions? International laws?
b. Does the executive branch have to enforce all laws passed by Congress, even if the
president thinks they are unconstitutional?
i. Can states nullify federal laws they conclude are unconstitutional?
ii. What does it mean for citizens to be committed to the rule of law?
iii. Does commitment to the rule of law mean obedience to all laws, even unjust ones?
© The Bill of Rights Institute
Handout D: Madison’s Notes on the Federal
Convention of 1787
Directions: Read the follow excerpts from James Madison’s notes taken during the Constitutional
Convention. Think about how the delegates discussed rule of law in their debates, which of the
items they discussed were added to the Constitution, and which of the items they discussed were
not added to the Constitution. Be prepared to discuss your answers. Note: Spellings, punctuation,
and grammar are Madison’s.
Friday, August 17
IN CONVENTION
Art VII. Sect. 1. resumed. on the clause “to
appoint Treasurer by ballot.”
Mr. GHORUM moved to insert “joint” before
ballot, as more convenient as well as
reasonable, than to require the separate
concurrence of the Senate.
Mr. PINKNEY 2ds. the motion. Mr.
SHERMAN opposed it as favoring the larger
States.
Mr. READ moved to strike out the clause,
leaving the appointment of the Treasurer as of
other officers to the Executive. The Legislature
was an improper body for appointments. Those
of the State legislatures were a proof of it. The
Executive being responsible would make a
good choice.
Mr. MERCER 2ds. the motion of Mr. Read.
On the motion for inserting the word “joint”
before ballot N. H. ay. Mas. ay. Ct. no. N. J. no.
Pa. ay. Md. no. Va. ay. N. C. ay. S. C. ay. Geo.
ay.
Col. MASON in opposition to Mr. Reads motion
© The Bill of Rights Institute
desired it might be considered to whom the
money would belong; if to the people, the
legislature representing the people ought to
appoint the keepers of it.
On striking out the clause as amended by
inserting “Joint” N. H. no. Mas. no. Ct. no. Pa.
ay. Del. ay. Md. ay. Va. no. N. C. no. S. C. ay.
Geo. no.
“To constitute inferior tribunals” agreed to nem.
con. “To make rules as to captures on land & water”do. d “To declare the law and punishment of
piracies and felonies &c” &c considered.
Mr. MADISON moved to strike out “and
punishment” &c. Mr. MASON doubts the safety of it, considering
the strict rule of construction in criminal cases.
He doubted also the propriety of taking the
power in all these cases wholly from the States.
Mr. GOVERNR. MORRIS thought it would be
necessary to extend the authority farther, so as
to provide for the punishment of counterfeiting
in general. Bills of exchange for example might
be forged in one State and carried into another:
It was suggested by some other member
that foreign paper might be counterfeited by
Citizens; and that it might be politic to provide
by national authority for the punishment of it.
Mr. RANDOLPH did not conceive that
expunging “the punishment” would be a
constructive exclusion of the power. He
doubted only the efficacy of the word “declare.”
Mr. WILSON was in favor of the motion.
Strictness was not necessary in giving authority
to enact penal laws; though necessary in
enacting & expounding them.
On motion for striking out “and punishment” as
moved by Mr. Madison
N. H. no. Mas. ay. Ct. no. Pa. ay. Del. ay. Md.
no. Va. ay. N. C. ay. S. C. ay. Geo. ay.
Mr. Govr. MORRIS moved to strike out “declare
the law” and insert “punish” before “piracies.”
and on the question N. H. ay. Mas. ay. Ct. no.
Pa. ay. Del. ay. Md. ay. Va. no. N. C. no. S. C.
ay. Geo. ay.
Mr. MADISON, and Mr. RANDOLPH moved to
insert, “define &,” before “punish.”
Mr. WILSON, thought “felonies” sufficiently
defined by common law.
Mr. DICKENSON concurred with Mr. Wilson.
Mr. MERCER was in favor of the amendment.
Mr. MADISON. felony at common law is vague.
It is also defective. One defect is supplied by
Stat: of Anne as to running away with vessels
which at common law was a breach of trust
only. Besides no foreign law should be a
standard farther than is expressly adopted-If
the laws of the States were to prevail on this
subject, the citizens of different States would
© The Bill of Rights Institute
be subject to different punishments for the
same offence at sea. There would be neither
uniformity nor stability in the law-The proper
remedy for all these difficulties was to vest the
power proposed by the term “define” in the
Natl. legislature.
Mr. Govr. MORRIS would prefer designate to
define, the latter being as he he conceived,
limited to the preexisting meaning.- It was said
by others to be applicable to the creating of
offences also, and therefore suited the case
both of felonies & of piracies. The motion of Mr.
M. & Mr. R was agreed to.
Mr. ELSEWORTH enlarged the motion so as to
read “to define and punish piracies and felonies
committed on the high seas, counterfeiting the
securities and current coin of the U. States, and
offences agst. the law of Nations” which was
agreed to nem. con.
“To subdue a rebellion in any State, on the
application of its legislature.”
Mr. PINKNEY moved to strike out “on the
application of its legislature”
Mr. Govr. MORRIS 2ds.
Mr. L. MARTIN opposed it as giving a
dangerous & unnecessary power. The consent
of the State ought to precede the introduction of
any extraneous force whatever.
Mr. MERCER supported the opposition of Mr.
Martin.
Mr. ELSEWORTH proposed to add after
“legislature” “or Executive.”
Mr. Govr. MORRIS. The Executive may
possibly be at the head of the Rebellion. The
Genl. Govt. should enforce obedience in all
cases where it may be necessary.
Mr. ELSEWORTH. In many cases The Genl.
Govt. ought not to be able to interpose, unless
called upon. He was willing to vary his motion
so as to read, “or without it when the legislature
cannot meet.”
Mr. GERRY was agst. letting loose the
myrmidons of the U. States on a State without
its own consent. The States will be the best
Judges in such cases. More blood would have
been spilt in Massts. in the late insurrection, if
the Genl. authority had intermeddled.
Mr. LANGDON was for striking out as moved
by Mr. Pinkney. The apprehension of the
national force, will have a salutary effect in
preventing insurrections.
Mr. RANDOLPH. If the Natl. Legislature is
to judge whether the State legislature can or
cannot meet, that amendment would make the
clause as objectionable as the motion of Mr.
Pinkney.
Mr. Govr. MORRIS. We are acting a very
strange part. We first form a strong man to
protect us, and at the same time wish to tie his
hands behind him, The legislature may surely
be trusted with such a power to preserve the
public tranquility.
On the motion to add “or without it [application]
when the legislature cannot meet” N. H. ay. Mas. no. Ct. ay. Pa. divd. Del. no. Md.
no. Va. ay. N. C. divd. S. C. ay. Geo. ay.19 So
agreed to
Mr. MADISON and Mr. DICKENSON moved to
insert as explanatory, after “State”- “against the
© The Bill of Rights Institute
Government thereof” There might be a rebellion
agst. the U. States-which was Agreed to nem.
con.
On the clause as amended N. H. ay. Mas abst.
Ct. ay. Pen. abst. Del. no. Md. no. Va. ay. N. C.
no. S. C. no. Georg. ay-so it was lost.
“To make war”
Mr. PINKNEY opposed the vesting this power in
the Legislature. Its proceedings were too slow.
It wd. meet but once a year. The Hs. of Reps.
would be too numerous for such deliberations.
The Senate would be the best depositary, being
more acquainted with foreign affairs, and most
capable of proper resolutions. If the States are
equally represented in Senate, so as to give
no advantage to large States, the power will
notwithstanding be safe, as the small have their
all at stake in such cases as well as the large
States. It would be singular for one authority to
make war, and another peace.
Mr. BUTLER. The objections agst. the
Legislature lie in great degree agst. the Senate.
He was for vesting the power in the President,
who will have all the requisite qualities, and will
not make war but when the Nation will support
it. Mr. MADISON and Mr. GERRY moved to
insert “declare,” striking out “make” war; leaving
to the Executive the power to repel sudden
attacks.
Mr. SHARMAN thought it stood very well. The
Executive shd. be able to repel and not to
commence war. “Make” better than “declare”
the latter narrowing the power too much.
Mr. GERRY never expected to hear in a
republic a motion to empower the Executive
alone to declare war.
Mr. ELSWORTH. there is a material difference
between the cases of making war and making
peace. It shd. be more easy to get out of war,
than into it. War also is a simple and overt
declaration. peace attended with intricate &
secret negociations.
Mr. PINKNEY’S motion to strike out whole
clause, disagd. to without call of States.
Mr. MASON was agst. giving the power of war
to the Executive, because not safely to be
trusted with it; or to the Senate, because not
so constructed as to be entitled to it. He was
for clogging rather than facilitating war; but for
facilitating peace. He preferred “declare” to
“make.”
Mr. GERRY 2ds. him. 8 Senators may possibly
exercise the power if vested in that body,
and 14 if all should be present; and may
consequently give up part of the U. States. The
Senate are more liable to be corrupted by an
Enemy than the whole Legislature.
On the motion to insert declare-in place of
make, it was agreed to. N. H. no. Mas. abst.
Cont. no. Pa. ay. Del. ay. Md.
ay. Va. ay. N. C. ay. S. C. ay. Geo. ay.
© The Bill of Rights Institute
Mr. BUTLER moved to give the
Legislature power of peace, as they were to
have that of war.
On the motion for adding “and peace” after
“war” N. H. no. Mas. no. Ct. no. Pa. no. Del. no.
Md. no. Va. no. N. C. no S. C. no. Geo. no.
Adjourned
Handout E: Sample Meme
Directions: Research a national and international news story relating to the rule of law. Use a free
meme creator website, such as www.mememaker.net,to upload an image relating to the news story
and add a caption relating to rule of law. Example captions may include Rule of law #FTW (for the
win) or Rule of Law #Fail. Below is a sample meme using an image of George Washington.
© The Bill of Rights Institute
FOUNDING PRINCIPLES COURSE Rule of Law Module
Rule of Law Module: Rule of Law in the
Constitution Lesson
Overview
In these activities, students will investigate the principle of rule of law by analyzing excerpts from
Madison’s Federalist No. 62, and by studying the amendments to the Constitution that provide
for due process in criminal matters. They will then review landmark Supreme Court cases to
understand how rule of law has been carried out in constitutional controversies in U.S. history.
Finally, they will research current rule of law issues and complete a journal entry on their findings.
Recommended Time
120 minutes
Objectives
•
Students will analyze the importance of the
rule of law in a constitutional republic.
•
Students will evaluate the reasons why
criminal and civil procedure protections
came to be included in the Bill of Rights.
•
Students will identify ways in which these
protections serve to ensure liberty and limit
government. •
Students will analyze and articulate specific
protections found in the Fourth, Fifth, Sixth,
Seventh, and Eighth Amendments.
•
Students will evaluate Supreme Court
rulings concerning the Eighth Amendment’s
Cruel and Unusual Punishment Clause.
North Carolina Standards and
Objectives


Materials
Handout A: Excerpts from Federalist No. 62
Handout B: Quotes about Rule of Law
Handout C: The Bill of Rights
Handout D: Analysis of Amendments 4, 5, 6, 7,
and 8
Handout E: Examples of Search and Seizure
Cases
Handout F: Cruel and Unusual Punishment?
© The Bill of Rights Institute

CE.C&G.1.1: Explain how the tensions over
power and authority led America’s founding
fathers to develop a constitutional democracy
(e.g., mercantilism, salutary neglect, taxation
and representation, boycott and protest,
independence, American Revolution, Articles
of Confederation, Ben Franklin, George
Washington, John Adams, Sons of Liberty,
etc.)
CE.C&G.1.4: Analyze the principles and
ideals underlying American democracy in
terms of how they promote freedom (e.g.,
separation of powers, rule of law, limited
government, democracy, consent of the
governed, individual rights –life, liberty,
pursuit of happiness, self-government,
representative democracy, equal
opportunity, equal protection under the law,
diversity, patriotism, etc.).
CE.C&G.1.5: Evaluate the fundamental
principles of American politics in terms
of the extent to which they have been
used effectively to maintain constitutional
democracy in the United States (e.g., rule
of law, limited government, democracy,
consent of the governed, etc.).
FOUNDING PRINCIPLES COURSE 




CE.C&G.2.3: Evaluate the U.S. Constitution
as a “living Constitution” in terms of
how the words in the Constitution and
Bill of Rights have been interpreted and
applied throughout their existence (e.g.,
precedents, rule of law, stare decisis, judicial
review, supremacy, equal protections,
“establishment clause”, symbolic speech,
due process, right to privacy, etc.).
CE.C&G.3.1: Analyze how the rule of law
establishes limits on both the governed and
those who govern while holding true to the
ideal of equal protection under the law (e.g.,
the Fourteenth Amendments, Americans with
Disabilities Act, equal opportunity legislation).
CE.C&G.3.8: Evaluate the rights of
individuals in terms of how well those
rights have been upheld by democratic
government in the United States.
CE.C&G.4.2: Explain how the development
of America’s national identity derived
from principles in the Declaration of
Independence, US Constitution and Bill of
Rights (e.g., inalienable rights, consent of the
governed, popular sovereignty, religious and
political freedom, separation of powers, etc.).
AH1.H.1.2: Use Historical Comprehension to:



Reconstruct the literal meaning of a
historical passage.
Differentiate between historical facts and
historical interpretations.
AH1.H.1.3: Use Historical Analysis and
Interpretation to:



Identify issues and problems in the past.
Consider multiple perspectives of various
peoples in the past.
Analyze cause-and-effect relationships
and multiple causation.
© The Bill of Rights Institute
Rule of Law Module

AH1.H.1.4: Use Historical Research to:





Formulate historical questions.
Support interpretations with historical
evidence.
Construct analytical essays using
historical evidence to support arguments.
AH1.H.2.1: Analyze key political, economic,
and social turning points from colonization
through Reconstruction in terms of causes
and effects (e.g., conflicts, legislation,
elections, innovations, leadership,
movements, Supreme Court decisions, etc.).
AH1.H.4.1: Analyze the political issues
and conflicts that impacted the United
States through Reconstruction and the
compromises that resulted (e.g., American
Revolution, Constitutional Convention, Bill
of Rights, development of political parties,
nullification, slavery, states’ rights, Civil
War).
Lesson Plan
Warm-Up [20 minutes]
A. Distribute copies of Handout A: Excerpts
from Federalist No. 62 to students. Have
students work in groups to discuss the
significance of rule of law and put it in their
own words.
B. Distribute copies of Handout B: Quotes
about Rule of Law. Have students work in
their groups to put these quotes in their own
words.
Activity I: Analyzing Amendments [40
minutes]
A. Students will use Handout C: The Bill of
Rights, along with Handout D: Analysis of
Amendments 4, 5, 6, 7, and 8, to explain
what protections are included in the Bill of
FOUNDING PRINCIPLES COURSE Rights, and why each is necessary to the
promotion of liberty.
Activity II [40 minutes]
A. Students will use Handout E: Examples
of Search and Seizure Cases to apply the
principle of rule of law and decide whether
evidence should be used in trial of the
accused.
a. Additional Supreme Court cases
regarding search and seizure:
i. Escobedo v. Illinois (1964)
ii. Terry v. Ohio (1968)
iii. Nix v. Williams (1984)
iv. Chandler v. Miller (1997)
v. Knowles v. Iowa (1998)
vi. Wyoming v. Houghton (1999)
vii. Bond v. United States (2000)
viii.Kylo v. United States (2001)
ix. Ferguson v. City of Charleston
(2001)
x. Groh v. Ramirez (2004)
xi. Illinois v. Caballes (2004)
xii. Georgia v. Randolph (2006)
xiii.Hudson v. Michigan (2006)
B. Students will use Handout F: Cruel and
Unusual Punishment? to apply the
principle of rule of law and decide whether
specific punishments should be considered
cruel and unusual.
a. Additional Supreme Court cases
regarding cruel and unusual
punishment:
i. Ingraham v. Wright (1977)
© The Bill of Rights Institute
Rule of Law Module
Wrap-Up [20 minutes]
A. Have students research current events
regarding rule of law in major online
newspapers such as the New York Times,
Washington Post, USA Today, Chicago
Tribune, or others. They should write a
journal entry where they:
a. Summarize the article and how it relates
to rule of law.
b. Explain why rule of law was relevant
at the time of the Founders and is still
relevant today.
c. Explain what they can do to protect the
principle of rule of law in their own lives.
Assessment
A. See assessment activity in the introduction
for the Rule of Law module.
Handout A: Excerpts from Federalist No. 62
Directions: Use underlining, marginal notes, and other reading skills to analyze these passages.
Be ready to explain the significance of rule of law in your own words.
“… It is a misfortune incident to republican
government, though in a less degree than
to other governments, that those who
administer it may forget their obligations to
their constituents, and prove unfaithful to their
important trust…”
“A good government implies two things: first,
fidelity to the object of government, which
is the happiness of the people; secondly, a
knowledge of the means by which that object
can be best attained...”
“But a continual change even of good
measures is inconsistent with every rule of
prudence and every prospect of success…”
“In the first place, [unstable government] forfeits
the respect and confidence of other nations,
and all the advantages connected with national
character…”
“The internal effects of a mutable policy are
still more calamitous. It poisons the blessing
of liberty itself. It will be of little avail to the
people, that the laws are made by men of their
own choice, if the laws be so voluminous that
they cannot be read, or so incoherent that
they cannot be understood; if they be repealed
or revised before they are promulgated, or
undergo such incessant changes that no man,
who knows what the law is to-day, can guess
what it will be to-morrow. Law is defined to be a
rule of action; but how can that be a rule, which
is little known, and less fixed?”
© The Bill of Rights Institute
“Another effect of public instability is the
unreasonable advantage it gives to the
sagacious [crafty], the enterprising, and
the moneyed few over the industrious and
uninformed mass of the people. Every new
regulation concerning commerce or revenue,
or in any way affecting the value of the different
species of property, presents a new harvest to
those who watch the change, and can trace
its consequences; a harvest, reared not by
themselves, but by the toils and cares of the
great body of their fellow-citizens. This is a
state of things in which it may be said with
some truth that laws are made for the few, not
for the many.”
“In another point of view, great injury results
from an unstable government …What prudent
merchant will hazard his fortunes in any new
branch of commerce when he knows not but
that his plans may be rendered unlawful before
they can be executed? …In a word, no great
improvement or laudable enterprise can go
forward which requires the auspices of a steady
system of national policy.”
“But the most deplorable effect of all is that
diminution of attachment and reverence
which steals into the hearts of the people...
No government, any more than an individual,
will long be respected without being truly
respectable; nor be truly respectable, without
possessing a certain portion of order and
stability.”
Handout B: Quotes about Rule of Law
Directions: Read the following quotes and put them in your own words. What concepts to the
quotes all have in common?
1. “They are to govern by promulgated
established laws, not to be varied in
particular cases, but to have one rule for
rich and poor, for the favorite at court, and
the countryman at plow.” —John Locke,
Second Treatise of Government, 1690
6. “There is no position which depends on
clearer principles than that every act of a
delegated authority, contrary to the tenor of
the commission under which it is exercised,
is void.” —Alexander Hamilton, Federalist
No. 78, 1788
2. “But nothing can be more absurd than to
say, that one man has an absolute power
above law to govern according to his will.”
—Algernon Sidney, Discourses Concerning
Government, 1698
7. “No legislative act, therefore, contrary to
the Constitution, can be valid.”—Alexander
Hamilton, Federalist No. 78, 1788
3. “No legislative, supreme or subordinate,
has a right to make itself arbitrary.”—James
Otis, “Rights of the British Colonies
Asserted and Proved,” 1764
4. “But can his majesty thus put down all
law under his feet? Can he erect a power
superior to that which erected himself? He
has done it indeed by force; but let him
remember that force cannot give right.”
—Thomas Jefferson, “A Summary View of
the Rights of British America” 1774
5. “This Constitution, and the Laws of the
United States which shall be made in
Pursuance thereof; and all Treaties made,
or which shall be made, under the Authority
of the United States, shall be the supreme
Law of the Land.”—The Constitution of the
United States, 1787
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8. “To what purpose are powers limited, and
to what purpose is that limitation committed
to writing, if these limits may, at any
time, be passed by those intended to be
restrained?”—John Marshall, Marbury v.
Madison, 1803
Handout C: The Bill of Rights
Directions: Read the Bill of Rights and complete Handout D.
Amendment I Congress shall make no law
respecting an establishment of religion,
or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the
press; or the right of the people peaceably to
assemble, and to petition the government for a
redress of grievances.
Amendment II A well regulated militia, being
necessary to the security of a free state, the
right of the people to keep and bear arms, shall
not be infringed.
Amendment III No soldier shall, in time of
peace be quartered in any house, without the
consent of the owner, nor in time of war, but in
a manner to be prescribed by law.
Amendment IV The right of the people to
be secure in their persons, houses, papers,
and effects, against unreasonable searches
and seizures, shall not be violated, and no
warrants shall issue, but upon probable
cause, supported by oath or affirmation, and
particularly describing the place to be searched,
and the persons or things to be seized.
Amendment V No person shall be held to
answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment
of a grand jury, except in cases arising in the
land or naval forces, or in the militia, when in
actual service in time of war or public danger;
nor shall any person be subject for the same
offense to be twice put in jeopardy of life or
limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be
© The Bill of Rights Institute
deprived of life, liberty, or property, without due
process of law; nor shall private property be
taken for public use, without just compensation.
Amendment VI In all criminal prosecutions,
the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the
state and district wherein the crime shall have
been committed, which district shall have
been previously ascertained by law, and to
be informed of the nature and cause of the
accusation; to be confronted with the witnesses
against him; to have compulsory process for
obtaining witnesses in his favor, and to have
the assistance of counsel for his defense.
Amendment VII In suits at common law,
where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall
be preserved, and no fact tried by a jury, shall
be otherwise reexamined in any court of the
United States, than according to the rules of the
common law.
Amendment VIII Excessive bail shall not be
required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.
Amendment IX The enumeration in the
Constitution, of certain rights, shall not be
construed to deny or disparage others retained
by the people.
Amendment X The powers not delegated
to the United States by the Constitution, nor
prohibited by it to the states, are reserved to
the states respectively, or to the people.
Handout D: Analysis of Amendments
4, 5, 6, 7, and 8
Directions: Analyze the Bill of Rights (Handout C) to complete this table.
List specific rights protected
Amendment 4
Amendment 5
Amendment 6
Amendment 7
Amendment 8
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Explain why each right is important to
the promotion of liberty
Handout E: Examples of Search and
Seizure Cases
Directions: Apply the principle of rule of law and decide these cases regarding search and seizure
issues.
1. Olmstead v. United States (1927)
The police had suspected for several years that Roy Olmstead, a resident of Washington state,
was involved in smuggling and selling alcohol in violation of the nation’s Prohibition laws. Without
first getting a warrant, the government wiretapped phones that they knew Olmstead used in
his business, even though wiretapping itself was a violation of Washington state law. Based on
evidence obtained by listening to Olmstead’s conversations, the federal government prosecuted
and won a conviction against him for illegally selling alcohol.
Olmstead maintained that the wiretapping amounted to a warrantless search and seizure, and
evidence obtained through this illegal search should not be used against him. The prosecutors
argued that they had not entered Olmstead’s property or conducted a physical search. The wiretap
was completed from the outside of his property by accessing telephone lines that were freely
available.
Was this warrantless electronic “search” of Olmstead’s conversations a violation of his
Fourth Amendment protection against unreasonable search and seizure and his Fifth
Amendment protection against self-incrimination?
______yes
______no
Why? _______________________________ Why not?____________________________
2. Mapp v. Ohio (1961)
Cleveland police, acting on a tip that a bombing suspect had been hiding in the home of Dollree
Mapp, demanded entrance. She asked for their warrant and called her lawyer. After several hours
and the arrival of additional officers, police claimed to have a warrant, and officers forced their way
into the house.
Mapp still demanded to see the warrant. One officer held up a piece of paper, claiming it was a
warrant. She grabbed it and put it inside her clothing. An officer recovered it and they carried out a
complete search of the house.
© The Bill of Rights Institute
The officers found a trunk of “lewd and lascivious” books, pictures, and photographs in Mapp’s
basement, along with documentation related to illegal gambling. Mapp was arrested for violating
Ohio’s criminal law prohibiting the possession of obscene materials. At trial, the court found
her guilty of possessing the obscene materials based on the evidence presented by police. No
warrant was ever produced. Dollree Mapp raised a First Amendment claim, saying she had a
right to possess the books. But in the U.S. Supreme Court, the Justices did not address her First
Amendment claim. They instead focused on the warrantless search.
Was this warrantless search of Mapp’s house a violation of her Fourth Amendment protection
against unreasonable search and seizure?
______yes
______no
Why? _______________________________ Why not?____________________________
3. Florence v. The Board of Chosen Freeholders (2011)
Albert Florence was arrested on a warrant for a traffic violation, even though he had already paid
the fine. In jail, he was strip searched twice in seven days. Florence filed a lawsuit against jailers,
maintaining that the jailhouse searches were unreasonable because he was being held for failure
to pay a fine, which is not a crime in New Jersey. Jail officials argued that it was reasonable to
search everyone being jailed, even for minor offenses, and even if there is no suspicion that the
person may be concealing drugs or a weapon. The need for jailhouse security, they claimed,
outweighed any prisoner’s rights against unreasonable search and seizure.
Did these suspicionless searches violate Florence’s Fourth Amendment protection against
unreasonable search and seizure?
______yes
______no
Why? _______________________________ Why not?____________________________
© The Bill of Rights Institute
Handout F: Cruel and Unusual Punishment?
Directions: Review scenarios from Supreme Court cases and apply the principle of the rule of law
to determine if the sentence from each case could be considered cruel and unusual punishment.
1. Robinson v. California (1962)
A Los Angeles police officer arrested Lawrence Robinson one night because he noticed tracks on
Robinson’s arms similar to those of drug addicts. Robinson was not doing anything illegal or under
the influence of drugs at the time, but he did admit to the officer that he sometimes used illegal
drugs, and a California law made it a misdemeanor to be a drug addict. The next morning, another
officer with long experience in the Narcotics Division reached the conclusion that the marks on
Robinson’s arms were the result of injections of illegal drugs. At his trial, Robinson denied having
used illegal drugs and stated that the marks on his arms were an allergic reaction to a treatment
he had received when in the military. However, the jury found him guilty of being an addict and
sentenced him to 90 days in prison.
Though he denied being an addict, Robinson believed that the California law, which did not require
proof that the defendant bought or used illegal drugs in California, nor that he have any drugs in his
possession, was a violation of his Eighth and Fourteenth Amendment protections against cruel and
unusual punishment.
Given these circumstances, was Robinson’s imprisonment upon being convicted of the
condition of drug addiction a violation of his 8th and 14th Amendment protections against
cruel and unusual punishment?
______yes
______no
Why? _______________________________ Why not?____________________________
2. Furman v. Georgia (1972)
In 1967, William Furman broke into a home during the night intending to carry out a burglary. The
homeowner heard the noises from the kitchen and came to investigate. Furman turned to flee, and
ran out the kitchen door. Furman said he tripped, dropping his gun, which accidentally discharged.
Tragically, the shot struck the homeowner in the chest, killing him instantly. Since the murder took
place during the commission of a felony, Furman was eligible to receive the death penalty under
Georgia law, even though the shooting itself was an accident. Furman was poor, uneducated, and
mentally ill, and the jury found him guilty and sentenced him to death in a one-day trial.
© The Bill of Rights Institute
Given these circumstances, did the death penalty for Furman violate his 8th Amendment protection
against cruel and unusual punishment?
______yes
______no
Why? _______________________________ Why not?____________________________
3. Gregg v. Georgia (1976)
The Furman decision (1972) invalidated all previously enacted death penalty laws in the U.S. In its
post-Furman statute, the Georgia legislature sought to correct the arbitrary, “freakish,” or “random,”
nature of the imposition of the death penalty in Georgia. This new law provided guidelines
regarding the jury’s consideration of both aggravating and mitigating factors, and it required
mandatory review by the Georgia Supreme Court of any death penalty sentence.
In 1974, Troy Leon Gregg was convicted of having committed armed robbery and murder of two
men who had given him and a companion a ride when they were hitchhiking the previous year.
The trial judge was careful to follow all the new law’s guidelines in conducting Gregg’s case.
Before it could impose the death penalty, the jury must find at least one of 10 different aggravating
circumstances in the crime. Gregg’s jury found that there were two aggravating circumstances:
he had committed the murders during the commission of other capital crimes (armed robbery),
and for the purpose of receiving the victims’ property. The Georgia Supreme Court found that the
sentences for murder did not result from prejudice or other arbitrary factors, and upheld the jury’s
verdict and sentence.
Given these circumstances, did the death penalty for Gregg violate his Eighth Amendment
protection against cruel and unusual punishment?
______yes
______no
Why? _______________________________ Why not?____________________________
© The Bill of Rights Institute
Rule of Law Module Answer Key
Lesson One: What is the Rule of
Law?
Handout A: Explaining the Founding
Essay
1. Rule of law is important because it limits the
government and the people under the same
set of laws so that they cannot infringe
upon rights.
2. The Founders believed that all men by
nature had equal rights. To protect natural
rights, as well as many of the legal rights
of Englishmen, the Founders wrote the
Declaration of Independence to notify
Britain and the world that their rights
were being infringed. They then wrote
the Constitution to ensure that the new
government they created wouldn’t infringe
upon those natural and legal rights.
3. Locke’s idea of natural rights and its
emphasis on individual freedom and
government by consent combined
powerfully with the older idea of common
law rights to shape the political theory of
the Founders. They used Locke’s principles
of securing life, liberty, and property of the
people in the Declaration of Independence.
They also understood that without rule
of law, people would resort to a state of
nature. Republican government was a way
in which to ensure that rule of law was
upheld and rights were protected.
4. The Founders were influenced by
the ancient republican systems by
understanding that they could protect
individual rights, but that they could be
© The Bill of Rights Institute
fragile. Citizens in a republic needed to
be virtuous in order for the government to
survive. They also knew that the people
had to put the good of the whole nation
above their own interests to keep the wrong
people from gaining power and infringing
upon natural rights.
Handout C: Viewing Guide for
Constitutional Principle: Rule of Law
Before you watch:
1. Sample answers: rules, laws, police,
judges, searches, crime, arrest, warrant,
trials, due process, fairness, freedom,
equality, etc.
2. Sample answers: Protects peoples’ rights,
warrants must be obtained for arrests
or searches and seizures, jury trials,
witnesses, etc.
While you watch:
1. Attainder
2. Ex post facto
3. Jury
4. Warrant; probable
5. Lawyer; accusers; witnesses; speedy
6. Jeopardy
7. Bail; punishment
8. Grand jury; two; confession
After you watch, answer the following
questions on your own paper:
1. Rule of law means that there are known
and settled laws that were established in a
system that is open for all to see. The rules
are stable and cannot suddenly change
– established legal processes must be
followed.
2. States elected delegates to send to the
Constitutional Convention to modify the
system of government when the Articles
of Confederation were not working. After
the Constitution was written, it was sent
to each state to be ratified by delegates
elected by the people of the state. Despite
many arguments about the Constitution
and its ratification, people did not resort to
violence.
3. Accept reasoned answers.
4. Accept reasoned answers.
5. The rich and powerful have always had the
ability to manipulate the government for
their own ends. By protecting rule of law,
the government is also protecting the rights
of ordinary people who do not have money
or power.
6. Accept reasoned answers.
Amendment 6: Accused persons shall have
the right to a speedy and public trial; trials will
be decided by an impartial jury; trials will be
held in the state and district where the crime
took place; the accused will be informed of the
nature of the accusation; the accused must be
able to confront witnesses and obtain witnesses
in his or her favor; the accused person should
have assistance from an attorney to defend him
or herself.
Amendment 7: If the value in a suit is over
twenty dollars, the suit should be decided by
a jury; no fact determined by a jury should be
retried by any court unless it is according to the
rules of common law.
Amendment 8: Excessive bail or fines or cruel
and unusual punishments must not be inflicted.
7. Accept reasoned answers.
Handout E: Examples of Search and
Seizure Cases
Lesson Two: Rule of Law in the
Constitution
1. Yes – The police did not get a warrant to
wiretap Olmstead’s phone, which violates
the Fourth Amendment.
Handout D: Analysis of Amendments
4, 5, 6, 7, and 8
Amendment 4: Against unreasonable searches
and seizures, warrants shall not be issued
unless there is probable cause; warrants
must describe the place to be search and the
persons or things to be seized.
Amendment 5: A grand jury will decide if a
person is held to answer for a capital crime;
no person shall be tried for the same crime
twice (double jeopardy); no person should
have to testify against himself; no person shall
be deprived of life, liberty, or property without
the due process of law; property will not be
taken for public use without just compensation
(eminent domain).
© The Bill of Rights Institute
2. Yes – The police should have had a
warrant to search Mapp’s house and seize
her belongings. Even if they had gotten a
warrant, it would have listed the bombing
suspect, not obscene literature, as the
object of their search.
3. No – The Court ruled in a 5-4 decision that
the strip search was permissible in this
case (though not necessarily in every case)
because of the need for jails to keep their
employees and inmates safe. It is too hard
to verify that no contraband is being brought
into the jail unless officials are allowed to
carry out a complete search. The Court’s
dissenters argued that strip searches
in arrests for minor offenses that do not
involve drugs or violence are unreasonable
unless prison officials have reasonable
suspicion that a particular individual has
drugs or contraband.
Handout F: Cruel and Unusual
Punishment?
1. Yes – Robinson was punished severely for
a misdemeanor and his conviction was not
based on evidence.
2. Yes – Furman did not intentionally commit
murder and was mentally ill. The Court’s
decision in this case forced states and the
national legislature to reevaluate, and in
some cases to rewrite, their death penalty
laws in order ensure that the death penalty
was not being used in an unpredictable,
random, or discriminatory manner.
3. No – Gregg’s crimes met the standards for
aggravating circumstances in two ways,
and the sentence was not arbitrary. Gregg’s
trial, conducted under rules set by the
new Georgia death penalty law, provided
due process. The night before he was to
be executed in Georgia in 1980, Gregg
escaped from prison and was killed in a
fight in North Carolina.
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