Prejudice and Promise in the Early Years of the Federal Judiciary

Preserving the dignity of the human individual and protecting individual rights from the excesses of governmental power have been endemic problems for politically organized society in the western world for centuries. From antiquity and the early middle ages comes the thought that "government" became necessary because of he sinfulness or depravity of man. But it was not suggested that rulers should be all-powerful nor that the people who are governed should be entirely at the mercy of government. Indeed, our classic ideal of the democratic state first emerged in Greece, then briefly again in Rome, and later — but for short periods — in some portions of the modern world. History reveals various ways by which men have sought to accommodate the interests of the government and the governed, whether in the truly democratic state or in its various modern forms. Thus, in the Anglo-American world, few concepts have had more enduring force than the principle of a rule of law, first enunciated in modern legal form by Bracton in the Middle Ages. "The King," he said, "must not be under man but under God and under the law." Early in the 17th century, Chief Justice Coke repeated the principle in Latin to King James I of England: A king must rule "[n]on sub homine sed sub Deo et lege" — a declaration which is engraved in stone over the front entrance of the Harvard Law School.