The Rule of Law Ideal in Early American Constitutional Theory

Sigma: Journal of Political and International Studies

Volume 9 Article 6

12-1-1991

Founding a Republic of Laws: The Rule of Law Ideal in Early American Constitutional Theory

Robert Moye

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Founding a Republic of Laws:

The Rule of Law Ideal in Early American Constitutional Theory

by

Robert Moye

Introduction contemporary implications. Their constitu­ tional experiment attempted, among other Although there is a wealth of scholarship things, to minimize the tendency toward available on the political and constitutional arbitrary government by incorporating the theories of the American Founders, many rule of law ideal in their governing institu­ commentaries overlook or misunderstand tions and procedures. While most scholars one of the most important elements in the recognize the great care with which the Framers' thought: their desire to implement Founders refashioned the nation's authorita­ the rule of law ideal into the new national tive institutions, they often ignore important government. Much of this confusion may procedural aspects of constitutional theory; be attributed to contemporary disagreement some even exacerbate this mistake by dis­ about what the rule of law actually implies, missing certain of the Constitutions' proce­ and the remainder to a mistaken belief of dural innovations as unsophisticated. what the term meant for the Founders. In Fortunately, some scholars avoid such current parlance, the term suggests only a errors. Noting the enormous difference minimal equality--that no person should be between rule by established legal procedures "above the law"--but the concept meant a and rule by an unpredictable human will, great deal more to the Founders. George and Scarlett Graham observe that: During the nation's formative years, American statesmen had a clear conception Underlying each principle, institution, and practice of what the term "the rule of law" meant to explored by the Founders was one basic presuppo­ classical thinkers, as well as the ideal's sition that was unchallenged by any theory of RULE OF LAW IDEAL 51

experience brought to their deliberations: the informed political judgement on the value of government to be founded must be a government of procedure. In fact, the rule of law has been law rather than of men. (1977, xiii) described as a political ideal which defines ~e nature of law itself and imposes limita­ In this paper, I will attempt to show that the tions on government (Hayek 1960, 206). American Founders' constitutional theories Sor:ne modern commentators dispute this were influenced by their perceptions of the claIm; but, for the Founders, the notion of rule of law ideal and its procedural implica­ the rule of law was a legal ideal which tions. I do not argue that the Founders were informed the time-honored procedures order­ uninspired by other sources (i.e. classical ing a free society. economics, protestant religion, civic virtue, or their faith in "enlightened" reason), but rather that this type of explanation offers, at The Ori&ins and Development of an Ideal best, only an incomplete picture of the Founder's intentions. A truer picture of the The philosophers of ancient Greece and Framers' motivations must also include their Rome were among the first to formulate the commitment to the rule of law ideal and its concrete implications of what later came to traditional emphasis on legal procedures. be called "the rule of law." In his 1960 To liberal statesmen living before and work ~ Constitution of Liberty, Austrian during the Founding era, there seemed to be economIst F. A. Hayek challenged the a fairly obvious, necessary connection be­ pr~vailing ass~mption that ancient political tween the rule of law and the legitimacy of phIlosophy rejected an individualistic con­ a government. Although they rarely em­ ception of personal liberty . He insisted that, ployed the phrase "rule of law," they made for many Greeks, government by legal frequent references to the ideal and its implications in a myriad of documented p~~u~es (which he calls isonomia) , as dIStingUIshed from human will or caprice discussions on the subject. The Founders entailed certain conditions. Those stan: and their intellectual predecessors envisioned dards, as described by the lawgiver Solon, the legal processes of any legitimate political were that 1) all citizens, regardless of class, system as limited by certain procedural would share the same laws, and 2) that the norms implied by the rule of law ideal: government would abide by known and these included nulla poena sin lege (Usually certain rules (Hayek 1960, 165). Hayek translated as "no punishment in the absence further argued that many Greeks even pre­ of a crime"), due process, just compensa­ ferred government by isonomia over demo­ ~on, trial by jury, the general and prospec­ kratia, or equal participation, because estab­ ~ve na~re of legal statutes, and the prohibi­ lished legal procedures protected their free­ tion agamst ex post facto laws and bills of dom (165). For the Greeks then, a free attainder. government was a government of law, since Given the Founders' commitment to legal procedures, by definition, placed individual liberty, the line separating their limitations on the exercise of power in any legal conventions from liberal political government that claimed legal sanction. theory often becomes tenuous or even Spurred by the ancient Greeks most indiscernible. From the persp~tive of the liberal thinkers recognized that a as Framers, the legal process itself reflected an l~w, opposed to a command or some other direc- 52 PSA REVIEW tive, implied a certain generality of purpose (Hayek 1960, 164). In fact, legal equality and prospectivity of scope (Wormuth 1949, implied more in the traditional, British 10). The equal, general, public, and pro­ context than an individual's formal standing spective nature of human law suggested that before a court. Hayek notes that the strug­ legal procedures, by definition, could serve gle between Parliament and the monarchy as an effective curb on sovereign caprice. further defmed the rule of law to include a Equally important, while ill-suited to ad­ prohibition on the exercise of arbitrary vance certain policy goals, the municipal power: not simply power exercised by an law could function as a facilitator for the unauthorized source, but rather a usage in actions of an individual. In governments violation of general, fundamental rules which claimed to serve the people, the rule (169). The rule of law principle of generali­ of law ideal encouraged the rulers to restrain ty implied equality under the law, and pro­ their actions and protect the liberty of their spectivity required that legal judgments be subjects. Even Plato, whom many commen­ based on the results of individual choices, tators paint as a totalitarian, intimated that not on human caprice (Wormuth 1949,212). "a primary function of government was to Francis D. Wormuth has observed that protect and maintain the law of [and for] the in classic constitutional theory, the doctrine people" (Reynolds 1987, 83). of separation of powers is a vehicle for The influence of the classical rule of law safeguarding the generality of rules: keep­ ideal was not wholly a Greek phenomena. ing the legislature from enforcing its own In ancient Rome, Cicero noted that freedom laws, and the executive from judging its should never be confused with lawlessness; own case (1949, 8). During the English liberty actually hinged on the certainty Civil Wars, John Lilburne, a leader of the supplied by general rules. Such rules, or radical Leveler party, advocated separating leges legwn, served as both a guide for the power among the distinct arms of the British citizen and a restraint on the state (Hayek government organization as a way of confin­ 1960, 167). Such a notion of liberty im­ ing the legislature to enacting only" general plied a relationship, analogous to a contract, and prospective rules" (Hickman 1983, between the people and their rulers 369). Although Parliament could not be (Reynolds 1987, 84). Indeed, the law func­ persuaded, nearly every American thinker of tioned as an equally accessible protector of the Founding era eventually accepted Mon­ the people's prerogatives (Hayek 1960, tesquieu's separation of powers as an essen­ 166). Although this ideal did not reflect tial part of constitutional theory (369). later Imperial practices, the "recognized During the English Civil Wars this ultimate basis" for all laws in ancient Rome "Enlightenment" conception of political was professedly the will or consent of the institutions managed to win the near-univer­ people themselves (Reynolds 1987, 84). sal acceptance of ideas like common con­ The ancient rule of law ideal received a sent, the separation of powers, an indepen­ warm reception in sixteenth-century Eng­ dent judiciary, and written constitutions. land. The terminology gradually changed Significantly, each of these ideas is based on from the anglicized "isonomy" to "equality the notion of the rule of law. Although in before the law," or "a government of laws, " Great Britain, especially just prior to the and finally to "the rule of law," but the Colonial rebellion, the classical concepts concept of isonomia remained the same were often subordinated to policy goals, RULE OF LAW IDEAL 53 they have remained an integral part of mod­ Blackstone further remarks that the legal ern conceptions about legitimate govern­ relationship between individual property ment. rights and the governing authority is, and should be, controlled by traditional practices and procedures, such as that of "full indem­ The Rule of Law in America nifIcation" for seized property (586). The seizure of property was not absolutely pro­ To a large degree, the American statesman hibited; rather, it was constrained by social inherited their conceptions of the rule of law conventions which reduced the prospects of ideal from their English forebears. Howev­ its use. This idea later found its way into er, they made important contributions of the U.S. Constitution in the requirement of their own, especially in relation to the im­ "just compensation" for the exercise of the portance of established legal procedures. government's eminent domain (see Amend­ One commentator, in fact, has observed that ment V.). many substantive rights enjoyed under An­ Second, in a 1771 speech, preparatory to glo-American legal systems depended on a Boston election, Protestant minister John traditional, procedural guarantees (Reid Tucker touched on many aspects of the 1988, 69). Historical documents yield an nature and purposes of government. His abundant supply of subtle references to the remarks, interwoven with familiar religious rule of law and its procedural implications, rhetoric, imply not only that his audience but I discuss here only a few of the more needed no lengthy justifIcations or explana­ interesting. tions of his political assertions, but also that First, in his 1765 Commentaries, Wil­ his listeners shared with him a commitment liam Blackstone made reference to certain to certain fundamental principles. One of fundamental legal principles of any legiti­ his observations was that "all laws and rules mate government. When discussing the of government [must] be as plain as possi­ sanctity of private property, he remarked ble" (Hyneman and Lutz 1983, 164). that For Tucker, this seemed like a basic requirement in any society that expected its [T]he great charter has declared that no freeman laws to be obeyed. Citing John Locke, he shall be disseised, or divested of his freehold, or of mentions that readily understandable laws his liberties, or free customs, but by the judgement preclude the exercise of tyrannical authority of his peers, or by the law of the land (Kurland and Lerner 1987, 586) in the guise of complicated legal procedures; indeed, the very defInition of tyranny is the Though he was a fIrm believer in the Lock­ exercise of the state's coercive power with­ ean version of natural law, Blackstone de­ out the sanction of legality (164). While fIned concepts like due process and the trial Tucker was not the fIrst, or the last, of the by jury as legal stipulations, not immutable Founding era to defIne the boundaries of principles. The example cited above illus­ political legitimacy in this way, his argu­ trates that, for him, the Magna Carta was an ments in an ostensibly religious discourse agreement on legal procedures between suggests that the principles of the rule of sovereign and subjects, not simply a power­ law had already become widely accepted in sharing arrangement between nobility and colonial America. SignifIcantly, those monarchy. 54 PSA REVIEW principles were also universally accepted by Fifth, when the colonists made their the American Founders. break with Great Britain, the Declaration of Third, many of the Founders understood Independence contained the straightforward the limitations that the use of the law, as charge that Parliament and the Crown had such, placed on a legislature's methods. disregarded the legal methods incumbent The rule of law demanded that, in addition upon any government. The document's to binding a government to obey its own arguments are based primarily on a violation rules (see Federalist #33), any particular law of traditional legal practices, not on moral should be a known and stable rule (Federal­ or philosophical considerations. Thomas ist #62). James Wilson observed that "law Jefferson, the principal author, carefully is called a rule, in order to distinguish it defended the colonists' separation with from a sudden, a transient, or a particular England on legal grounds, and the eloquence order: uniformity, permanency, stability, of the preamble should not obscure the characterize a law" (West 1987, 153). In conscious attempt to do so (Reynolds 1987, colonial America, this concept served to 89). distinguish tyranny from political legitimacy; Note the substance of a few of the colon­ a government rules by dispassionate laws ists' complaints against the Crown: subordi­ and a tyrant rules by pointed, prejudicial nating an independent judiciary; abolishing commands and the force of his will. charters and laws; convening the legislatures Fourth, by 1776 most American thinkers in inconvenient locations; obstructing natu­ had accepted the postulate that all authority ralization laws; depriving citizens of the wishing the sanction of legality must con­ right to trial by a jury; and in general, form to the principles stipulated by the "abolishing the free system of English people themselves, and additionally, must laws." In short, although the Founders did adhere to certain time-honored principles of believe in natural laws and principles, they conventional legal procedure. When George sought conventional, legal justifications for Mason of Virginia wrote the Virginia Decla­ their actions. For the colonists, the de­ ration of Rights, one of the models for the mands of natural law and traditional legal Bill of Rights, he included a number of procedure were coextensive (Wood 1969, traditional, procedural guarantees, especially 10). in the area of criminal law. Among them Gordon Wood concludes that the Found­ are prohibitions against excessive bail, cruel ing Fathers "revolted not against the English and unusual punishments, self-incrimination, constitution but on behalf of it" (1969, 10). and guarantees of search by warrant, trial by Though they selectively borrowed ideas jury, criminal convictions by unanimous from radical writers most favorable to the vote, the right to confront one's accuser, American experience, they truly believed and the ability to call witnesses in one's that they were protecting their rights as behalf (Kurland and Lerner 1987, 6). Al­ Englishmen (13). The American statesmen though many today see these provisions as a were astonished that the British government, burden on society, to the Founders they previously regarded as a defender of liberty, represented a nearly insurmountable proce­ could disregard its own traditions and claim dural barrier to those who would exercise that Parliament superseded the law (Reid arbitrary or tyrannical power. 1988,57). For them, the violation of estab­ lished procedures, with no expectation of RULE OF LAW IDEAL 55 redress or change, justified a revolution. The Rule or Law and the Constitution Their defense was that the English Crown had threatened their liberty by abandoning F. A. Hayek has noted that, for the Found­ the universally accepted principles of the ers, a constitution signified a commitment to rule of law, and they expected to be vindi­ the rule of law, as well as a safeguard cated in the eyes of all who took legitimate against the exercise of arbitrary power--by government seriously. the legislature and by the people themselves Sixth and finally, John Adams recog­ (1960, 178). Since conventional legal pro­ nized that the basis for any government that cedures were not to be sacrificed to short­ espoused republican principles would be the term policy goals, constitutionalism also rule of law ideal. He used a variation of the entailed a commitment to abide by long-term modern term in his 1776 Thoughts on Gov­ principles instead of short-term interests ernment, claiming that a republican form of (179). Though a written constitution could government was "an empire of laws, not of not preclude or ultimately frustrate the will men" (Kurland and Lerner 1987, 108). In of the people, it could limit the means by his 1787 Defence of the Government of the which a temporary majority can pursue its United States, he further insisted that free objectives (180). governments must depend on the laws for In short, constitutional arrangements their legitimacy, and that legal processes for were agreements to abide by fundamental addressing grievances must be available to procedural norms. Lawrence Friedman every citizen. believes that:

Every citizen must look up to the laws, as his American statesmen tended to look upon a written master, his guardian, and his friend; and whenever constitution as a kind of social compact--a basic any of his fellow-citizens, whether magistrates or agreement among citizens, and between citizens subjects, attempt to deprive him of his right, he and state, setting out mutual rights and duties, in a must appeal to the laws ... (346) permanent form (1983, 115).

Although I have cited only a few out of Among Americans, a constitution embodied innumerable possible examples, they reveal a society-wide agreement. The state and that by 1787, the concept and terminology federal constitutions actually created certain of the rule of law ideal had permeated al­ rights and duties additional to those the most every level of American political people naturally enjoyed. They also ground­ discourse. As in the classical civilizations, ed the authority and the formal limitations the rule of law, instead of human capricious­ on government in the express or implied ness, was seen as the protector of individual consent of the people (115). freedom. The Founding of the United States The whole point behind constitutional­ of America entailed an ambitious attempt to ism, and indeed behind the rule of law, was implement the rule of law ideal into the to protect liberty. Prior to the Revolution, constitution of the nation's new government. Americans commonly believed that the Though it does not exhaust the concept's antithesis of liberty was arbitrary authority definition or implications, constitutionalism (Reid 1988, 59). Traditionally, Americans is based upon the rule of law ideal. believed that the law's whole purpose and reason for existence was to restrain or thwart the exercise of such arbitrary power 56 PSA REVIEW

(63). For some liberty-minded Americans, for seizure of property, jury trials, and the "there was no accusation against an official need for a warrant authorizing a search, all more serious than that he sought to impose helped reduce the likelihood that the state arbitrary rule" (55). Eighteenth-century could use coercion arbitrarily. Such con­ Britons believed that the king was most ventions tended to preserve the ability to likely to exercise arbitrary power and the freely pursue one's individual initiatives colonists saw the danger stemming from within the boundaries prescribed by law. Ex Parliament; but both agreed that liberty post facto laws and bills of attainder are became vulnerable when the state began to specifically prohibited by the American govern by subjective prerogative (79). constitution (and others) because they frus­ John Phillip Reid believes that the colo­ trate efforts to use the law as a guide for nists thought their liberty depended on two individual initiative. things: 1) that the laws of a society must be In this context, liberty for the American based on the consent of the governed; and 2) Founders meant living under a constitutional that all laws must be subject to the tradition­ government and, in its eighteenth-century al requirements of legal due process, not formulation, constitutionalism was the notion administered by discretionary authority (80). of rule by law in a civil society (74). Sig­ Echoing Cicero, he observes that law was nificantly, the procedural safeguards which the "central pillar" of the Americans' tradi­ served as a protection against the tendency tionalliberty; it owed its existence to legally towards arbitrary government formed the defined boundaries and without them could crux of the Americans' constitutionalliber­ not exist (60). According to eighteenth­ ties (77). The notion of freedom that later century thinkers, the law essentially bal­ came to be associated with America's most anced the natural inequalities of individuals democratic principles was wholly a new idea (62), creating the security necessary to enjoy (77). "American Whigs," Reid notes, "con­ private property rights. The fictional "ex­ tinued to associate 'true liberty' with 'legiti­ change" of a portion of one's personal mate government,' and to define liberty as liberty for protection was widely endorsed government under the rule of law" (84). as a useful idea (68-71). Therefore the rules For the Americans, the rule of law was, in and conventions of a well-established legal fact, constituted by customary legal proce­ process protected the people in the enjoy­ dures (85). ment of their property (and other) rights. Although nearly all the Founders be­ lieved that substantive rights emerged from The Difficulties in Modern Discourse nature, they recognized that one could only enjoy such rights as a member of a civil While many critics have explored the Fram­ society. In his most interesting argument, ers' emphasis on the rule of law, most Reid contends that the rights the Americans modem commentators tend to disregard the enjoyed were actually simple legal stipula­ procedural aspect of constitutionalism and tions; in certain cases, rights well-founded attempt to explain the phenomena in other in tradition received the appellation of "natu­ terms. Few have recognized any underlying ral" as well (64). In other words, many significance for the Founders' constitutional basic rights were legal instead of natural. theories. Charles Hyneman, for example, Procedures like due process, compensation cogently observes that since the Founders RULE OF LAW IDEAL 57 established the new national government by that 1) the government would be bound by legal enactment, the actions of the govern­ the same rules as the citizens, and 2) that ment were to be limited by laws (1977, 7). there would be certain permanent restraints Yet he then denies that the Founders hoped on government powers; otherwise their to cement the rule of law ideal into a pre­ efforts to write and ratify a constitution ferred position in the federal system. In his become "nonsense" (1977, xiii). They even modem view, the stability guaranteed by conclude that the Constitution was based legal procedures is necessarily subordinate upon the rule of law (xiii). Yet they miss a to public policies designed to advance the prime opportunity to explore the reasons people's collective well-being (11). Echoing why the Framers would prefer the rule of Hyneman's sentiments, Donald Lutz pres­ law over any of their other possibilities. ents the rule of law as only one of several In yet another case, although he recog­ competing political theories among the nizes that the Founders were profoundly Founders, and not as one with any particular influenced by the classical notions of the significance (1977, 62). rule of law, Francis D. Wormuth criticizes Hyneman and Lutz, at least, try to ac­ their views as naive. He asserts that, re­ count for the rule of law's procedural as­ gardless of the generality or prospectivity of pect. Many commentators oversimplify the a given rule, its content makes the real rule of law ideal and its implications, con­ difference; immoral laws can be adminis­ centrating instead on other assumptions or tered impartially to everyone's detriment facets of constitutionalism. Many careful (1949, 214). While this is, of course, true, thinkers even dismiss the rule of law ideal the point that Wormuth misses is that such as simplistic. The most facile, yet frequent­ a risk is present in any legal system. Yet a ly heard, objection to the idea of the rule of commitment to an impartial administration law is that any government framed and of the laws, which purports to bind the administered by fallible men cannot really rulers as well as the citizens, does have the be a government of law, since it must ulti­ tendency to minimize the likelihood that any mately rest on subjective political judg­ government will enact oppressive laws. For ments. the Founders, the impartial administration of Of course that statement begs the ques­ any rules was preferable to an existence tion by ignoring the enormous difference wholly dependent on a government's whim between an essentially arbitrary system and pleasure. based on human will and bounded by ca­ More recently, Thomas G. West has price, and one that is constituted, albeit offered a considered account of cons­ imperfectly, by traditional, procedural con­ titutionalism by attempting to ground its ventions. Most of the more fruitful, con­ assumptions in classical teleology. Taking temporary discussions on the Founders' his arguments from the Federalist, he indi­ constitutional theories attempt to draw out cates that for the Founders all governments normative implications from the rule of law shared the divine charge to advance the ideal, yet even these often ignore the effica­ welfare of their subjects (1987, 150). With cy of established procedures as a constitu­ this in mind, he locates the Federalist's tional curb on arbitrariness. treatment of the rule of law ideal in an George and Scarlett Graham, for exam­ interesting combination of end-oriented ple, note that the Founders simply assumed human reason and popular consent. He 58 PSA REVIEW mentions the concept's classical definition hopes that legal methods can successfully by observing that laws, as such, should direct society towards virtuous aims, West apply to large classes of people, not to runs into the precise problems of human individuals, and that they should be public nature addressed by the Founders. and reasonably stable (153). The Framers were aware of the inner A written constitution, he continues, contradiction of popular government: should by definition bind the officials who though the people are sovereign they are administer the government; it is alterable often inclined to choose badly, at least in the only by the people, and not by legislative short run. If a people lost their capacity for enactment (156). For West virtue they would become incapable of self­ government. West points out that the The rule of law, in sum, is a governmental practice Founders were sure that a virtueless society designed to make as likely as possible the coinci­ could not long remain free (see Federalist dence of the two requirements of just government: #63 and #55); but the Founders realized that that it be by the consent of the people, and that it secure the safety and happiness of society. The virtue could only be encouraged by judi­ law aims to embody the public's reason by requir­ ciouslyarranged institutions, not orchestrat­ ing ... reasoned discussion and a rule of universal ed by constitutional fiat. West seems to application (153-54). hold out the hope that unaided human reason can protect liberty. Sadly, it cannot. In at least one sense, West hints at the Another approach used to justify the rule argument offered in this paper. Requiring of law ideal implicit in the Constitution the public's reasoned discussion on a given stems from the assumptions of the Enlight­ decision seems analogous to my emphasis on enment: that a society arranged around procedural norms; and his Kantian rules of certain models tends to control the worst "universal application" do suggest the kinds excesses of human nature. This is probably of general, prospective, and equal standards the most popular explanation offered by discussed earlier. However, West hopes contemporary commentators. David F. that the rule of law can secure not only the Epstein defends this approach, taking as his "safety" of stability and order, but the hap­ starting point James Madison's contention in piness of the people as well--which mayor Federalist #57 that the object of any state's may not admit the kind of restrictions to constitution should be to recruit the wisest which they would readily consent. Balanc­ and most virtuous men as the rulers, and ing the two demands, consent and human then to structure the government institutions felicity, may actually make unreasonable in a way that will encourage the exercise of demands on fallible human reason. His their virtue while they hold temporary of­ argument has Aristotelian overtones in that fice. Citing the example of the U.S. Senate, it considers that the proper place of law is to he observes that the "constitution thus not serve as the embodiment of human reason, only grants powers, but also arranges offices instead of an admittedly imperfect substitute. so as to encourage those powers to be used In this sense, then, West seems to be more well" (1990, 93). optimistic about human nature and passions He avoids the difficulties lurking in a than were the authors of the Federalist, who teleological scheme by contending that the were clearly influenced by the philosophy of Founders were primarily concerned with David Hume (White 1987, 198). In his avoiding the evils of society, not with en- RULE OF LAW IDEAL 59 couraging the rational pursuit of aims ad­ carefully separated powers can be usurped judged socially worthy. Since rulers are and taken over by an ambitious branch or fallible mortals, they are likely to err, or individual (1990, 108). He sees the Found­ disagree, in their conceptions of the good. ers' solution to these weaknesses in the Therefore the Founders believed that future establishment of checks and balances which rulers only needed to know how to avoid the distribute powers among different branches, dangers of arbitrary government (Epstein making each branches less dependent on the 1990,94). Frequent elections, which would good will of the others. The presidential rotate the people's representatives in and out veto, a bicameral Congress, and the process of office, would guarantee that the rulers' of judicial review tend to compensate politi­ efforts always reflected the aspirations of the cally for any defect in the legal process people, and not their own personal ambi­ (110). tions (97). Thus "the Founders," he claims, Epstein's description of the failures of "looked not to a self-abnegating virtue to the rule of law falls into several common guarantee public-spirited intentions but to a errors. Initially, he doesn't see that the self-aggrandizing spirit that would provoke delegation of all constitutional powers, public-benefiting actions" (97). including the president's war-making power, Epstein correctly asserts that cons­ is itself subject to the legal process and is titutionalism, as a way of structuring gov­ actually constrained (albeit loosely) by legal ernment, places both written and unwritten and procedural barriers. His criticisms of restrictions on the ruling institutions (1990, the ideal seems to be based on the mistaken 107). A written constitution cannot forbid notion that incorporating the rule oflaw into everything that the state might illegitimately a system will lead to the best result in each attempt, nor can it define every right en­ situation. No system can guarantee that. joyed by the people or the degrees to which The rule of law only tends to protect the power may be abused; the people reserve freedom of individuals because its procedur­ certain unwritten limitations on the govern­ al requirements discourage the abuse of ment's powers (107). These unwritten power. Finally, there is nothing in the norms or standards are contained in, and system of checks and balances that mends part of, the rule of law ideal. Epstein de­ the defects of the legal process, unless he fines the rule of law as that which compels limits his defmition of that process to Con­ the governors to control the exercise of their gressional legislation. But that was not the own power. Finally, he notes that, con­ Founders' approach. Since it is a founda­ cretely, the rule of law requires prospective tion, the rule of law is compatible with the laws and a separation of powers. political conventions which shape our sys­ However, Epstein believes that the rule tem. of law ideal is an incomplete constitutional A final way of fitting the rule of law into foundation for the following three reasons. American constitutionalism involves the First, not all government activities are part moral requirements of a just society. Ellis of the legal process; for example, the presi­ Sandoz takes this approach and for him the dent has nearly unfettered power to conduct rule of law is synonymous with a free gov­ war. Secondly, enforcing rules that are ernment (1990, 117). A government dedi­ themselves unvirtuous does not promote cated to preserving liberty and pursuing the virtue among the populace. And third, even good of its citizens (instead of the good of 60 PSA REVIEW its rulers), is one that is built upon a moral The moral reasoning Sandoz emphasizes framework adequate to the task (117-18). is certainly not incompatible with the Fram­ He further notes that in Revolutionary ers' procedural standards, such reasoning is speeches, the call for justice is used inter­ actually an effective support for the rule of changeably with the call for the rule of (or law. But constitutional conventions, as by) law (201). Interestingly, he recognizes such, do not depend upon morality for their that for those of the Founding era laws strength nor are they grounded in moral universally entailed the people's common demands. Moral reasoning would be hard­ consent, publicity, and equality under the pressed to justify the necessity of such law (118-19). He then grounds the require­ entities as due process, the jury trial, the ments of the rule of law in the dictates of writ of habeas corpus, and the separation of morality, not in tradition or conventional powers. procedures (120). Additionally, although cons­ He views the Founders' efforts as "skill­ titutionalism's assumptions about individual fully calculated" to encourage the rule of liberty are supported by traditional moral divine reason in the affairs of men. Since and religious values, the fact that the U.S. the Founders were aware that the occasional Constitution (unlike the Declaration of ugliness of human nature could destroy even Independence) contains no outward manifes­ the best social arrangements, the separation tation of religious faith should indicate of powers and a system of checks and bal­ something. At the very least, it suggests ances neutralizes the problem of human that the Founders did not wish to stipulate ambition (41-42). truths about government along partisan lines of argument. At most, it implies that em­ The 'government of laws and not of men' ... is bodying traditional or religious values in the precisely an insistence that the tyranny of the very structures and functions of government passions (including those of the majority as well as those of the single tyrant) be averted by having is not quite what the Founders had in mind. 'God and reason alone rule' (39).

Sandoz sees the political theories of the The Limits of the Rule of Law Founders as profoundly influenced by their religious convictions. Indeed they were. Although the rule of law ideal formed the But his idea of a cultural consensus--a subtle basis for many of their conceptions about blend of classical political theory and protes­ political legitimacy and constitutional gov­ tant theology--misses the mark. The Found­ ernment, the colonists recognized that the ers firmly believed in traditional religious rule of law ideal couldn't guarantee their values, but they did not all share the convic­ freedom (Reid 1988, 81). An ideal is not tions of John Adams--which Sandoz often self-enforcing. The Founders were con­ equates with those of the entire group. The vinced that if a people lacked the necessary Founders' constitutional achievement was an respect for the laws or for their fellow ambitious attempt to reduce arbitrariness by citizens, then shielding individual freedom establishing procedural norms that would through a legal process amounts to a hollow, guarantee the stability, predictability, and theoretical barrier (Wood 1969, 42). If, responsibility of the new government. however, a nation shares certain fundamen­ tal beliefs about the purposes behind the RULE OF LAW IDEAL 61 limitation of governmental authority, cons­ in every free one" (Kurland and Lerner titutionalism does tend to protect individual 1987, 73). liberty because it places limits on the state's use of law and coercion, (Hayek 1960, 183; Hickman 1983, 379). Many of the Found­ Conclusions ers, echoing Montesquieu, even linked the freedom of a society to the moral fiber of its As heirs of a rich heritage of political phi­ people (Wood 1969, 35; Vetterli and Bryner losophy, the American Founders clearly 1987, 73). "A real community of shared understood the concepts which formed the virtue is, by the Founding Fathers' analysis, basis for the rule of law ideal. Even before ultimately essential if free government is to the Constitutional Convention, they were be supportable" (42). sure that the ancient concept should form the The Founders' views presupposed the basis of their structural and procedural existence of certain morals, traditions, and efforts. Although the Framers recognized practices, in both individuals and groups, the limitations of the rule of law, they at­ that would act as a restraint on any free tempted to institutionalize the notion in the association. If any society proved itself U.S. Constitution. Because they understood unable to exercise simple self-discipline, its that the rule of law entailed more than mere citizens were obviously incapable of self­ obedience to formal, procedural norms, they government and ripe for authoritarian domi­ were convinced that it would serve as the nation. Laws, and even the rule of law, most useful form of protection against the would reflect the character of a people. abuse of power by arbitrary government. While the Framers believed that rights were While the rule of law could not itself guar­ in the abstract real, they also recognized that antee society the benefits of individual rights had no protection outside of a soc­ liberty, they understood that certain proce­ iety's norms and conventions. This fact led dural standards, implied by the rule of law James Madison to the conclusion that "pub­ ideal, could promote the conditions that lic opinion [ultimately] sets the bounds to made liberty possible. every government, and is the real sovereign

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