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 Follow this and additional works at: https://scholarsarchive.byu.edu/sigma Recommended Citation Moye, Robert (1991) "Founding a Republic of Laws: The Rule of Law Ideal in Early American Constitutional Theory," Sigma: Journal of Political and International Studies: Vol. 9 , Article 6. Available at: https://scholarsarchive.byu.edu/sigma/vol9/iss1/6 This Article is brought to you for free and open access by the Journals at BYU ScholarsArchive. It has been accepted for inclusion in Sigma: Journal of Political and International Studies by an authorized editor of BYU ScholarsArchive. For more information, please contact [email protected], [email protected]. , 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.