The Home of American Intellectual Conservatism — First Principles

September 19, 2014

FEATURE ARTICLES
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What Is the “Rule of Law”?
David W. Skubik - 08/03/10
Montesquieu

We often hear the phrase “the rule of law.” But what exactly does it mean, and why is it important in a free society? David W. Skubik offers helpful insights in this essay.

An important catchphrase of modern conservative leaders and thinkers, the “rule of law” captures what conservatives see as the need to return to past assumptions about government.

One commonly held view of the meaning of “the rule of law” is that governments ought to be so structured that citizens perceive society as grounded on the impartial application and enforcement of agreed norms of behavior rather than on the whims or prejudices of political leaders. In most contexts that mention the rule of law, the implied if not explicit contrasting phrase is “and not of men.” As outlined in Montesquieu’s seminal The Spirit of the Laws (1748), influential in the thought of the founders of the American Republic, there should exist a certain balance of power between the various branches of government so that no partisan can disturb the overall structure. This arrangement allows citizens to trust in the fair administration of the laws. Constructing and maintaining this balance are themes in James Madison’s famous Federalist 10 (1787), which urges ratification of the new Constitution because it will serve as a crucial tool for ameliorating the activities of factions (i.e., political parties and special interest groups) in American political life.

This practical political result requires more than customary observance of the usual technical legalisms—that is, that no act should be designated a crime and no punishment meted out, without law. As important as these legalisms might be, the overall structure of government must be so framed as to inspire and protect the confidence of the people. This requires a written constitution as the fundamental formulation of governmental authority. In Thomas Jefferson’s words, “In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.” The judiciary, then, whose power it is to interpret the law and the Constitution itself, is central to understanding the rule of law in American life.

Bork

Contemporary debate about what the rule of law requires frequently hinges on competing philosophies of jurisprudence concerning the role that the Supreme Court properly should play in American life and the freedom of the Court to interpret and apply a “living” Constitution to the alleged necessities of contemporary life. Prominent in this debate during the 1980s were conservatives such as Edwin Meese III, U.S. attorney general under Ronald Reagan, and Robert Bork, judge of the Federal District Court of Appeals for the District of Columbia (retired) and failed 1987 nominee for the Supreme Court. In fact, what turned this continuing and normally dry academic debate into a popular concern were the televised hearings held by the Senate Judiciary Committee on Bork’s nomination to the Supreme Court and the abuse heaped upon Bork for his originalist jurisprudence. Bork maintained that cases coming before the Court should be decided from the language of the Constitution according to the meaning intended by its originators. Formulated in various ways and tagged with a variety of labels (e.g., strict construction, original intent, judicial restraint, interpretivism), this conservative theory opposes the view that the Supreme Court may properly make rather than interpret the law of the land.

To illustrate, the Supreme Court justices’ opinions in the well-known case of Griswold v. Connecticut (1965) indicate that there is a “right of privacy” in the U.S. Constitution that protects a married couple’s decision to use contraceptives. The couple’s decision as to whether to use contraceptives was said to be beyond the legitimate control of the state, irrespective of the state’s typically justifiable power to manage the health and welfare of its residents, and the rational-policy counterclaims that supported Connecticut’s prohibition. The constitutional and thus rule-of-law difficulty was that while seven justices agreed that Connecticut’s statutory prohibition could not be allowed to stand, they could not agree exactly as to why it should be struck down, nor quite where the constitutional right to privacy was to be found in the Constitution’s text. Justice Douglas found this right in “penumbras” of the guarantees in the Bill of Rights, which are “formed by emanations from those guarantees” in the First, Third, Fourth, and Fifth Amendments; Justice Goldberg, in a separate concurring opinion joined by Chief Justice Warren and Justice Brennan, emphasized the Ninth Amendment; while Justices Harlan and White found reason for overturning the prohibition in the liberty afforded persons under due process, not privacy. None of these four separate opinions commanded a majority of the Court, a point emphasized by the two dissenters (Justices Black and Stewart) in their opinions, which vigorously argued that the Court had no constitutional mandate to overturn this “silly” law and could not do so without simultaneously doing grave damage to the language of the Constitution. This was the “slippery slope” to Roe v. Wade (1973), where the Court held that the right to privacy covers the woman’s individual, not familial, right to an abortion.

Such cases are explosive not only because of their sexual subject matter: other cases (e.g., involving prayers in public schools, crèches on government property, affirmative action programs, criminal defendants’ rights) illustrate the same sort of illegitimate rights creation. And because this explosion of judicially created rights is arguably nowhere to be found in the text or history of the Constitution and its amendments, it is utterly opposed by conservatives who take such “activism” as inimical to the democratic balance struck by the founders in the eighteenth century, a balance seen to be essential to the continued legitimacy and vitality of the Republic. Special rights—for example, those enabling a woman to abort a child without so much as informing her husband—undermine the equality before the law that allows for the rule of law and not of men.

Further Reading
  • Bork, Robert H. The Tempting of America: The Political Seduction of the Law. New York: Free Press, 1990.
  • Hayek, Friedrich A. von. The Rule of Law. Menlo Park, Calif.: Institute for Humane Studies, 1975.
  • Nieman, Donald G. The Constitution, Law and American Life: Critical Aspects of the Nineteenth-Century Experience. Athens, Ga.: University of Georgia Press, 1992.
  • Shapiro, Ian, ed. The Rule of Law. New York: New York University Press, 1994.

This essay was originally published in American Conservatism: An Encyclopedia (ISI Books, 2006).

To learn more about the Constitution and its division of powers, visit the ISI short course on The American Experience.

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