Abstract
American Constitutional Law would seem to be closely related to the principle of the rule of law, although it is not at first clear whether that is because our Constitution exemplifies the rule of law or, instead, its antithesis. Ordinary Americans would likely consider themselves as living under a rule of law regime, though some academics might dispute that claim. To most of us, the United States Constitution serves as an example of a rule of law, in what we believe is more generally our rule of law state. We seem to believe this even though our Constitution exemplifies the uniquely American notion of an indeterminate rule, as contrasted with the European paradigm of a very clear and circumscribed, positive law rule.
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Notes
- 1.
See, e.g., James R. Maxeiner, “Legal Indeterminacy Made in America: U.S. Legal Methods and the Rule of Law”, 41 Valparaiso University Law Review 517, 518–19 (2006)(quoting Professors Coleman and Leiter’s observation that “[o]nly ordinary citizens, some jurisprudes, and first-year law students have a working conception of law as determinate.”).
- 2.
I use here Maxeiner’s definition of the rule of law “in a formal sense.” See id. at 522. He describes this formal rule of law as requiring “that laws be: validly made and publicly promulgated, of general application, stable, clear in meaning and consistent, and ordinarily prospective.” (footnotes omitted). Maxeiner adds that such rules help law “fulfill an ordering function,” in allowing legal subjects to be guided by and act in compliance with law, while being protected from arbitrary lawmaking or law application. Id. The U.S. Constitution may essentially accomplish these goals, even while maintaining a certain degree of indeterminacy.
- 3.
See u.s. Const. art. VI, cl. 2 (Supremacy Clause); Reid v. Covert, 354 U.S. 1, 16 (1957) (“[N]o agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.”).
- 4.
See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it … . [Thus,] a legislative act contrary to the constitution is not law” and courts are not obliged to give it effect.).
- 5.
See id. (“[T]he legislature may not alter the constitution by an ordinary act.”).
- 6.
For one recent example, consider the majority versus dissenting opinions in District of Columbia v. Heller, 554 U.S.___ , 128 S.Ct. 2783, 171 L.Ed.2d 637, 76 USLW 4631 (2008), parsing the text of the Second Amendment and disagreeing markedly about its meaning.
- 7.
As an example, consider the nature of protection afforded by the Constitution for states’ rights in our federalist system. The Supreme Court first found that states were not immune from federal regulation enacted pursuant to Commerce Clause authority. See Maryland v. Wirtz, 392 U.S. 183 (1968). Eight years later, it found that states were immune with regard to their “integral operations in areas of traditional governmental functions.” National League of Cities v. Usery, 426 U.S. 833 (1976). But nine years afterward, it reversed itself again, finding that it was beyond the Court’s authority to police federal overreaching into state sovereignty in this regard. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). Nevertheless, seven years later, in New York v. United States, 505 U.S. 144 (1992), the Court once again struck down federal law on the ground that it interfered with state sovereignty. Accord Printz v. United States, 521 U.S. 898 (1997).
- 8.
See generally James R. Maxeiner, “Legal Certainty: A European Alternative to American Legal Indeterminacy?” 15 Tulane Journal of International & Comparative Law 541 (2007). “Legal certainty–not legal indeterminacy–is a guiding principle of European legal systems.” Id. at 543.
- 9.
Moreover, as a general population, we are fairly ignorant of what is even in our Constitution. See Eric Lane, America 101: How We Let Civic Education Slide-and Why We Need a Crash Course in the Constitution Today, Democracy Journal, Fall 2008, at 53, 54, http://www.democracyjournal.org/article.php?ID=6643.
- 10.
Much of the structure of government and the procedure for lawmaking is now also contained in ordinary law, see Ernest A. Young, “The Constitutive and Entrenchment Functions of Constitutions: A Research Agenda”, 10 University of Pennsylvania Journal of Constitutional Law 399, 403 (2008). Nevertheless, the outline for these structures and procedures, enshrined in our Constitution, established the basic plan that our Framers believed would produce all the rule of law-related benefits which in fact appear to have accrued.
- 11.
See, e.g., Bradford R. Clark, “Constitutional Compromise and the Supremacy Clause”, 83 Notre Dame Law Review 1421, 1424 (2008) (“Federal lawmaking procedures are designed to prevent any individual, group, or faction from becoming too powerful and capturing the legislative process.”).
- 12.
u.s. Const. art. I, Section 1 (legislative branch); id. at art. II, Section 1, cl. 1 (executive branch); id. at art. III, Section 1 (judicial branch).
- 13.
See Robin Charlow, “Judicial Review, Equal Protection and the Problem with Plebiscites”, 79 Cornell Law Review 527, 534–541 (1994) (describing the exceedingly “filtered” system of lawmaking extant under the United States Constitution and laws).
- 14.
See id.; The Federalist Nos. 9 (Alexander Hamilton), 10 (James Madison).
- 15.
The thesis that it is not the enshrining of rights in our Constitutional text that appears to result in our actual enjoyment of them, is the subject of a separate essay. Robin Charlow, Our Puzzling Constitutional Reverence (unpublished, incomplete article, on file with author). For a similar point, see Antonin Scalia, “Foreword: The Importance of Structure in Constitutional Interpretation”, 83 Notre Dame Law Review 1417, 1418 (2008) (noting that foreign constitutions guarantee rights that their countries’ citizens do not actually experience, and claiming instead that “[s]tructure is everything”–meaning that various structural features of the U.S. Constitution are what operate to safeguard liberty and provide security to the rights of the people).
- 16.
See, e.g., Will Putin Pull Medvedev’s Strings? (NPR Radio Broadcast May 7, 2008), available at http://www.npr.org/templates/story/story.php?storyID=90223700&sc-emaf; Russia’s Putin Clings to Power after Presidency Ends (NPR Radio Broadcast April 16, 2008), available at http://www.npr.org/templates/story/story.php?sstoryID=89676050 .
- 17.
See, e.g, Alexander Osipovich, Medvedev-Putin Duo Set to Buck a Trend, St. Petersburg Times, March 7, 2008, available at http://www.sptimesrussia.com/index.php?action_id=2&story_id=25236 (explaining that the Russian Constitution gives President Medvedev broad control over foreign affairs and national defense, but that Prime Minister Putin would apparently continue to exert much influence over foreign policy); Bridget Kendall, Will Power Shift from the Kremlin?, BBC News, May 5, 2008, available at http://news.bbc.co.uk/go/pr/fr/-/2/hi/europe/7273637.stm (observing that Putin wants to redefine the constitutional relationship between the president and prime minister, as evidenced by Putin’s attending the NATO summit (a foreign affairs presidential role) while Medvedev stayed home to address the domestic economy, and Putin’s statements conflating the president’s constitutional duties with the prime minister’s); See also, Putin Still Holds Power in Russia (NPR Radio Broadcast Aug. 13, 2008), available at http://www.npr.org/templates/story/story.php?storyId=93575223 (reporting that Putin remains in control of Russian foreign affairs, as demonstrated by his far more visible and vocal role in the Russia-Georgia conflict than that of his presidential successor, Medvedev).
- 18.
James Risen and Eric Lichtblau, “Bush Lets U.S. Spy on Callers Without Courts”, N.Y. Times.com, December 16, 2005, available at http://www.nytimes.com/2005/12/16/politics/16program.html?pagewanted=print (revealing news of the controversial surveillance by the National Security Agency); Dan Eggen, Bush Authorized Domestic Spying, Washington Post, December 16, 2005, at A1 (same); David E. Sanger, “Bush Says He Ordered Domestic Spying”, New York Times December 18, 2005 available at http://www.nytimes.com/2005/12/18/politics/18bush.html?scp=11&sq=President+Bush%2C+war+on+terror%2C+eavesdropping&st=nyt (detailing President Bush’s initial defense of the legality of the program).
- 19.
Jason Leopold, Five Year-old Report Warned White House Domestic Spying Unlawful, The Public Record, May 20, 2008, http://www.pubrecord.org/law/54-five-year-old-report-warned-white-house-domestic-spying-unlawful.html (describing the history of President Bush’s efforts to conduct the surveillance, indicia of illegality in the operation, and the backlash that followed it); Peter Baker and Charles Babington, Bush Addresses Uproar Over Spying, Washington Post, December 20, 2005, A1 (describing the uproar that followed the revelation); Timothy Casey, “Electronic Surveillance and the Right to Be Secure, 41 UC Davis Law Review 977, 980 (2008) (recounting lawsuits initiated based on the allegedly illegal surveillance); letter from Alberto R. Gonzales, Attorney Gen., U.S. Department of Justice, to Arlen Specter, Ranking Minority Member, Comm. on the Judiciary U.S. Senate and Patrick Leahy, Chairman, Comm. on the Judiciary U.S. Senate (Jan. 17, 2007) (on file with the New York Times) available at http://graphics8.nytimes.com/packages/pdf/politics/20060117gonzales_Letter.pdf (advising that, although continuing to defend the legality of the program, the Bush Administration would not attempt to reauthorize the surveillance and instead thereafter seek court approval for such activities under the Foreign Intelligence Surveillance Act).
- 20.
See Henry Monaghan, “Our Perfect Constitution”, 56 New York University Law Review. 353, 356 (1981) (“The practice of ‘constitution worship’ has been quite solidly ingrained in our political culture from the beginning of our constitutional history.”).
- 21.
u.s. Const. amend. XIV, Section 1, c. 2.
- 22.
Id.; u.s. Const. amend. V.
- 23.
See Lane, supra note 9, at 54.
- 24.
See, e.g., Monaghan, supra note 21, at 358 (asserting that numerous legal academics find our Constitution “perfect” in the sense that it guarantees whatever set of rights each of them believes a modern Western liberal democracy ought to guarantee to its citizens).
- 25.
See Bruce Ackerman, We the People: Foundations 34 (1991) (contrasting American and modern European experiences in this regard).
- 26.
See, e.g., id. at 34–57, 315–316 (advancing the thesis of constitutional change through a form of popular acceptance of non-Article V amendment).
- 27.
u.s. Const. art. V (governing the amendment process).
Acknowledgment
Thanks to Meggan Johnson for her superb assistance with research, and to the Hofstra University School of Law for its research support and participation in EACLE.
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Charlow, R. (2010). America's Constitutional Rule of Law: Structure and Symbol. In: Sellers, M., Tomaszewski, T. (eds) The Rule of Law in Comparative Perspective. Ius Gentium: Comparative Perspectives on Law and Justice, vol 3. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-3749-7_7
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