The Historical Origins of the Rule of Law in the American Constitutional Order

Article excerpt

My topic in this essay is the historical foundations of the role of law in the American constitutional order. Where did the uniquely American commitment to the rule of law come from as an historical matter, and how can we copy it for export to countries like Russia, Afghanistan, or Iraq? This is an enormous subject, which I can only hope to outline in the brief space I have below. I want to begin by discussing the nature of the rule of law and by explaining why it is difficult to speak of an origin of the idea of "the rule of law." I will then discuss some of the many antecedent events and cultural patterns which I believe led the Framers to seek to preserve the rule of law through our written Constitution. Finally, I will conclude by discussing some of the many strategies the Framers incorporated into the Constitution to ensure that that document would secure the rule of law.

First, let us consider the nature of the rule of law. My thesis is that the rule of law is a culture- or tradition-based norm whereby members of a society come to organize their personal behavior and the behavior of their government officials so that it is law-abiding or law. respecting. (1) A culture which favors the rule of law is one in which millions of individuals choose to behave in such a way that their behavior is governed by law. There are many cultures around the world and not all of them place a premium on people behaving in a way that is law-abiding. In some cultures, people don't abide by the tax laws or the laws against corruption or even some of the criminal laws. In my ancestral homeland of Italy, for example, it is commonly said that there is less of a culture of obeying the tax laws than there is in the United States. Similarly, in Russia, or in parts of Eastern Europe, or in Latin America, norms against governmental corruption may not be as widely followed as they are in the United States. The key point is that the rule of law is a culture or tradition of behaving in a certain way, not a doctrine that can be legislated. Thus when Communism fell in Eastern Europe, one could not simply order that henceforth the rule of law would be followed. It was necessary instead to persuade millions of individual governmental and nongovernmental actors to behave in a way that was law-abiding. (2)

One way of better explaining the nature of the rule of law (3) is to analyze it using the framework of Friedrich Hayek, who argued that there are two major and distinct forms of social organization in the world: spontaneous systems of order and planned systems of order. (4) A spontaneous system of order is one that grows up unplanned through the voluntary cooperation of millions of people. (5) Classic examples of spontaneous systems of order are languages, the common law and the free market. No central planner ever set out to plan a language or a system of common law or a free market, yet those systems spontaneously arose because of the undirected actions of millions of individuals. In contrast, a planned system of order is one where a central planner directs and implements a particular plan. (6) Generals, corporate CEOs, heads of families, and government bureaucrats may all preside over planned systems of order. While planned systems of order are a critically important form of social organization, the most complex, information-rich forms of social order are those which are spontaneous systems of order.

The rule of law is, in my view, a spontaneous system of order like a language. (7) It cannot be planned or ordered into existence. It has to spring up as a culture from the independent actions and convictions of millions of people acting together in a certain way. There is thus no single historical origin (or originator) of the ideal of the rule of law that underlies the U.S. Constitution. Rather, our Constitution arose out of a longstanding culture or tradition that deeply respected the rule of law. Our Constitution, in turn, reinforced and greatly strengthened that tradition and caused that tradition to be passed on to us two centuries after its framing. …