Academic journal article Notre Dame Law Review

The Rule of Law as a Law of Law

Academic journal article Notre Dame Law Review

The Rule of Law as a Law of Law

Article excerpt

Justice Scalia is famous for his strong rule orientation, best articulated in his 1989 article, The Rule of Law as a Law of Rules. In this Article, we explore the extent to which that rule orientation in the context of constitutional interpretation is consistent with the Constitution's original meaning. We conclude that it is far less consistent with the Constitution than is generally recognized. The use of standards rather than rules is prescribed not only by a few provisions in the Bill of Rights and the Fourteenth Amendment but also by key aspects of the 1788 constitutional text. The executive power, the necessary and proper power, and indeed the entire scheme of enumerated powers are all infused with standards, largely through the Constitution's implicit incorporation of fiduciary norms as a background principle of interpretation. The Constitution often prescribes rules, but it often does not. The law is what it is, whether or not it conforms to some abstract jurisprudential norm. The rule of law is not a law of rules. It is a law of law.


In 1980, a law professor at the University of Chicago named Antonin Scalia advised the Supreme Court in the then-pending case of Industrial Union Department, AFL-CIO v. American Petroleum Institute (1) that, "even with all its Frankenstein-like warts, knobs, and (concededly) dangers, the unconstitutional delegation doctrine is worth hewing from the ice." (2) The chief danger of reviving the nondelegation doctrine feared by Professor Scalia was that, given "the difficulty of enunciating how much delegation is too much," (3) judicial enforcement of a nondelegation principle would be "an invitation to judicial policy making in the guise of constitutional law." (4) "But," countered Professor Scalia in response to his own concerns, "surely vague constitutional doctrines are not automatically unacceptable." (5)

In 1989, in Mistretta v. United States, (6) a Supreme Court Justice named Antonin Scalia faced a statute at least as empty and vacuous as the statute that Professor Antonin Scalia had urged the Court to invalidate on nondelegation grounds less than a decade earlier. The Sentencing Reform Act of 1984 charged the United States Sentencing Commission with devising legally binding sentencing ranges for federal offenses, (7) subject only to three broad goals, (8) four broad purposes, (9) seven incommensurable factors for determining offense categories, (10) and eleven incommensurable factors for determining offender characteristics. (11) It is hard to imagine a more open-ended grant of authority to an agency on so important a matter. Justice Scalia, without citing Professor Scalia, wrote:

   But while the doctrine of unconstitutional delegation is
   unquestionably a fundamental element of our constitutional system,
   it is not an element readily enforceable by the courts. Once it is
   conceded, as it must be, that no statute can be entirely precise,
   and that some judgments, even some judgments involving policy
   considerations, must be left to the officers executing the law and
   the judges applying it, the debate over unconstitutional delegation
   becomes a debate not over a point of principle but over a question
   of degree.... [I]t is small wonder that we have almost never felt
   qualified to second-guess Congress regarding the permissible degree
   of policy judgment that can be left to those executing or applying
   the law. (12)

While Justice Scalia dissented from the Court's judgment in Mistretta upholding the statute because the Sentencing Commission did not have even nominal executive authority to anchor its rulemaking power, (13) he made it clear that he "fully agree [d]" with the otherwise unanimous Court's "rejection of petitioner's contention that the doctrine of unconstitutional delegation of legislative authority has been violated because of the lack of intelligible, congressionally prescribed standards to guide the Commission. …

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