Abstract
Both rule of law and legal state notions developed with the shared goal of promoting peace and freedom by checking excessive concentrations and arbitrary applications of power. Originally both embodied formal requirements for law making and application, to ensure that laws were public, fixed, durable, and uniformly applied. More recently, however, those describing the legal state, and somewhat less universally those advocating for rule of law, seem to have taken these notions in a substantive direction, arguing that compliance requires states to guarantee particular substantive human rights as well. If this substantive concept comes to be accepted as a required aspect of the rule of law, the broadly flexible characteristics of American constitutional interpretation could, perhaps oddly, work against continued American adherence to the rule of law. This is increasingly likely to be the case as the United States deals with the stresses to its safety and security that undoubtedly will arise as it faces the challenges of the twenty-first century.
With thanks to Tianlong You for his exceptionally dedicated research assistance.
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- 1.
See Mark Ellis, “Toward a Common Ground Definition of the Rule of Law Incorporating Substantive Principles of Justice”, 72 University of Pittsburg Law Review (2010) 193 n.11 (citing Albert Venn Dicey, An Introduction to the Study of the Law and the Constitution (1885)); Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge Univ. Press, 2004) at 7, 15, 63.
- 2.
Ellis, supra note 1, at 193; Tamanaha, supra note 1, at 63–64 (discussing Dicey’s three rule of law requirements: pre-existing laws, equality of application, and judicial enforcement); Brenner M. Fissell, “Jury Nullification and the Rule of Law”, draft manuscript at 5 (forthcoming in Legal Theory) (citing Lon Fuller, The Morality of Law (Yale Univ. Press, 1969) at 38–39, and Matthew Kramer, Objectivity and the Rule of Law (Cambridge Univ. Press, 2007) at 104).
- 3.
Ellis, supra note 1 at 194 n.17 (citing Joseph Raz, “The Rule of Law and its Virtue”, 93 Law Quarterly Review (1977) 195, 196); Fissell, supra note 2 at 9–10 (discussing the author’s views and citing Joseph Raz, The Authority of Law (Oxford Univ. Press, 1979)).
- 4.
See, for example, Kenneth E. Himma, “What Exactly is the Problem with Judicial Supremacy? The Rule of Law, Moral Legitimacy, and the Construction of Constitutional Law”, in Courts, Interpretation, the Rule of Law—Democracy and the Rule of Law, Miodrag A. Jovanović and Kenneth E. Himma eds. (Eleven International Publishing, forthcoming 2013), draft manuscript at 10, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2288165 (discussing H.L.A. Hart’s observation that a strictly formal set of rule of law standards is “compatible with the enactment and enforcement of morally wicked laws”).
- 5.
Id. at 9 & n.6 (citing Ronald Dworkin, Law’s Empire (Harvard Univ. Press, 1986)).
- 6.
See Ellis, supra note 1, at 197; Fissell, supra note 2, at 6–8 (discussing the work of various American academics).
- 7.
See e.g., Ellis, supra note 1, at 194–199; Brian Bix, “Radbruch’s Formula, Conceptual Analysis, and the Rule of Law”, in Law, Liberty, and the Rule of Law, 18 Ius Gentium: Comparative Perspectives on Law and Justice, Imer B. Flores & Kenneth E. Himma eds. (Springer, 2013) at 68–69 (“A small number of theorists advocate more substantive conceptions of the rule of law [which] tend to include requirements of democracy and the protection of certain basic human rights”); Gülriz Uygur, “The Rule of Law: Is the Line Between the Formal and the Moral Blurred?”, in Law, Liberty, and the Rule of Law, 18 Ius Gentium: Comparative Perspectives on Law and Justice, Imer B. Flores & Kenneth E. Himma eds. (Springer, 2013) at 118 (“the rule of law has a moral minimum”). Contra Himma, supra note 4 (rejecting the addition of substantive rights to the notion of rule of law); Fissell, supra note 2 (renouncing the idea that rule of law contains any substantive dimension).
- 8.
See Iain Stewart, “From ‘Rule of Law’ to ‘Legal State’: A Time of Reincarnation?” in Rule of Law: Transformative Approaches, K. Padmaja ed. (Icfai Univ. Press, 2008) at 6.
- 9.
Id. at 7 (noting that the term “Rechtsstaat … seems to have found ready translation into every major European language except English”).
- 10.
Id.; Ellis, supra note 1, at 193 n.11. Others attribute the term to early nineteenth century Hanoverian jurists, influenced by the British, who wished similarly to move from autocratic monarchic rule toward classical liberalism. See Hans-Joachim Lauth & Jenniver Sehring, “Putting Deficient Rechtsstaat on the Research Agenda: Reflections on Diminished Subtypes”, 8 Comparative Sociology (2009) 165, 172–74.
- 11.
Stewart, supra note 8, at 7.
- 12.
Id.
- 13.
Id. at 8. In its preference for codified law over individual statutes, the legal state puts a premium on rationality and regularity, as codifications tend to be less haphazard, more considered bodies of legislation than individual statutes, which might arise in response, for example, to the vagaries of compelling current events.
- 14.
Matthias Koetter, “Rechtsstaat and Rechtsstaatlichkeit in Germany”, in Understandings of the Rule of Law: Germany, Wikis der Freien Universität, (Feb. 28, 2013), available at http://wikis.fu-berlin.de/display/SBprojectro/Germany
- 15.
Id.
- 16.
In 1928, Hans Kelsen affirmed that the state was “nothing but Rechtstaat in a formal sense of the term.” Id. (citing Kelsen’s “Pure Theory of Law”(“Reine Rechtslehre”)).
- 17.
Koetter, supra note 14.
- 18.
See Ronald Brand, “Promoting the Rule of Law: Cooperation and Competition in the EU-US Relationship”, 72 University of Pittsburgh Law Review (2010) 163, 164 (“Europeans [attempting to define the rule of law at a recent conference] are much more ready to focus on substantive rights as necessary to the rule of law.”); Augusto Zimmermann, “Rule of Law as a Culture of Legality: Legal and Extra-legal Elements for the Realisation of the Rule of Law in Society”, 14 Murdoch University Electronic Journal of Law (2007)10, 12 n.13 (quoting Ernst Böckenförde, to the effect that Rechsstaat “means primarily recognition of the fundamental civil rights,” including such civil liberties as the freedoms of belief, conscience, the press, movement, contract, and occupation, as well as equality before the law and protection of property). Perhaps this was an easier step to take in the case of legal state, as opposed to rule of law, since the term Rechtsstaat itself originally derived from Petersen’s privileging of those political units based on human rights.
- 19.
See Stewart, supra note 8, at 8–12.
- 20.
I d. As Kenneth Himma explains, the common law courts’ development of governing legal principles operates only at the discretion of the legislature, and their authority in this regard can be revoked at any time by the legislature. Himma, supra note 4, at 20.
- 21.
See, e.g., National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566, 2579 (2012) (“Members of this [the United States Supreme] Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders.… It is not our job to protect the people from the consequences of their political choices.”).
- 22.
See Ellis, supra note 1, at 202–207 (discussing certain fundamental “non-derogable” rights, including the right to a fair trial; the right to freedom of thought, conscience and religion; and others).
- 23.
Koetter, supra note 14. Mark Ellis suggests that, in the rule of law context, there may be both derogable and non-derogable rights, the latter category containing those that fall within the international consensus of jus cogens norms. Ellis, supra note 1, at 200–201.
- 24.
See Augusto Zimmermann, “The Politics of Lawlessness in Brazil: How Brazilian Politics Overrides the Rule of Law”, 15 Murdoch University Electronic Journal of Law (2008) 3 (providing an excellent detailed example of the reasons for Brazil’s failure to achieve a rule of law state).
- 25.
Robin Charlow, “America’s Constitutional Rule of Law: Structure and Symbol”, in The Rule of Law in Comparative Perspective, 3 Ius Gentium: Comparative Perspectives on Law and Justice, Mortimer Sellers and Tadeusz Tomaszewski eds. (Springer, 2010) at 93–96 (illustrating this thesis by comparing the different public reactions to contemporary examples of executive excesses in the United States and Russia).
- 26.
Id. at 95–96.
- 27.
See Zimmermann, supra note 18, at 24 n. 82 (2007) (quoting John Stuart Mill, Considerations on Representative Government (1861, William Benton edition 1952) at 31 (opining that the achievement of the rule of law is “determined by social circumstances”)); id. at 25 n. 86 (2007) (quoting Martin Krygier expounding on his thesis that the rule of law “depends as much on characteristics of society as of the law, and on their interactions”).
- 28.
See id. at 25 n.88 (noting Krygier’s observation that the rule of law is not simply a matter of “detailed institutional design” but also of an “interconnected cluster of values” that may be pursued through different institutional channels).
- 29.
See generally Charlow, supra note 25.
- 30.
Id. at 95.
- 31.
See id. at 98. Accord Himma, supra note 4, at 24 (pointing particularly to the interpretations of constitutionality by the United States Supreme Court).
- 32.
See Charlow, supra note 25, at 93.
- 33.
See Josh Levs, “‘Nail in Coffin’ for Arab Spring? Experts predict Egypt’s Future”, CNN, July 10, 2013, available at http://www.cnn.com/2013/07/10/world/meast/egypt-whats-next (describing a number of daunting obstacles to rule of law in Egypt following that country’s early role in the democratic revolutions that recently took hold in many Arab nations).
- 34.
For example, Bruce Ackerman, among others, argues that the inaccurate nomenclature for and continuing nature of the “war on terror” work to regularize the state of emergency it presents and to inure us to the eventual erosion of our liberty that it occasions. Bruce Ackerman, Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism (Yale Univ. Press, 2006) at 13–15.
- 35.
Glenn Greenwald, “NSA Collecting Phone Records of Millions of Verizon Customers Daily”, The Guardian, June 5, 2013, available at http://www.guardian.co.uk/world/2013/jun/06/nsa-phone-records-verizon-court-order
- 36.
See U.S. Constitution Amendment IV (“The right of the people to be secure in their persons … and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, … and particularly describing the place to be searched, and the persons or things to be seized.”).
- 37.
Gary Langer, “Most Back NSA Surveillance Efforts—But Also Seek Congressional Hearings”, ABC News, June 19, 2013, available at http://abcnews.go.com/blogs/politics/2013/06/most-back-nsa-surveillance-efforts-but-also-seek-congressional-hearings/. Department of Defense Appropriations Act, 2014, H.R. 2397, H.Amdt. 413, 113th Cong. (2013), available at http://amendments-rules.house.gov/amendments/AMASH_018_xml2718131717181718.pdf (proposed amendment to require limiting Foreign Intelligence Surveillance Court warrants so as to bar the collection of metadata); 159 Cong. Rec. H5002, H5028-29 (daily ed. July 24, 2013) (reporting that the amendment was rejected by a vote of 217 to 205), available at http://beta.congress.gov/crec/2013/07/24/CREC-2013-07-24-pt1-PgH5002.pdf
- 38.
See Roe v. Wade, 410 U.S. 113 (1973) (deciding that the right to choose to have an abortion is part of a right of personal privacy contained in the Fourteenth Amendment’s express right to “due process of law”); United States v. Windsor, 133 S.Ct. 2675 (2013) (invalidating a law that barred federal recognition of same-sex marriages which were valid according to state law because it violated the Fifth Amendment Due Process Clause’s implied equal protection principle).
- 39.
See U.S. Constitution Amendment I (emphasis added).
- 40.
See Giboney v. Empire Storage & Ice Company, 336 U.S. 490, 498 (1949) (rejecting the contention that “the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.”).
- 41.
18 U.S.C. § 871 (making it a felony to threaten a United States President).
- 42.
Osborne v. Ohio, 495 U.S. 103 (1990) (ruling that states may outlaw the possession of child pornography even though pornography may be a form of constitutionally protected speech).
- 43.
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (holding that states may enforce legal remedies for much defamation that injures private individuals).
- 44.
Central Hudson Gas and Electric Corporation. v. Public Service Commission, 447 U.S. 557 (1980) (setting forth an intermediate level of scrutiny standard for review of laws and policies that restrict commercial speech).
- 45.
Connick v. Myers, 461 U.S. 138, 146 (1983) (“When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.”).
- 46.
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (holding that “fighting words,” such as tend to incite an immediate breach of the peace, are not protected by the First Amendment).
- 47.
Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726, 748 (1978) (“Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder.”).
- 48.
See Scott J. Shackelford, “From Nuclear War to Net War: Analogizing Cyber Attacks in International Law”, 27 Berkeley Journal of International Law (2009) 193.
- 49.
See Vicki Arroyo, “Preparing for Future Disasters in the Wake of Sandy”, The Huffington Post, Nov. 14, 2012, available at http://www.huffiingtonpost.com/vick-arroyo/climate-change-preparation_b_2132066.html
- 50.
“No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war but in a manner to be prescribed by law.” U.S. Constitution Amendment III.
- 51.
Cf. Peter Berkowitz, “‘We Went into the Mall and Began “Looting”’: A Letter on Race, Class, and Surviving the Hurricane”, The Monthly Review, Sept. 5, 2005, available at http://mrzine.monthlyreview.org/2005/berkowitz090905.html (describing the intense ordeal of trying to survive in the wake of Hurricane Katrina in New Orleans, Louisiana).
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Charlow, R. (2014). American Constitutional Analysis and a Substantive Understanding of the Rule of Law. In: Silkenat, J., Hickey Jr., J., Barenboim, P. (eds) The Legal Doctrines of the Rule of Law and the Legal State (Rechtsstaat). Ius Gentium: Comparative Perspectives on Law and Justice, vol 38. Springer, Cham. https://doi.org/10.1007/978-3-319-05585-5_16
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