Abstract
The concept of the rule of law and the ideals expressing its content are deeply contested. Theorists distinguish two broad conceptions: procedural rule of law and substantive rule of law. The former focuses largely on the procedures by which law is enacted and applied while the latter focuses on the content of the law. One might argue that both conceptions are somehow part of the very concept of law, but this much is clear: whether internal to law or not, the standards comprising the rule of law, procedural and substantive, are also standards of political legitimacy. This chapter analysis those elements of the U.S. rule of recognition dealing with constitutional interpretation and judicial supremacy in order to evaluate them under procedural rule of law standards; as these elements are increasingly common among other legal systems, the conclusions drawn here will be applicable to these other legal systems. But while judicial supremacy seems to violate procedural rule of law standards, which are also standards of political legitimacy, it does not follow that judicial supremacy is politically illegitimate. The analysis here is concerned with just one element that contributes to political legitimacy; no assumption is made, though, satisfaction of procedural rule of law standards is a necessary condition of legitimacy.
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Notes
- 1.
118 U.S. 425 (1886). For a defence of this view, vid. Alexander and Schauer (1997). For its part, the Court has not always adhered to this view. Vid. U.S. v. U.S. Coin and Currency, 401 U.S. 715 (1971), 741.
- 2.
Kramer argues that the Supreme Court has usurped final authority, which should be taken back by the people. In any event, the descriptive claim, grounded in a comprehensive historical analysis, confirms that the official practice today confers final authority over the Constitution to the Supreme Court; the normative claim is that this is illegitimate. But the normative issue is not relevant for a positivist analysis of the content of the rule of recognition – although it is undeniably important.
- 3.
Hodgson v. Minnesota, 497 U.S. 417 (1990), 480 (dissenting).
- 4.
So far I have focused on Supreme Court declarations that a law is unconstitutional; however, additional issues are raised by Court declarations that a law is constitutional. But it is important to be careful here. Just as a Court decision that one of the Justices believes mistaken does not preclude that Justice from dissenting the next time the issue comes up or require the Justice to change his or her vote, so too it does not require any official to enforce a law that he or she believes, contra the Supreme Court ruling, is unconstitutional. While as Frank Easterbrook points out, there is a longstanding practice among presidents to refuse to enforce statutes that they believe to be unconstitutional, there might very well be a practice among officials, including presidents, not to enforce statutes they believe the Court has mistakenly declared to be constitutional. On this vid. Easterbrook (1989–1990) and Paulsen (1994, 267 et seq.).
- 5.
Arizona v. Evans, 514 U.S. 1 (1995), 8–9.
- 6.
Of course, many theorists believe that, as a matter of political morality, the Court ought not to have this authority. Vid. v.gr. Waldron (1999).
- 7.
Here it is important to remember that the notion of legitimacy is a moral notion that is concerned with the extent to which the state is morally justified in using its coercive force.
- 8.
505 U.S. 833.
- 9.
505 U.S. 866.
- 10.
505 U.S. 999.
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Himma, K.E. (2013). The Rule of Law, Validity Criteria, and Judicial Supremacy. In: Flores, I., Himma, K. (eds) Law, Liberty, and the Rule of Law. Ius Gentium: Comparative Perspectives on Law and Justice, vol 18. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4743-2_10
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