"Means as Ends"

Syllabus | Introduction | Unit I | Unit II | Unit III 

UNIT 2: THE RULE OF LAW AND MODERN CONSTITUTIONALISM

The Rule of Law

Well-designed procedures, processes, and institutions serve many specific purposes in politics, but an overarching purpose they serve is to promote and preserve the rule of law. The notion of the rule of law suggests an absence of arbitrary government, and the absence of arbitrary government implies that government does not consist primarily of discretionary acts by a single man or group of men. Rather, the rule of law suggests that governmental power is limited and that there exist established rules and procedures whereby laws are made and enforced. The notion of the rule of law also encompasses the ideas that no citizen or magistrate is above the law and that the law applies equally to everyone. While the rule of law might serve other ends as well, it is a necessary condition for individuals to feel secure in their persons and property.

It is no easy task to establish and maintain the rule of law. A significant degree of institutional complexity is required, and these institutions, taken together, must produce what John Locke calls "standing rules" to live by. Lon L. Fuller's classic allegory of King Rex's failed attempts at legal reform illustrates the long list of formal criteria (eight, in Fuller's estimation) that must be met before it can be said that one has a society in which law rules. According to Fuller, there must first of all be (1) rules, and these rules must be (2) promulgated; (3) prospective, rather than retrospective; (4) intelligible; (5) internally consistent; (6) stable enough to serve as useful guides to conduct; (7) within the reach of the "affected party['s]" powers and capacities; and (8) congruent with their actual application. While the general circumstances and particular institutions that could support the rule of law might vary, the lesson of King Rex is that it is much easier to fail than to succeed in establishing and maintaining the rule of law.

Unlike the hapless King Rex, not every political actor or political theorist prioritizes the rule of law. Some explicitly question or downgrade the importance of the rule of law relative to other ends, while others simply pursue ends that are at odds with it. In this latter category, we consider three distinct forms of political absolutism: Hobbesian absolutism, the divine right of kings, and modern totalitarianism.

Plato is well known for entertaining the proposition that law is "second best" as a form of rule. He toys with the idea that the ideal form of rule would be that of a ruler or rulers possessed of perfect wisdom and "expert knowledge." By comparison, law appears to be a blunt instrument, prescribing general rules that apply to most people most of the time. Philosophical expertise, on the other hand, would consider each case in its individuality. The possible tension between the rule of wisdom and the rule of law is one of the great themes of the Platonic corpus, which tends as a whole to suggest that the best actual regimes will feature a combination of the two.

For Thomas Hobbes, the preservation the individual and of the community is of primary importance, and while he speaks much of law, he is not, in the end, a proponent of the rule of law. Hobbes understands laws to be rules that distinguish between the just and the unjust, between right and wrong. However, in his view, civil laws are not standing laws—they depend solely upon the will and discretion of one man or body, the sovereign. The sovereign is not bound by the laws it creates and may change these laws at any time. Hobbes maintains that the sovereign must be powerful enough and the sovereign authority flexible enough to establish order and remove mankind from its natural condition, which is a state of war. This association between political stability and lawlessness leads Locke to protest that "absolute monarchs are but men" and to wonder whether a government in which "one man, commanding a multitude, has the liberty to be judge in his own case, and may do to all his subjects whatever he pleases" could be much better than the state of nature.

Hobbes's project is, at bottom, a secular one, but one can of course defend political absolutism on religious grounds. A prime example of this is the theory of the divine right of kings. In its strongest formulations, such as those advanced by Jacques Bénigne Bossuet, who delivered sermons before Louis XIV, the person of the king is considered "sacred" and identical to the state, the "royal power...absolute," and the king unaccountable to anyone save God for his actions. Bossuet claims that the king's earthly power should be moderated by his knowledge of the divine source of his authority, knowledge which should lead him to humility. Rulers should recall that "their power comes from on high" and "should not regard themselves as masters of that power to use it at their pleasure;...they must employ it with fear and self restraint, as a thing coming from God and of which God will demand an account." This call for humility and restraint notwithstanding, Bossuet, like Hobbes, recognizes no temporal limitations on the ruler's authority.

Hannah Arendt articulates what is distinctive about modern totalitarian regimes, which are often confused with traditional tyrannies. In traditional tyrannies, there is by definition no rule of law, for the ruler governs in accordance with his own desires and caprices. While totalitarian regimes are not characterized by the rule of law in the traditional sense, what transpires in such regimes is neither arbitrary nor without reference to a "law." Totalitarian regimes seek to actualize through terror what they understand to be a law of history (e.g., communism) or nature (e.g., racism). Hence, such regimes can be cruel, but what they do is often actuated by a kind of logic, i.e., it is not necessarily arbitrary. This logic is "ideological" in that it interprets history and reality through the lens of a single dominant idea. Though distinct from traditional tyranny, the totalitarian state of course has more in common with it than it does with a lawful government.

Many political alternatives to the rule of law are actuated by a single principle or a limited number of principles (e.g., the supreme importance of wisdom, the will of God, or the logic of the historical process), but attempts at securing the rule of law generally assume that individuals are diverse and the common good complex and elusive. Securing the rule of law will thus be a complex endeavor achievement of which will involve relying on a great variety of means. While the means will vary according to the circumstances, we will examine a number of the mechanisms, institutions, processes, and ideas that have made the rule of law possible in the Anglo-American tradition.

Constitutions: Written and Unwritten

A written constitution is one of the more comprehensive instruments that has been devised to prevent arbitrary government and promote the rule of law. Generally speaking, a constitution is the form of government of a society, or '"the mode in which a state is constituted or organized...the arrangements of its parts or elements, as determining its nature and character."' While not providing an exhaustive account of a society's constitution or form of government, a written constitution is a single document that seeks to establish the basic structure of a society's government, delineate the principal powers and responsibilities of that government, and identify the basic rights and liberties of citizens. The purpose of such an instrument is to protect liberty and avoid arbitrariness in government by specifying in advance what government is authorized to do and what it is prohibited from doing. A written constitution serves as a form of higher law that is superior to ordinary legislation, which must be made pursuant to the constitution.

Unwritten or "uncodified" constitutions do not rely on a single written document to indicate a nation's constitutional fundamentals. Rather, unwritten constitutions are composed of many elements. For example, the world's best-known unwritten constitution—the British constitution—is composed of various judicial decisions, a collection of written documents—including the Magna Carta and the Bill of Rights—and the idea of parliamentary supremacy.

Unlike the U.S. Constitution, which in theory limits what Congress can do, in Britain there is no fundamental law of the land that is superior to an ordinary act of Parliament. Ordinary legislation is part of the constitution; this is the effectual truth of parliamentary supremacy. This feature of the British constitution closes the gap between constitutional principles and government action that can exist in nations governed by a written constitution. Depending on the circumstances, this might be better or worse for individual rights and liberties.

In his analysis of the British constitution, A.V. Dicey argues that identifying ordinary legislation with the constitution provides greater security for individual rights, which have become part of the ordinary law of the land only after a protracted struggle and are unlikely to disappear all at once. However, others have noted that without the constraining presence of a functioning written constitution, nothing prevents a society governed by an unwritten constitution from changing quite rapidly, possibly in ways that undermine longstanding rights and privileges. On the other hand, the well-intended provisions of a written constitution are of little practical benefit if they are not consistently enforced by the ordinary processes of government, which is easier said than done.

Judicial Review and Its Critics

Well-known proponents of written constitutions have argued that support for the idea of a written constitution—the purpose of which is to establish a fundamental law that limits government power—implies support for a fairly "strong" version of judicial review. In the American context, judicial review is the doctrine that the federal courts have a right to review and declare unconstitutional actions taken by other branches of the national government and by the states. While the "canonical defense" of judicial review—John Marshall's opinion in Marbury v. Madison (1803)—speaks only to the judiciary's authority to review congressional legislation, his argument easily expands to cover the other cases.

According to Marshall, if the Constitution is the fundamental law of the land, "unchangeable by ordinary means," all statutes at variance with it are ipso facto void. If any law at variance with the Constitution is ipso facto void but is nonetheless allowed to operate in practice because the Court has no authority to strike it down, one has reached a great "absurdity." This would mean that the legislature is limited in theory but omnipotent in practice, a situation that would "subvert the very foundation of all written constitutions." Writing several years earlier in Federalist No. 78, Alexander Hamilton had also argued that judicial review would be a necessary means of enforcing the limits on governmental power expressed in a written constitution: "Limitations of this kind [prohibitions on bills of attainder and ex post facto laws] can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing."

While few today would object to the idea that the Supreme Court is the final authority on questions of constitutional meaning, prominent figures throughout American history have challenged this proposition. Most notably, figures such as Thomas Jefferson, Andrew Jackson, and Abraham Lincoln have maintained that while the Court has the right to assert an opinion on constitutional questions, this opinion does not set a binding precedent for the other branches of government to follow in all future cases. Known as "departmentalism," this view rejects judicial supremacy and holds that each branch of the national government has "an equal right to interpret the Constitution" according to its own best lights.

While judicial review is grounded in the theory of a written constitution, departmentalism also has constitutional foundations. Thomas Jefferson notes that the Constitution created "co-ordinate branches" of government design to be "checks on each other." The Framers fashioned a system of separation of powers, not a system in which the judicial branch would be "despotic." Moreover, members of all branches of the national government—not just the judiciary—take oaths to uphold the Constitution. According to Andrew Jackson, when a public official takes such an oath, he pledges to "support the [Constitution] as he understands it, not as it is understood by others." All branches of the national government must decide on the constitutionality of the legislation before them, and "the opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both."

One might concede that the structure of the U.S. Constitution allows the judiciary to settle with finality questions of constitutional meaning but nonetheless object to the practice of "strong" judicial review on other grounds. For contemporary legal and political philosopher Jeremy Waldron, most versions of "strong" judicial review are not democratically legitimate, as they transfer power from the people's elected representatives to unelected judges and to the authors of written constitutions that are long since deceased.

In addition to this normative criticism, Waldron suggests that fidelity to an old written document can hamper effective government. Particularly if the document is difficult to amend, it becomes ill suited for addressing new problems and situations. All of this distracts from one of the real purposes of modern constitutional government, which is to structure robust discussion and disagreement about rights. In Waldron's view, judicial review tends to reduce discussions about rights to questions about textual interpretation and judicial precedent.

Defenders of written constitutions and judicial review offer two very different responses to such criticism, both of which concern how to read a written constitution. One approach first defended by John Marshall claims that to ensure the flexibility and longevity of a written constitution, judges must construct the constitution's original provisions broadly and liberally while nonetheless remaining within the boundaries of the constitution. A different approach counsels judges to ensure that their application of constitutional principles is kept up-to-date by interpreting the document in accordance with the spirit of the times. Proponents of the first approach generally maintain that defenders of the second approach do not remain faithful to the idea of a written constitution, which places specific limitations on government which must not be surpassed, even for the sake of relevance.

Bills of Rights

If a constitution is going to be written, should it also have a bill of rights, or a list of rights explicitly reserved to the people? What purposes do bills of rights serve, or are they at best superfluous, perhaps even dangerous?

In the American context, the great debate over a bill of rights took place in the context of the ratification debates. The Federalists argued that a federal bill of rights was both "unnecessary" and
"dangerous." A bill of rights was unnecessary because the U.S. Constitution created a government of enumerated powers. The theory underpinning the Constitution was that powers not expressly granted to the general government were reserved to the people or the states. A government of enumerated powers was, by definition, a limited government. If a power—say, to regulate the press— had not been delegated by the people to the national government, the national government simply had no authority to pass legislation restricting freedom of the press. Moreover, the Constitution itself contained a number of restrictions on the national government that protected individual liberty (e.g., the prohibition of ex post facto laws), and in a larger sense, the Constitution as a whole could be understood as a bill of rights insofar as it provided a number of mechanisms whereby individual liberty would be protected (e.g., representation).

In the Federalists' view, a bill of rights was dangerous for two reasons—one often mentioned, the other rarely mentioned. The Federalists often contended that enumerating rights could be taken to imply that the government had the power to pass restrictive legislation regarding all rights and liberties not expressly reserved. Interpreted in this way, the existence of a bill of rights could be used—no doubt by unscrupulous individuals—to limit rights. The Federalists also quietly feared that an emphasis on the kinds of restrictions on national power contained in a bill of rights could weaken the general government. After all, a national government that could competently perform the essential tasks of government was the "first defense of individual rights."

The Anti-Federalists countered by pointing out that the enumerated powers indicated in the Constitution were in fact broad and expansive. As Brutus observed, while it was "true this government is limited to certain objects...a little attention to the powers vested in the general government" would persuade the "candid man" that these powers would "extend to every case that is of the least importance." When these powers were combined with the implied powers that might be derived from the Constitution's declaration that Congress could pass any law "necessary and proper for carrying into Execution" its enumerated powers, the national legislature had the potential to become exceedingly powerful. For the Anti-Federalists, a bill of rights was necessary to limit the powers of the proposed national government.

More generally, the Anti-Federalists thought that bills of rights served to remind citizens of the purposes for which government was instituted. Even if a bill of rights turned out to be relatively toothless from a legal point of view (which it has not, as a rule), the Anti-Federalists nevertheless maintained that a bill of rights was a crucial instrument for the "political and moral education of the people on which free republican government depends."

Separation of Powers, Checks and Balances, and the Rule of Law

The related ideas of distinguishing different functions of government and ensuring that political power does not become concentrated in a single set of hands are axioms of modern constitutional government, but they have a long history. For example, Aristotle claims that every constitution contains three elements—a deliberative element, an executive element, and a judicial element. He does not, however, conclude from this insight that each analytically distinct aspect of governing needs to be housed in a separate institution or that the functions of government themselves needed to be balanced. In his view, the balance to the constitution would be provided by the fact that the dominant social classes within the city—the rich few and the many, who are poor—would struggle for power across the different institutions of government. Better yet, the city would contain a large middle class that would control these institutions. In either scenario, Aristotle's goal was to achieve political stability by giving as many parts of the city as possible a share in rule, ensuring that no part of the city would be able to oppress another part.

Polybius also recommends a mixed constitution, which he says should be a mixture of the three principal kinds of constitutions: kingship, aristocracy, and democracy. Like Aristotle, the category of socioeconomic class plays an important role in Polybius's analysis. However, Polybius's analysis of the Roman Republic in particular leads him to associate the different classes with different governmental institutions, whereas Aristotle had simply recognized a general class struggle across institutions. The Roman consuls represented the monarchical element of the state, but each of the two primary classes in Roman society—the patricians and the plebeians—would be assigned a particular part of the government. The patricians would control the senate, and the plebeians would have their own assemblies. In Polybius's view, institutionalizing the struggle between the classes would make the regime more stable.

Montesquieu and James Madison (writing as Publius) are the primary exponents of the modern understanding of separation of powers. According to both, the principal powers of government are three: legislative, executive, and judicial. These powers should be exercised by three distinct parts or "departments" of government. Taking England for its model, Montesquieu's system also involves the institutionalization of society's two primary factions. The bicameral legislature, he argues, ought to be composed of a chamber of nobles and a chamber of the people's representatives. Since American society had no traditional estates to institutionalize, the U.S. Constitution's version of separation of powers is organized without reference to social classes.

At its core, separation of powers is a means to the end of preserving individual liberty, for a government in which power becomes concentrated is more likely to act arbitrarily and become despotic. However, to preserve liberty, power cannot be dispersed among institutions in an arbitrary way, without reference to the different functions of government. Rather, by identifying the three traditional powers of government, it is implied that government has several related but distinct tasks to accomplish and that these should be performed in a certain order. First, laws must be made by the legislative branch so that citizens know what is expected of them. Next, these laws must be enforced by the executive branch. Last, any legal disputes must be resolved by the judicial branch. Identification and separation of the different powers of government allows for laws to be made, executed, and adjudicated in an orderly, predictable fashion. Separation of powers protects individual liberty by dividing power and by establishing the rule of law in the most basic operations of the government.

Separation of powers is a necessary means of securing individual liberty, and checks and balances are a necessary means of securing separation of powers. This is a crucial element of Madison's argument. In designing a constitutional system, it is not enough simply to recognize the importance of separating the powers of government, for this recognition alone does nothing to ensure that separation of powers is a political reality. As Madison puts in in Federalist 48, "...[A] mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against the encroachments which lead to a tyrannical concentration of all the powers of government in the same hands." Instead, the primary means of ensuring that the powers of government remain separate is to provide each department with the "constitutional means" necessary to check the "encroachments" of the other departments. In Madison's view, ordinary human ambition should motivate members of the different departments to use the constitutional means at their disposal, and when they exercise their constitutional prerogatives in this way, a rough balance of power among the institutions is preserved.

Federalism

Madison maintains that federalism complements the separation of powers as a check on the concentration of power, providing a "double security...to the rights of the people." In principle, American federalism is a division of power between the national government and the states that affords the states "a residuary and inviolable sovereignty" over all objects that have not been expressly delegated to the national government. However, even before the Constitution was ratified, the ever-prescient Anti-Federalist Brutus raised doubts about this interpretation of the Constitution, arguing that the Constitution in fact would effectively destroy the states as meaningful political units.

When discussing the powers of the proposed national government, Madison states that Americans are united for certain common purposes, common purposes which are the proper objects of a national government. However, Americans have not been "consolidated into one nation" in such a way that would give the national legislature "supremacy over all persons and things." On the contrary, local and municipal authorities retain some sovereignty, and they are "no more subject, within their respective spheres, to the general authority than the general authority is subject to them within its own sphere."

Several decades later, Tocqueville echoes Publius's view that the Constitution created a government that was neither entirely national nor entirely federal (or confederate), but "a composition of both." In the America of 1787-1789, he says, "A form of society [was]...discovered in which several peoples really fused into one in respect of certain common interests but remained separate and no more than confederate in all else. ... Clearly here we have not a federal government but an incomplete national government. Hence a form of government has been found which is neither precisely national nor federal...."

Brutus admitted that the Constitution did not explicitly create a consolidated national government. However, he argued that over time, several features of the Constitution, including the Supremacy Clause and the power granted to Congress to make any laws '"necessary and proper for carrying into Execution"' its enumerated powers, would generate a tendency toward consolidation. The states would be rendered insignificant in a system in which national law trumped state law and in which the national legislature could pass any law. It might be said that in Brutus's view, the Federalists were either being disingenuous about how much power would be left to the states or did not understand the implications of the Convention's handiwork.
Due Process of Law

A corollary of the rule of law is the due process of law. The rule of law encompasses the idea that laws should be made and enforced in accordance with established rules and procedures, and due process requires that no person be deprived of life, liberty, or property in an arbitrary way, or without reference to established rules and procedures. In the Anglo-American tradition, the idea of due process of law is at least as old as the Magna Carta, which uses the equivalent expression "by the law of the land": "No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land." What, precisely, according due process requires has of course been disputed, but fundamental to the idea of due process is the recognition that "people have come to expect certain things of a system of justice and, whatever else the concept may include, due process at least seeks to satisfy those minimal expectations."

In American constitutional law, the idea that government ought to follow certain established procedures before depriving someone of life, liberty, or property is known as procedural due process. Procedural due process is most commonly associated with the stringent protections accorded to criminal defendants by several amendments to the U.S. Constitution, many of which have been extended and strengthened through constitutional interpretation. Among other procedural safeguards, the constitutional text guarantees criminal defendants the right to counsel, the right to be confronted by witnesses for the prosecution, the right to a "speedy and public trial, by an impartial jury," the right "to be informed of the nature and cause of the accusation" against them, and the right to "compulsory process for obtaining witnesses in [their] favor." Originally applicable only in federal cases, these protections have been extended by the Court to state-level defendants through the process of selective incorporation. Additionally, the Court has in recent decades taken a generous view of what these constitutional provisions require. For example, in Gideon v. Wainwright (1963), the Court held that the right to be represented by counsel meant that an indigent defendant must be provided with a publicly funded attorney.

Procedural due process is not just for criminal defendants. The modern state acts on many fronts, a fact that increases the possibility of tension between state action and the individual's liberty and property interests. While criminal cases trigger the most robust constitutional protections, the Court has held that individuals in all sorts of other circumstances have a right to various degrees of procedural due process. For example, persons facing a lengthy school suspension, the termination of welfare benefits, or dismissal from a tenured teaching position at a public school have a constitutional right to "some kind of hearing." Generally speaking, the nature and rigor of the proceedings in any particular case ought to be relative to "the precise nature of the government function involved as well as of the private interest that has been affected by government action."

Trial by Jury

Trial by jury—particularly in criminal but also in civil cases— has long been established in the Anglo-American legal tradition, though understandings of the jury's function have shifted over time. As late as the 17th century in England, for example, it was common for juries to be viewed as bodies convened for the purpose of assisting the king or judge in dispensing justice, but as bodies that were ultimately subordinate to the royal or judicial authority. Jurors could be fined, for example, for failing to return the verdict sought by the judge. The decision in the case of Edward Bushell (1670)—a juror who refused to pay such a fine—was pivotal in establishing the jury as a body that could and should deliberate independently of outside influence. Complementing Chief Justice John Vaughan's verdict in Bushell's case was the increasingly widespread belief in both the ability and duty of the juror to reason for himself about a case, uninstructed by the judge except on points of law. The modern understanding of the jury's role in Anglo-American law thus originates in this period.

Article III of U.S. Constitution guarantees the right to trial by jury in all criminal cases excepting cases of impeachment. The Seventh Amendment guarantees the right to jury trial in civil cases in which the "value in controversy exceeds twenty dollars." This amendment is one of the few portions of the Bill of Rights that has not yet been incorporated, though most states do require jury trial in civil cases.

When the proposed Constitution was being considered by the states, many Anti-Federalists objected to the Constitution's silence on jury trials in civil cases, a fact they considered a threat to the institution of the jury more generally. Their insistence on the importance of jury trials in civil cases is instructive, for it is focused less on the quality of justice meted out by juries and more on what Alexis de Tocqueville would later describe as the jury's role as a "political institution." Civil cases are more numerous than criminal cases, and involving the public regularly in the operations of the judicial branch allowed the people to exercise control over the administration of government. According to the Anti-Federalist Federal Farmer,

The jury trial, especially politically considered, is by far the most important feature in the judicial department in a free country....Juries are constantly and frequently drawn from the body of the people, and freemen of the country; and by holding the jury's right to return a general verdict in all cases sacred, we secure to the people at large, their just and rightful controul in the judicial department. If the conduct of judges shall be severe and arbitrary, and tend to subvert the laws, and change the forms of government, the jury may check them, by deciding against their opinions and determinations, in similar cases.

Popular involvement in civil cases was not simply about "controul," however. It also provided a valuable political education to large numbers of citizens. The Federal Farmer continues, "[T]he jury trial brings with it an open and public discussion of all causes." Along with the more popular branch of the state legislatures, the jury trial is an important "means by which the people are let into the knowledge of public affairs — are enabled to stand as the guardians of each others rights, and to restrain, by regular and legal measures, those who otherwise might infringe upon them."

Supplemental Materials for Unit 2

Suggested Discussion Questions

 What are the components of the rule of law?
 Identify some shortcomings of the rule of law. Is it possible to remedy or attenuate these shortcomings?
 Discuss the advantages and disadvantages of both written and unwritten constitutions.
 Why does John Marshall argue that judicial review is inherent in the nature of written constitutions? Do you agree with his analysis?
 What are some objections to "strong" judicial review?
 Is judicial supremacy or departmentalism more consonant with the nature and spirit of the U.S. Constitution?
 Who should resolve disputes over constitutional meaning? Why?
 Discuss the advantages and disadvantages of attaching a bill of rights to a written constitution.
 What purposes does separation of powers serve? How can one ensure that separation of powers is a practical reality and not just a theoretical commitment?
 Do you agree with Brutus's claim that the language and operation of the U.S. Constitution were bound to generate a strong tendency toward centralization?
 What is the purpose of "due process of law"? On a practical level, what measures must be in place to ensure that individuals receive due process of law?
 Are there differences between the English and American understandings of due process?
 Summarize the evolving role of the jury in the English political tradition.
 What "political" purposes can juries serve?

Further Reading

The Rule of Law

 Tom Bingham, The Rule of Law (New York: Penguin Books, 2011).
 John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980).
 H.LA. Hart, The Concept of Law, 3rd ed. (Oxford: Clarendon Press, 2012).
 Antonin Scalia, "The Rule of Law as a Law of Rules," University of Chicago Law Review, vol. 56 (1989): 1175–88.
 Jeremy Waldron, "The Rule of Law," Stanford Encyclopedia of Philosophy (2016), https://plato.stanford.edu/entries/rule-of-law/.

Constitutions

 Scott Gordon, Controlling the State: Constitutionalism from Ancient Athens to Today (Cambridge: Harvard University Press, 2002).
 Charles Howard McIlwain, Constitutionalism: Ancient and Modern [1947], rev. ed. (Indianapolis: Liberty Fund, Inc., 2010).

The English and American Constitutions

 Walter Bagehot, The English Constitution (London: Chapman and Hall, 1867).
 Donald S. Lutz, The Origins of American Constitutionalism (Baton Rouge: Louisiana State University Press, 1988).
 Gordon S. Wood, The Creation of the American Republic, 1776-1787, 2nd ed. (Chapel Hill: University of North Carolina Press, 1998).
 Michael P. Zuckert, The Natural Rights Republic: Studies in the Foundation of the American Political Tradition (South Bend: University of Notre Dame Press, 1996).

Judicial Review and Its Critics

 Edward S. Corwin, The Doctrine of Judicial Review: Its Legal and Historical Basis and Other Essays (Piscataway, NJ: Transaction Publishers, 2014) [reprinted from Princeton: Princeton University Press, 1914].
 Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004).
 Saikrishna B. Prakash and John C. Yoo, "The Origins of Judicial Review," The University of Chicago Law Review, vol. 70, no. 3 (2003): 887-982.
 Kevin C. Walsh, "Judicial Departmentalism: An Introduction," William & Mary Law Review, vol. 58 (2017): 1713-1750.
 Keith E. Whittington, Judicial Review and Constitutional Politics (Washington, DC: American Historical Association, 2016).

Bills of Rights

 Robert A. Goldwin, From Parchment to Power: How James Madison Used the Bill of Rights to Save the Constitution (Washington, DC: AEI Press, 1997).
 Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights Became the Bill of Rights (New York: Oxford University Press, 2018).
 Michael Luis Principe, Bills of Rights: A Comparative Constitutional Analysis (Dubuque, IA: Kendall Hunt Publishing, 2014).

Separation of Powers

 Martin Diamond, "The Separation of Powers and the Mixed Regime," Publius: The Journal of Federalism, vol. 8, no. 4 (Summer 1978): 33-43.
 W.B. Gwyn, The Meaning of the Separation of Powers (New Orleans: Tulane University Press, 1965).
 Pierre Manent, "Montesquieu and the Separation of Powers," in An Intellectual History of Liberalism, trans. Rebecca Balinski (Princeton: Princeton University Press, 1995), Chapter 5.
 M.J.C. Vile, Constitutionalism and the Separation of Powers (Oxford: Clarendon Press, 1967).
 Keith E. Whittington, "The Separation of Powers at the Founding," in The Separation of Powers: Documents and Commentary, eds. Katy J. Harriger and William Owen Roberts (Washington, DC: CQ Press, 2013).

Federalism

 Samuel H. Beer, To Make a Nation: The Rediscovery of American Federalism (Cambridge: Belknap Press, 1998).
 Martha Derthick, Keeping the Compound Republic: Essays on American Federalism (Washington, DC: Brookings Institution Press, 2001).
 John Dinan, "The U.S. Supreme Court and Federalism in the Twenty-first Century," State and Local Government Review, vol. 49 (Sept., 2017): 215-228.
 Daniel J. Elazar, Exploring Federalism (Tuscaloosa: University of Alabama Press, 1987).
 Michael W. McConnell, "Federalism: Evaluating the Founders' Design," The University of Chicago Law Review, vol. 54, no. 4 (Oct., 1987): 1484-1512.
 David Brian Robertson, Federalism and the Making of America, 2nd ed. (New York: Routledge, 2017).

Due Process of Law

 Matthew J. Franck, "What Happened to the Due Process Clause in the Dred Scott Case? The Continuing Confusion over 'Substance' versus 'Process,'" American Political Thought, vol. 4, no. 1 (Winter 2015): 120-148.
 John V. Orth, Due Process of Law: A Brief History (Lawrence: University Press of Kansas, 2003).
 Timothy Sandefur, "In Defense of Substantive Due Process, or the Promise of Lawful Rule," Harvard Journal of Law & Public Policy, vol. 35, no. 1 (2012): 284-326.
 "What is Due Process?" Cato Unbound: A Journal of Debate (Feb. 2012) (Contributors: Timothy Sandefur [lead essay], Gary S. Lawson, Lawrence Rosenthal, and Ryan Williams), https://www.cato-unbound.org/issues/february-2012/what-due-process.
 Ryan C. Williams, "The One and Only Substantive Due Process Clause," Yale Law Journal, vol. 120, no. 3 (2010): 408-512.

Trial by Jury

 Stephen J. Adler, The Jury: Trial and Error in the American Courtroom (New York: Crown Publishing Group, 1994).
 Albert Alschuler & Andrew G. Deiss, "A Brief History of the Criminal Jury in the United States," University of Chicago Law Review, vol. 61 (1994): 867-928.
 Akhil Reed Amar, "Juries," in The Bill of Rights: Creation and Reconstruction (New Haven: Yale University Press, 1998), 81-118.
 William L. Dwyer, In the Hands of the People: The Jury's Origins, Triumphs, Troubles, and Future in American Democracy (New York: Thomas Dunne Books, 2002).
 Leonard W. Levy, The Palladium of Justice: Origins of Trial by Jury (Chicago: Ivan R. Dee, 2000).

 

A.V. Dicey, "The Rule of Law: Its Nature and General Applications," in Introduction to the Study of the Law of the Constitution (Indianapolis: LibertyClassics, 1982), 110.
Ibid, 114.
Locke, Second Treatise, §136.
Lon L. Fuller, The Morality of Law, rev. ed. (New Haven: Yale University Press, 1969), 33-39.
See, e.g., Plato, Statesman, in Complete Works, ed. John M. Cooper (Indianapolis: Hackett Publishing Company, 1997), 293a-303c, esp. 297e, 300b-c.
Ibid, 293d-e.
Hobbes, Leviathan, XXVI.
Locke, Second Treatise, §13.
Bossuet, Politics Drawn from the Very Words of Holy Scripture (extracts), in Readings in European History, vol. 2, ed. James Harvey Robinson (Boston: Ginn & Company, 1906), 273-277.
Hannah Arendt, The Origins of Totalitarianism (Orlando, Harcourt, Inc., 1968), 461.
Ibid., 461-463, 468.
James W. Ceaser, American Government: Origins, Institutions, and Public Policy, 7th ed. (Dubuque, IA: Kendall Hunt Publishing, 2002), 6, quoting the Oxford English Dictionary's definition of "constitution."
Ibid., 20-21.
Robert Blackburn, "Britain's Unwritten Constitution," British Library website, https://www.bl.uk/magna-carta/articles/britains-unwritten-constitution.
Ibid.
Dicey, 119-120.
Blackburn, "Britain's Unwritten Constitution."
Ceaser, 6.
The term is Jeremy Waldron's, though he generally opposes the practice. See Waldron, "The Core of the Case Against Judicial Review," in Political Political Theory, 199-202.
Howard Gillman, Mark A. Graber, and Keith E. Whittington, American Constitutionalism: Powers, Rights, and Liberties (Oxford: Oxford University Press, 2015), 146.
Marbury v. Madison 5 US 137 (1803).
Hamilton, Federalist 78.
See, e.g., Andrew Jackson, Veto Message Regarding the Bank of the United States, July 10, 1832, http://avalon.law.yale.edu/19th_century/ajveto01.asp; Abraham Lincoln, Sixth Lincoln-Douglas Debate, October 13, 1858, and First Inaugural Address, March 4, 1861; and Thomas Jefferson, Letter to Abigail Adams (1804).
Gillman, Graber, and Whittington, 18, 151.
Jefferson, Letter to Abigail Adams (Sept. 11, 1804), in Gillman, Graber, and Whittington, 151-152.
Jackson, Veto Message.
The Anti-Federalist Brutus read the Constitution in this way, but it formed the basis of one of his strongest protests against the document. See Brutus, "The Problem of Judicial Review," Part I.
Waldron, "Judicial Review," 199, 223-226.
Ibid., 209-212, 221-226.
See, e.g., John Marshall's opinion in McCulloch v. Maryland 17 US 316 (1819): The Constitution provides only the "great outlines" of a government. In order for the Constitution to be an effective governing document across numerous historical periods and events, the Framers must have intended to specify the powers of the government while leaving the choice of the effective means of executing those powers to the various Congresses.
See, e.g., Justice William J. Brennan, Jr., "The Constitution of the United States: Contemporary Ratification," speech delivered at Georgetown University, October, 12, 1985.
Antonin Scalia, "Originalism: The Lesser Evil?" University of Cincinnati Law Review, vol. 57 (1988-1989): esp. 854.
Hamilton, Federalist 84.
Herbert J. Storing, What the Anti-Federalists Were For (Chicago: University of Chicago Press, 1981), 66.
Storing, 66, 68; Hamilton, Federalist 84.
Storing, 69.
Hamilton, Federalist 84.
Storing, 69.
Ibid., 66.
Brutus, No. 1, October 17, 1787, http://teachingamericanhistory.org/library/document/brutus-i/.
Storing, 67, 70.
Aristotle, The Politics, IV.14-16.
Pangle, Montesquieu's Philosophy of Liberalism, 119.
Ibid., 119-120.
Ibid., 120-121.
Montesquieu, The Spirit of the Laws, bk. 11, ch. 6; Madison, Federalist 51.
This connection between separation of powers and the rule of law is made by Jeremy Waldron, who is also the source for the other arguments of this paragraph. See Waldron, "Separation of Powers and the Rule of Law," in Political Political Theory.
Madison, Federalist 51.
Ibid.
Ibid.
James Madison, Federalist 39.
Ibid.
Ibid.
Tocqueville, Democracy in America, 157.
Brutus, No. 1 (Oct. 18, 1787), quoting U.S. Constitution, Article I, Section 8, in Herbert J. Storing, ed., The Complete Anti-Federalist. 7 vols. (Chicago: University of Chicago Press, 1981), 2.9.10-21.
In his Institutes of the Lawes of England (vol. 2, 1606) Edward Coke observes that from a fairly early date, the expression "by the law of the land" meant in accordance with the "due process of Law." http://oll.libertyfund.org/titles/coke-selected-writings-of-sir-edward-coke-vol-ii?q=due+process#Coke_0462-02_1061
Magna Carta, 1215, http://avalon.law.yale.edu/medieval/magframe.asp
A.E. Dick Howard, The Road from Runnymede: Magna Carta and Constitutionalism in America (Charlottesville: University of Virginia Press, 1968), 345.
Gideon v. Wainwright (1963) 372 US 335.
See, e.g., Doe v. Alger regarding the denial of due process in a Title IX case (W.D. Va. 2016)
Henry J. Friendly, "Some Kind of Hearing," University of Pennsylvania Law Review, vol. 123 (1975), 1273-1274.
Thomas J. McSweeney, "Magna Carta and the Right to Trial by Jury," Magna Carta: Muse and Mentor (Eagan, MN: Thomson Reuters, 2014), 145-146.
Kevin Crosby, "Bushell's Case and the Juror's Soul," The Journal of Legal History, Vol. 33, No. 3 (2012), 271.
Ibid., 251.
Ibid., 286.
Suja A. Thomas, "Nonincorporation: The Bill of Rights After McDonald v. Chicago," Notre Dame Law Review, Vol. 88, No. 1 (2012), 201.
Tocqueville, Democracy in America, vol. I, pt. 2, ch. 8.
Federal Farmer XV, http://teachingamericanhistory.org/library/document/federal-farmer-xv/.
Ibid.