The Rule of Law -- Part 19

Hayek’s discussion of America’s contribution to the concept of the rule of law.

In this essay we’ll explore Friedrich Hayek’s discussion of America’s contribution to the concept of the rule of law in his book The Constitution of Liberty.

Hayek writes:

The movement [toward securing individual liberty] n the beginning was based entirely on the traditional conceptions of the liberties of Englishmen. Edmund Burke and other English sympathizers were not the only ones who spoke of the colonists as “not only devoted to liberty, but to liberty according to English ideas, and on English principles”; the colonists themselves had long held this view. They felt that they were upholding the principles of the Whig revolution of 1688; and as “Whig statesmen toast[ed] General Washington, rejoiced that America had resisted, and insist[ed] on the acknowledgment of independence,” so the colonists toasted William Pitt and the Whig statesmen who supported them … In England, after the complete victory of Parliament, the conception that no power should be arbitrary and that all power should be limited by higher law tended to be forgotten. But the colonists had brought these ideas with them and now turned them against Parliament. They objected not only that they were not represented in that Parliament but even more that it recognized no limits whatever to its powers. With this application of the principle of legal limitation of power by higher principles to Parliament itself, the initiative in the further development of the ideal of free government passed to the Americans.

Hayek remarks how fortunate America was to have so many serious thinkers among its political leaders at the time of its founding:

[Americans] were singularly fortunate, as perhaps no other people has been in a similar situation, in having among their leaders a number of profound students of political philosophy … Until the final break, the claims and arguments advanced by the colonists in the conflict with the mother country were based entirely on the rights and privileges to which they regarded themselves entitled as British subjects. It was only when they discovered that the British constitution, in whose principles they had firmly believed, had little substance and could not be successfully appealed to against the claims of Parliament, that they concluded that the missing foundation had to be supplied. They regarded it as fundamental doctrine that a “fixed constitution” was essential to any free government and that a constitution meant limited government. From their own history they had become familiar with written documents which defined and circumscribed the powers of government such as the Mayflower compact and the colonial charters … To the colonists, freedom meant that government should have powers only for such action as was explicitly required by law, so that nobody should possess any arbitrary power.

Hayek describes his understanding of the essence of a legal constitution:

A constitution which in such manner is to limit government must contain what in effect are substantive rules, besides provisions regulating the derivation of authority. It must lay down general principles which are to govern the acts of the appointed legislature. The idea of a constitution, therefore, involves not only the idea of hierarchy of authority or power but also that of a hierarchy of rules or laws, where those possessing a higher degree of generality and proceeding from a superior authority control the contents of the more specific laws that are passed by a delegated authority. The conception of a higher law governing current legislation is a very old one. In the eighteenth century it was usually conceived as the law of God, or that of Nature, or that of Reason. But the idea of making this higher law explicit and enforceable by putting it on paper, though not entirely new, was for the first time put into practice by the Revolutionary colonists … [T]he model that was profoundly to influence the rest of the world was the federal Constitution. The fundamental distinction between a constitution and ordinary laws is similar to that between laws in general and their application by the courts to a particular case: as in deciding concrete cases the judge is bound by general rules, so the legislature in making particular laws is bound by the more general principles of the constitution. The justification for these distinctions is also similar in both cases: as a judicial decision is regarded as just only if it is in conformity with a general law, so particular laws are regarded as just only if they conform to more general principles. And as we want to prevent the judge from infringing the law for some particular reason, so we also want to prevent the legislature from infringing certain general principles for the sake of temporary and immediate aims.

Hayek then explains why a constitution is needed to retrain the immediate impulses of any ruler, including majorities of voters:

Because of the restricted capacity of our minds, our immediate purposes will always loom large, and we will tend to sacrifice long-term advantages to them. In individual as in social conduct we can therefore approach a measure of rationality or consistency in making particular decisions only by submitting to general principles, irrespective of momentary needs. Legislation can no more dispense with guidance by principles than any other human activity if it is to take account of effects in the aggregate. A legislature, like an individual, will be more reluctant to take certain measures for an important immediate aim if this requires the explicit repudiation of principles formally announced. It need hardly be pointed out that a constitutional system does not involve an absolute limitation of the will of the people but merely a subordination of immediate objectives to long-term ones. This division of authority implies more than may at first be apparent. It implies a recognition of limits to the power of deliberate reason and a preference for reliance on proved principles over ad hoc solutions … These limitations were conceived to protect the people against those to whom they must give power, and they are the only means by which the people can determine the general character of the order under which they will live. It is inevitable that, by accepting general principles, they will tie their hands as far as particular issues are concerned. For only by refraining from measures which they would not wish to be used on themselves can the members of a majority forestall the adoption of such measures when they are in a minority … And the Constitution which the new American nation was to give itself was definitely meant not merely as a regulation of the derivation of power but as a constitution of liberty, a constitution that would protect the individual against all arbitrary coercion … The eleven years between the Declaration of Independence and the framing of the federal Constitution were a period of experimentation by the thirteen new states with the principles of constitutionalism. In some respects their individual constitutions show more clearly than the final Constitution of the Union how much the limitation of all governmental power was the object of constitutionalism. This appears, above all, from the prominent position that was everywhere given to inviolable individual rights, which were listed either as part of these constitutional documents or as separate Bills of Rights. The principal concern of all was, as the Bill of Rights preceding the constitution of Massachusetts of 1780 expressed it, that the government should be “a government of laws and not of men.” The most famous of these Bills of Rights, that of Virginia, which was drafted and adopted before the Declaration of Independence and modeled on English and colonial precedents, largely served as the prototype not only for those of the other states but also for the French Declaration of the Rights of Men and Citizens of 1789 and, through that, for all similar European documents. In substance, the various Bills of Rights of the American states and their main provisions are now familiar to everybody.

Hayek then describes how America’s founders were the first to consciously plan a national government constrained by both a division of powers between the federal and state governments at the governmental level, and by a bill of rights at the individual level:

Much is sometimes made of the fact that the American Constitution is the product of design and that, for the first time in modern history, a people deliberately constructed the kind of government under which they wished to live. The Americans themselves were very conscious of the unique nature of their undertaking … When the Federal Convention, charged “to render the constitution of the federal government more adequate to the exigencies of the Union,” met at Philadelphia in May, 1787, the leaders of the federalist movement found themselves confronted by two problems. While everybody agreed that the powers of the confederation were insufficient and must be strengthened, the main concern was still to limit the powers of government as such, and not the least motive in seeking reform was to curb the arrogation of powers by the state legislatures.36 The experience of the first decade of independence had merely somewhat shifted the emphasis from protection against arbitrary government to the creation of one effective common government. But it had also provided new grounds for suspecting the use of power by the state legislatures. It was scarcely foreseen that the solution of the first problem would also provide the answer to the second and that the transference of some essential powers to a central government, while leaving the rest to the separate states, would also set an effective limit on all government. Apparently it was from Madison that “came the idea that the problem of producing adequate safeguards for private rights and adequate powers for national government was in the end the same problem, inasmuch as a strengthened national government could be a make-weight against the swollen prerogatives of state legislatures.” Thus the great discovery was made of which Lord Acton later said: “Of all checks on democracy, federalism has been the most efficacious and the most congenial … The federal system limits and restrains the sovereign power by dividing it, and by assigning to Government only certain defined rights. It is the only method of curbing not only the majority but the power of the whole people … The other chief feature of the Constitution relevant here is its provision guaranteeing individual rights. The reasons why it was at first decided not to include a Bill of Rights in the Constitution and the considerations which later persuaded even those who had at first opposed the decision are equally significant. The argument against inclusion was explicitly stated by Alexander Hamilton in the Federalist: “[Bills of rights are] not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers not granted, and on this very account would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a right to prescribe proper regulations concerning it, was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.” On the other hand, it was soon recognized that the Constitution was bound to confer on government powers which might be used to infringe individual rights if these were not specially protected and that, since some such rights had already been mentioned in the body of the Constitution, a fuller catalogue might with advantage be added. “A bill of rights,” it was later said, “is important, and may often be indispensable, whenever it operates, as a qualification upon powers actually granted by the people to the government. This is the real ground of all the bills of rights in the parent country, in the colonial constitutions and laws, and in the state constitutions,” and “A bill of rights is an important protection against unjust and oppressive conduct on the part of the people themselves.” The danger so clearly seen at the time was guarded against by the careful proviso (in the Ninth Amendment) that “the enumeration of certain rights in this Constitution shall not be construed to deny or disparage others retained by the people” …

Hayek then describes how America's founders understood that, even while constraining the powers of the national legislature directly in the Constitution, the Constitution should also provide for a means of restricting any deviations from those restrictions, namely a judicial branch:

If we consider that the aim of the Constitution was largely to restrain legislatures, it becomes evident that arrangements had to be made for applying such restraints in the way that other laws are applied—namely, through courts of justice. It is therefore not surprising that a careful historian finds that “judicial review, instead of being an American invention, is as old as constitutional law itself, and without it constitutionalism would never have been attained.” The important fact, at any rate, is that to some of the drafters of the Constitution judicial review was a necessary and self-evident part of a constitution, that when occasion arose to defend their conception in the early discussions after its adoption, they were explicit enough in their statements; and that through a decision of the Supreme Court it soon became the law of the land. It had already been applied by the state courts with respect to the state constitutions (in a few instances even before the adoption of the federal Constitution), although none of the state constitutions had explicitly provided for it, and it seemed obvious that the federal courts should have the same power where the federal Constitution was concerned. The opinion in Marbury v. Madison, in which Chief Justice Marshall established the principle, is justly famous also for the masterly manner in which it summed up the rationale of a written constitution. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). [O]nly a few passages from this famous decision can be quoted here: “The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right … The question, whether an Act, repugnant to the constitution can become the law of the land, is a question deeply interesting to the United States, but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles supposed to have been long and well established, to decide it … The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed and if Acts prohibited and Acts allowed are of equal obligation … It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”

Finally, Hayek points out that “Incredibly successful as the American experiment in constitutionalism has been—and I know of no other written constitution which has lasted half as long—it is still an experiment in a new way of ordering government … Americans have been able to defend freedom by defending their Constitution.”

In the next essay in this series, we’ll explore Hayek’s discussion of how a free society might coexist with a welfare state.