Thursday, June 20, 2019

Nedzel on the Rule of Law in the United States

Nadia E. Nedzel, Southern University Law Center, has posted The United States, Checks and Balances, and a Commercial Republic: An Experiment:
This chapter explains how the concept of the rule of law grew and changed in the founding of the United States. The United States was founded by people who thought they were adopting their common law heritage. United by a hustling spirit and a deep distrust of big government (especially England’s), the Founders were deeply influenced by the Scottish Enlightenment and its focus on individual liberty (as can be seen in Madison’s Federalist Papers), and they were determined to create a commercial republic (Hamilton). With the passage of the Constitution, they were fascinated by the French Revolution, and some (Jefferson) felt a strong accord with its theoretical concepts. Others (Adams) believed that the Philosophes were unrealistic, far too involved in theory, and had not seen the down-side of legislation-centered democracy.

While originally English in the focus on limited government and individual liberty, the American conception of the rule of law first became more self-conscious, more self-critical, and next developed a deeper (or at least more self-conscious) set of checks and balances than its parent country. That concept – the American understanding of the relationship between man and government – has gradually become more conflicted and intertwined with Rechtsstaat during and after the Great Depression and the creation of a national income tax, social security, and other ‘safety-net’ governmental programs to help those in need, as will be discussed in Chapter 5.
--Dan Ernst.  H/t: Legal Theory Blog