Popular Sovereignty, the Rule of Law, and the “Rule of Judges” in the United States

Abstract

Between 1764 and 1776, a conception of the constitution came to prevail in the United States, which represented a real turning point with respect to pre-modern constitutional thought. The constitution would no longer be understood as an assemblage of laws, customs, and traditions, but would instead be considered as a fundamental plan of government, based on a corpus of systematic written norms. The constitution thus assumed a normative character and was no longer merely descriptive. The very word constitution came to be used for the first time in those years with its present-day meaning, and the power of the constitution was clearly placed over and above the power of the ordinary legislator. 1 The awareness of the difference between ordinary laws and constitutional laws stood out as one of the most significant changes in the elaboration of the concept of constitution. Further inventions of US constitutional history included the creation of constituent assemblies, the popular ratification of constitutions, the legal acknowledgement of fundamental rights, the introduction of procedures for amending the constitution, and the institution of judicial review of legislation. On the basis of these innovations, essential to the history of modern constitutionalism, was the attempt to clarify the implications of the idea that the constitution was an act of self-determination by the sovereign people. It is this idea, which is the basis of the tension between politics and law in modern constitutionalism, 2 that gives law its central position in how the political identity of the United States was constructed and the cult of law took root, becoming a veritable civil religion. The idea of “rule of law” consequently underwent a significant twist: in order to be able to speak of “rule of law” and not of “rule of men”, it was not enough that the fundamental rights of the citizen be removed from the arbitrary will of the legislator, but it now became necessary for the law to be seen as a derivation of popular sovereignty. In the republican conception 3 of the period of the founding of the United States, legal certainty was considered