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Week 6 · Chapter

Chapter 6 — Constitutions, Constitutionalism & the Rule of Law

Introduction to Political Science Free sample edition

The module's primary reading · ~35–45 minutes · Objective 4 (compare regime types and constitutional structures — direct and representative, electoral and liberal democracy; authoritarian and totalitarian rule; democratization and backsliding; what constitutions do; the rule of law, separation of powers, and checks and balances), Objective 2 (explain power, authority, legitimacy, and the state — Weber's types of authority, the criteria of statehood, sovereignty, and the social-contract answers of Hobbes, Locke, and Rousseau — and apply these concepts to real and hypothetical cases) · Read it first this week; the lecture, the slides, the tutorial, the quiz, and the workshop all build on it.

In plain language

This week is about rulebooks for whole countries: a constitution (the basic rules for how a government is set up) can create offices, hand them power, and, when it works, hold them back. You will compare the U.S. Constitution of 1787, one written document, with the British model, which has no single document, and you will learn what the rule of law (rules that bind the rulers as well as everyone else) asks for. You will also read two short essays from 1787 and 1788 that tried to design a government able to check itself. The big question of the week is a fair one to argue about: can words on paper actually limit people who hold power?

Why you already care about this

Picture a student hiking club with a 2-page set of bylaws. One rule says the treasurer may not spend more than 150 dollars without a vote of the members. One spring, the treasurer books a 40-seat bus for 600 dollars without asking anyone. Some members say the bylaws settle it: the spending broke the rules. Others shrug and say the bylaws are only paper, since nobody ever enforces them.

You have lived under rulebooks like this. A campus senate charter says how officers are chosen and removed. A lease says what a landlord may and may not do. A workplace handbook says who can approve overtime. Every one of them raises the same two questions: what do the rules say, and do the rules actually bind the people in charge?

Political science asks those questions about countries. This chapter gives you the words for each part of the answer, and one famous design for a government that polices itself.

By the end of this chapter you will be able to:

name the three jobs a constitution does and tell a constitution from constitutionalism;
sort a constitution as written or unwritten, and explain why that form question is separate from whether the rules bind;
work out how many States it takes to ratify, or block, an amendment under Article V;
check a case against the five elements of the rule of law and tell the rule of law from rule by law;
tell separation of powers from federalism and name the checks that make the design work;
close-read the pinned fragments of Federalist No. 10 and No. 51, label each by kind, and credit No. 51 correctly.

Carry this line with you: a rulebook on paper — not yet a rulebook that binds.

Where we are

Already covered: Week 1 gave you the empirical/normative distinction; Week 2 built power, authority, and legitimacy; Weeks 3 and 4 gave you the ideologies and the words of justice; Week 5 sorted the forms government takes.
This week: what constitutions do, written versus unwritten constitutions, entrenchment, the rule of law versus rule by law, separation of powers versus federalism, and the design logic of The Federalist.
How they connect: Week 5's liberal democracy adds protected rights, independent courts, and the rule of law to elections; this week opens up those parts and asks whether a written rulebook can deliver them.
Where we're going next: Week 7, Political Institutions I: Legislatures & Executives, puts the separation of powers to work in two rival designs.

Two earlier ideas do most of the work this week. Week 2 defined legal-rational authority as authority that rests on rules and the office, not the person. A constitution is the rulebook that kind of authority rests on. Week 1 taught you to sort a claim as empirical (checkable against evidence) or normative (argued from values). You will sort every fragment of The Federalist that way in Section 6.

1. Define a constitution: create, empower, limit

Go back to your hiking club. Its bylaws do three different things. They create offices, such as president and treasurer. They empower those offices, letting the treasurer pay the club's bills. And they try to limit them, capping what the treasurer may spend alone.

A country's rulebook does the same three jobs.

A constitution is the fundamental set of rules for how a political system is organized: which offices exist, what powers they hold, and, where the rules bind, what they may not do.

Nearly every state has one. Even a government that ignores its rulebook may still have one on paper. That is why political scientists add a second word.

Constitutionalism is the practice of a political system's fundamental rules actually binding the people who rule, so that officeholders stay within the limits the rules set.

The first word names the rulebook you can hold. The second names a practice you can only watch, the rulebook winning when it collides with the wishes of the people in power.

There is one more link worth making. Week 2 defined legal-rational authority as authority that rests on rules and the office, not on the person. A constitution is the rulebook that kind of authority rests on: it attaches power to offices, not to persons. The treasurer can pay the bills because the bylaws create the office, not because of who the treasurer is.

Worked example — three jobs in Text B. Read two pinned fragments of the U.S. Constitution (1787), as the National Archives transcript prints them, and name the job each one does.

Article I, Section 1: "All legislative Powers herein granted shall be vested in a Congress of the United States". This sentence creates an office (a Congress) and empowers it (with the legislative powers granted). Jobs: create and empower.
Amendment I: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". This sentence tells the same Congress what it may not do. Job: limit.
The dates: the Constitution was signed in 1787 and the first ten amendments were ratified in 1791, so the limits in Amendment I came 1791 − 1787 = 4 years after the signing.

In words: the text creates and empowers in its first article, and a later amendment adds an explicit limit. Whether the limit actually holds is the constitutionalism question, and no fragment can answer it by itself.

Misconception check. Students often think that having a constitution means having limited government. That is tempting, because in the U.S. story the two arrived together. But a constitution can create and empower offices without binding them at all; a regime can print a fine charter and ignore it. Limited government needs constitutionalism, the practice, not only the document.

Memory hook: create, empower, limit — and the third job is the one that can fail.

2. Sort constitutions by form: written versus unwritten

Picture two neighborhood associations. One keeps every rule in a single binder labelled "Bylaws", and anything that conflicts with the binder loses. The other has no binder. Its rules live in years of meeting minutes, a few board decisions, and habits everyone follows, such as never voting on a budget the same night it is proposed. Does the second association have rules? It does. They are only spread out.

Countries split the same way, and you can sort them with the same two questions.

A written constitution is a codified constitution: one supreme document that gathers a system's fundamental rules in a single text, as the U.S. model does.
An unwritten constitution is an uncodified constitution: fundamental rules spread across ordinary statutes, judicial decisions, and conventions instead of one supreme document, as the U.K. model does.

The U.S. text names its own rank. Article VI makes it "the supreme Law of the Land". The U.K. model has no such document. Its rules live in statutes, judicial decisions, and conventions.

A convention is an unwritten rule of political practice that officeholders treat as binding even though no single statute sets it down.
Parliamentary sovereignty is the principle that Parliament is the highest lawmaking authority, so no single supreme document stands above the laws it passes.

The neighborhood association's habit about budgets is a convention. Nobody wrote it into a binder, and everyone still follows it.

Worked example — form versus substance. Ask two separate questions of each case.

The U.S. model. Form: written, one supreme document. Substance: the question of whether it binds is answered by what officeholders and courts actually do, not by the fact of the document.
The U.K. model. Form: unwritten; statutes, judicial decisions, and conventions, with a formally sovereign Parliament. Substance: those rules bind officeholders in practice, so unwritten does not mean unconstrained.
Ostrel (illustrative; a made-up country you will meet again in Section 4). Form: written, with a bill of rights and three branches named in the text. Substance: you will find that the rulebook does not bind its rulers, so written does not mean self-enforcing.

In words: form asks where the rules live; substance asks whether they bind. The two answers can come apart in both directions.

Here is a caveat worth keeping. "Unwritten" is the traditional label, but much of the U.K. model is in fact written down, in ordinary statutes and court decisions. What it lacks is one supreme document. That is why "codified" and "uncodified" are the more exact pair of words.

Misconception check. Students often think an unwritten constitution means no real rules. That is tempting, because "unwritten" sounds like "made up as you go". But the U.K. model binds officeholders through statutes, judicial decisions, and conventions. Missing one document is not the same as missing rules.

Memory hook: form asks where the rules live; substance asks whether they bind.

3. Measure entrenchment: Article V's thresholds

Think about a club whose bylaws can be changed by a simple majority at any meeting. Whoever shows up on a slow night can rewrite the rules. Now picture a club whose bylaws need two thirds of the members to propose a change and a later vote to approve it. The second club's rules are harder to change, and that is the point.

Entrenchment is making certain rules harder to change than ordinary law, for example by requiring supermajorities, as Article V of the U.S. Constitution does for amendments.

You will see Article V's thresholds described here in words, as the course pins them. Proposing an amendment needs two thirds of both Houses of Congress. Ratifying it needs three fourths of the States. (Article V also lets two thirds of the States call a convention to propose amendments; the ratifying threshold stays three fourths.)

Worked example — counting the States. How many States does ratification take, and how few can block it?

Start from a design fact. The Senate has 100 members, two from each State (Article I, Section 3), so there are 100 ÷ 2 = 50 States.
Apply the threshold. Three fourths of 50 is 50 × 3 ÷ 4 = 37.5.
Round the right way. A State cannot ratify by half, so ratification needs at least 38 States.
Find the blocking group. If 13 States refuse, at most 50 − 13 = 37 can ratify, which falls short of 38, so 13 States can block an amendment.

In words: 38 of 50 States must say yes, so any 13 States saying no are enough to stop a change. That is entrenchment in numbers. A rule protected this way survives even when a large majority wants it gone.

Notice what the arithmetic does and does not settle. That 13 States can block an amendment is a design fact, checkable against the text. Whether a blocking group that small is wise protection or an undemocratic veto is a normative question. Proponents of strong entrenchment argue that basic rules should not swing with every majority. Critics respond that a rulebook too hard to change can lock in old mistakes. You decide which worry weighs more.

Misconception check. Students often round three fourths of 50 down to 37, or they think an amendment passes with a simple majority of States. Both slips are tempting, because 37.5 sits halfway and because ordinary elections run on majorities. But a State cannot ratify by half, so the threshold is 38, and Article V asks for three fourths, not half.

Memory hook: 38 to ratify, 13 to block.

4. Separate the rule of law from rule by law

Imagine a town where the parking rules are posted on every street. That sounds fair. Then you learn the mayor's relatives never get tickets, the rules change every few days, and the parking judge can be fired by the mayor. The town has plenty of rules. Does it have the rule of law?

The rule of law is the condition in which rules bind rulers and ruled alike, marked by five elements: generality, publicity, stability, equal application, and independent enforcement.

Here is what each element asks, in plain words:

Generality: rules are general, not aimed at named people.
Publicity: rules are published before they bind.
Stability: rules do not change overnight.
Equal application: the rulers obey the rules too.
Independent enforcement: someone outside the rulers' control applies the rules.

The opposite is not "no laws", as you might guess. It is laws used in a different direction.

Rule by law is the use of law as a tool the rulers turn on everyone else while they themselves stay above it.

Worked example — the Ostrel check. Ostrel is illustrative, a made-up country with a written constitution that names a bill of rights and three branches. Check each element against what happens in practice.

Generality. Ostrel's laws are written as general rules. Result: met.
Publicity. Every law is printed in an official bulletin before it takes effect. Result: met.
Stability. Decrees rewrite the tax rules several times a month with no notice. Result: failed.
Equal application. A decree exempts ministers and their families from the tax and traffic laws. Result: failed.
Independent enforcement. The president can dismiss any judge at will. Result: failed.

Tally: 2 met + 3 failed = 5 elements.

In words: Ostrel has a written constitution and practices rule by law, not the rule of law. The design layer, what the text says, is written and looks generous. The practice layer, what actually happens, shows the rulebook does not bind the rulers. Having a constitution did not make Ostrel's government limited. Both layers here are empirical: you check the text and you check the evidence. Whether Ostrel's rulers ought to accept limits is the normative layer, and Ostrel's own charter already says they should.

Here is a limitation of the five-element checklist. It is a classroom model, not a measuring tape. Real systems meet each element more or less, not all or nothing, and two careful observers can weigh the same evidence differently.

Misconception check. Students often think the rule of law means there are laws. That is tempting, because the phrase has "law" in it. But Ostrel has laws, a bulletin, and a written constitution, and its rulers still stand above all of it. The rule of law is about whom the laws bind, not how many laws there are.

Memory hook: rule of law binds the rulers; rule by law is a tool the rulers hold.

5. Divide power two ways: separation of powers versus federalism

Picture a large company. One way to split power is by function: one department writes the policies, another carries them out, and an internal review board judges disputes. Another way is by level: a head office sets company-wide rules while each regional branch sets its own local ones. A company can do both at once. So can a country.

Separation of powers is the horizontal division of power among branches of government, such as a legislature, an executive, and a judiciary, each holding a different kind of power.
Federalism is the vertical division of power between levels of government, such as a national government and the states or provinces, each with powers of its own.

The U.S. Constitution does the horizontal split in its first three articles: Articles I, II, and III vest the legislative, executive, and judicial power in three different places. It also divides power vertically between the national government and the States. Week 10 takes federalism up in full; this week you only need to tell the two directions apart.

A split on paper does nothing unless each part can push back, as you saw with Ostrel.

Checks and balances are the tools that let each branch resist the others, such as a veto, an override, approving appointments, controlling spending, and a court setting an act aside.

Worked example — which division is it? Sort each illustrative arrangement.

A fictional federation lets its provinces set their own school calendars while the national government sets the currency. Power is split between levels. This is federalism.
In a made-up country, the legislature passes laws, a separate executive carries them out, and courts decide cases. Power is split among branches. This is separation of powers.
In that same made-up country, the executive may veto a bill, and the legislature may override the veto by a larger vote. These are tools that let one branch resist another. These are checks and balances.

In words: ask "between branches, or between levels?" and then ask "what tool lets one part resist another?"

Misconception check. Students often treat separation of powers and federalism as the same division. That is tempting, because both "split power" and the U.S. has both. But separation of powers runs sideways, among branches, and federalism runs up and down, among levels. A unitary country with one level of government can still separate its branches.

Memory hook: branches sideways, levels up and down.

6. Close-read the design: Federalist No. 10 and No. 51

Before you read anyone's argument, you ask who wrote it, when, and for whom. In 1787 and 1788, three writers defending the new Constitution published their essays under a single shared name.

Publius is the shared pen name under which Hamilton, Madison, and Jay published the 85 essays of The Federalist in 1787 and 1788.

This course quotes the essays only as the Avalon Project prints them.

Worked example — sourcing, then the fragments by kind. You source the essays first, then sort each pinned fragment as empirical-leaning or normative.

Sourcing. The Federalist is 85 essays published under the pen name Publius. No. 10 is Madison's (1787). No. 51 (1788) carries the Avalon Project header "HAMILTON OR MADISON"; the editors of Madison's papers call the old dispute settled in Madison's favor, so you credit No. 51 to Madison and you do not treat the header as a live dispute. The essays came 1788 − 1787 = 1 year apart.
The design problem, No. 10. Madison names the danger. "By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community." The edition spells it "adversed", and this course keeps that spelling. This is a definition, a concept you apply, so you do not sort it as a claim. Notice that a faction can be a majority.
Fragment A, No. 51. "If men were angels, no government would be necessary." Kind: empirical-leaning, a conditional claim about human nature that the argument asks you to accept as true.
Fragment B, No. 51. "you must first enable the government to control the governed; and in the next place oblige it to control itself". Kind: normative, a design rule you can restate in three words: create and empower first, then limit.
Fragment C, No. 51. "Ambition must be made to counteract ambition." Kind: normative, a design prescription that rests on an empirical-leaning assumption that officeholders are ambitious.
Tally. 1 empirical-leaning + 2 normative = 3 fragments from No. 51; with the No. 10 definition, 3 + 1 = 4 fragments read.

Put in plain words, the argument you have read runs like this. People are not angels, so government is needed. But the people who govern are not angels either. So the design must first give government power and then make it check itself. The way to do that is to give each branch the means and the motive to resist the others, so that one officeholder's ambition blocks another's. Fragment B is Section 1's three jobs in Madison's words, and Fragment C is the reason checks and balances exist.

In practice (your tools). Open the Avalon Project page for No. 51 and use your browser's find command (Ctrl+F on Windows, Command+F on a Mac) to search for the word ambition. Compare the sentence you find, letter by letter, with the one quoted here before you use it anywhere. Then read the header at the top of the page, so you see the "HAMILTON OR MADISON" line for yourself.

Misconception check — the header and the misquote. Students often read the "HAMILTON OR MADISON" header as a live mystery, or quote the famous line from memory as "ambition must counteract ambition". Both are tempting: the header looks unresolved, and the short version sounds right. But the editors of Madison's papers call the dispute settled in his favor, and the pinned sentence is "Ambition must be made to counteract ambition." Chatbots make both slips, so check the page, not your memory.

Memory hook: not angels, so enable, then oblige; ambition against ambition.

7. Weigh the debate: can paper constrain power?

Back to the hiking club and the expensive bus. One member says the bylaws worked, because everyone could point to the rule that was broken. Another says they failed, because the bus was booked anyway. A third says both are half right. The rule mattered, and it mattered only because members were willing to act on it.

That small argument is this week's open question, and it has an empirical side and a normative side. Can a written constitution actually constrain the people who hold power?

The coordination case is the argument that a written constitution constrains power by giving citizens and officials a shared, visible standard, so they can see when a line is crossed and act together.

Proponents of the coordination case argue that a text is a focal standard. Without it, every complaint about an abuse of power is one person's opinion against another's. With it, a whole country can point to the same line at the same moment. On this view, the club members could act together only because the spending cap was written down.

Critics respond with two worries you should be able to state.

A parchment barrier is a limit that exists only in words on paper, which critics say cannot restrain power unless people and institutions enforce it.
Constitutional hardball is officeholders keeping to the letter of the rules while using them to defeat the purpose the rules were written to serve.

Ostrel is the critics' picture: a generous charter that binds no one. Constitutional hardball is the subtler danger, because each move can be defended as technically allowed. On this view, the paper is the last thing that protects anyone.

A third position holds that text and enforcing practices are complements, not substitutes. The text supplies the standard; courts, conventions, and citizens willing to act supply the force. Present it as one more position, not as the answer, because the other two sides can each claim it supports them.

Notice that Madison's own design is a reply to the parchment worry. No. 51 does not trust the words to hold. It sets ambition against ambition, so the structure enforces itself.

Pause and think, choosing one of these two:

(a) State the strongest case for the position you find less convincing, the coordination case or the parchment-barrier critique, as its best defender would put it.
(b) Think of a rulebook in your own life, at school, at work, or in a club, and say whether it binds the people in charge, and what makes it bind or fail to bind.

Misconception check. Students often treat this debate as already settled, in one of two directions: "it's in the Constitution, so it's protected" or "it's only paper, so it means nothing". Both are tempting shortcuts. But a written text and the practices that enforce it are separate things, and how much each one contributes is exactly what the debate is about. Each side gets its strongest case here, and the verdict is yours.

Memory hook: a rulebook on paper — not yet a rulebook that binds.

Key terms

constitution — The fundamental set of rules for how a political system is organized: which offices exist, what powers they hold, and, where the rules bind, what they may not do. (first used: 1. Define a constitution: create, empower, limit)
constitutionalism — The practice of a political system's fundamental rules actually binding the people who rule, so that officeholders stay within the limits the rules set. (first used: 1. Define a constitution: create, empower, limit)
written constitution — A codified constitution: one supreme document that gathers a system's fundamental rules in a single text, as the U.S. model does. (first used: 2. Sort constitutions by form: written versus unwritten)
unwritten constitution — An uncodified constitution: fundamental rules spread across ordinary statutes, judicial decisions, and conventions instead of one supreme document, as the U.K. model does. (first used: 2. Sort constitutions by form: written versus unwritten)
convention — An unwritten rule of political practice that officeholders treat as binding even though no single statute sets it down. (first used: 2. Sort constitutions by form: written versus unwritten)
parliamentary sovereignty — The principle that Parliament is the highest lawmaking authority, so no single supreme document stands above the laws it passes. (first used: 2. Sort constitutions by form: written versus unwritten)
entrenchment — Making certain rules harder to change than ordinary law, for example by requiring supermajorities, as Article V of the U.S. Constitution does for amendments. (first used: 3. Measure entrenchment: Article V's thresholds)
rule of law — The condition in which rules bind rulers and ruled alike, marked by five elements: generality, publicity, stability, equal application, and independent enforcement. (first used: 4. Separate the rule of law from rule by law)
rule by law — The use of law as a tool the rulers turn on everyone else while they themselves stay above it. (first used: 4. Separate the rule of law from rule by law)
separation of powers — The horizontal division of power among branches of government, such as a legislature, an executive, and a judiciary, each holding a different kind of power. (first used: 5. Divide power two ways: separation of powers versus federalism)
federalism — The vertical division of power between levels of government, such as a national government and the states or provinces, each with powers of its own. (first used: 5. Divide power two ways: separation of powers versus federalism)
checks and balances — The tools that let each branch resist the others, such as a veto, an override, approving appointments, controlling spending, and a court setting an act aside. (first used: 5. Divide power two ways: separation of powers versus federalism)
Publius — The shared pen name under which Hamilton, Madison, and Jay published the 85 essays of The Federalist in 1787 and 1788. (first used: 6. Close-read the design: Federalist No. 10 and No. 51)
faction — In Federalist No. 10, a group of citizens, whether a majority or a minority, united by a common passion or interest that runs against other citizens' rights or the community's lasting interests. (first used: 6. Close-read the design: Federalist No. 10 and No. 51)
coordination case — The argument that a written constitution constrains power by giving citizens and officials a shared, visible standard, so they can see when a line is crossed and act together. (first used: 7. Weigh the debate: can paper constrain power?)
parchment barrier — A limit that exists only in words on paper, which critics say cannot restrain power unless people and institutions enforce it. (first used: 7. Weigh the debate: can paper constrain power?)
constitutional hardball — Officeholders keeping to the letter of the rules while using them to defeat the purpose the rules were written to serve. (first used: 7. Weigh the debate: can paper constrain power?)

Summary

A constitution creates, empowers, and, where constitutionalism is practiced, limits.
Written or unwritten is a question of form; whether the rules bind is a separate question of substance.
Entrenchment makes basic rules hard to change: under Article V, 38 of 50 States ratify and 13 can block.
The rule of law binds rulers and ruled alike through five elements; rule by law is a tool the rulers hold.
Separation of powers splits power among branches; federalism splits it among levels; checks and balances make the split work.
Federalist No. 10 names the danger of faction; No. 51, credited to Madison, sets ambition against ambition.
Whether paper can constrain power is contested; state each side fairly and decide for yourself.

Check your understanding

Work these before looking at the answers — they are ungraded, and the answers (with reasoning) are at the bottom of the page.

A made-up federation, Pellmark, has 28 provinces, and its charter says an amendment must be ratified by three fourths of the provinces. How many provinces must ratify, and what is the smallest group of provinces that can block an amendment?
In an invented city, every parking rule is posted online and applies to everyone, except that the city council's own members are excused from parking fines by a council vote. Which element of the rule of law fails, and why does posting the rules online not fix it?
Sort each illustrative arrangement as separation of powers, federalism, or checks and balances. Arrangement (a): a regional government runs its own health clinics while the national government runs the army. Arrangement (b): a governor's choice for a judge must be approved by the state senate. Arrangement (c): one body writes the laws and a separate body enforces them.
A classmate's notes say, "Federalist No. 51, by Hamilton: ambition must counteract ambition." Name the two things wrong with that note.

Answers (worked reasoning — read after attempting)

Three fourths of 28 is 28 × 3 ÷ 4 = 21, so 21 provinces must ratify. If 8 provinces refuse, at most 28 − 8 = 20 can ratify, which falls short of 21. If only 7 refuse, 28 − 7 = 21 can still ratify. So the smallest blocking group is 8 provinces. The method is the one from Section 3: find the threshold, then find the smallest refusal that drops the yes side below it.
Equal application fails, because the rulers have exempted themselves from rules everyone else must obey. Posting the rules online meets publicity, a different element. A system can meet one element and fail another, and a city whose council sits above its own parking rules is moving toward rule by law.
Arrangement (a) is federalism: power is split between levels of government. Arrangement (b) is checks and balances: one branch can resist another's appointment. Arrangement (c) is separation of powers: power is split among branches. If you mixed up (a) and (c), use the hook: branches sideways, levels up and down.
First, the credit: the "HAMILTON OR MADISON" header records an old dispute that the editors of Madison's papers call settled in Madison's favor, so the essay should be credited to Madison. Second, the quotation: the pinned sentence reads "Ambition must be made to counteract ambition." Writing a famous line from memory is exactly how a misquote spreads, so check the page.

Next up in this module: the Readings & Resources page, the lecture tutorial, the practice set, and the quiz. Next week, the model of parliamentary versus presidential government puts your separation of powers to work.

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