Lecture: Constitutions, Constitutionalism & the Rule of Law
Lecture script · about 15–20 minutes spoken · Week 6
Opening
Picture a student hiking club with a short set of bylaws. One rule says the treasurer can't spend more than 150 dollars without a vote of the members. Then the treasurer books a 40-seat bus for 600 dollars and tells no one. Some members say the bylaws settle it. Others shrug and say the bylaws are only paper.
You'll meet that argument again and again. Maybe you're a nursing student reading the bylaws of a professional association. Maybe you're a business major whose company charter limits what its board may do. Maybe you'll help a tenants' group write its rules someday. Every time someone holds power under rules, the same two questions come up. What do the rules say? And do the rules actually bind the people in charge?
Here's where we are. Week 1 gave you the line between empirical and normative claims. 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. In this lecture I'll ask what a constitution does, sort constitutions by form, count the States it takes to change one, check a country against the rule of law, split power two ways, and read Madison's design. Then we'll weigh whether paper can hold power back at all. Next, in Week 7, we turn to legislatures and executives.
1. What a constitution does
Go back to the hiking club. Its bylaws do three different things. They create offices, like president and treasurer. They empower those offices, so the treasurer can pay the club's bills. And they try to limit them, with that spending cap.
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.
That's why we need 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 a rulebook you can hold. The second names a practice you can only watch.
Here's a link back to Week 2. Legal-rational authority rests on rules and the office, not on the person. A constitution is the rulebook that kind of authority rests on. The treasurer can pay the bills because the bylaws create the office, not because of who the treasurer is.
Now hear two lines from the U.S. Constitution, signed in 1787. Article I, Section 1 says, "All legislative Powers herein granted shall be vested in a Congress of the United States". That line creates an office and empowers it. Amendment I says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". That line limits the same Congress. The first ten amendments were ratified in 1791, so that limit arrived 4 years after the signing.
Pause and try this. A regime prints a handsome constitution and then ignores every limit in it. Does it have a constitution, constitutionalism, both, or neither?
Think about which word names the paper and which names the practice.
Here's the answer. It has a constitution but not constitutionalism, because the rulebook exists and doesn't bind the people who rule.
Keep this line: create, empower, limit, and the third job is the one that can fail.
2. Written and unwritten
Picture two neighborhood associations. One keeps every rule in a single binder, 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. The second association still has rules. They're spread out.
Countries split the same way. 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. Article VI even names its own rank, calling the text "the supreme Law of the Land". 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.
Two more words make the British model make sense. A convention is an unwritten rule of political practice that officeholders treat as binding even though no single statute sets it down. And parliamentary sovereignty is the principle that Parliament is the highest lawmaking authority, so no single supreme document stands above the laws it passes.
Here's the move I want you to make every time. Form asks where the rules live. Substance asks whether they bind. Those are separate questions. Unwritten doesn't mean unconstrained, because the British rules bind officeholders in practice. And written doesn't mean self-enforcing, as you'll see with a made-up country called Ostrel in a few minutes.
Pause and try this. A friend says, "Britain has no written constitution, so its government can do anything it likes." Which question is your friend mixing up with which?
Separate where the rules live from whether they bind.
Here's the answer. Your friend is mixing up form with substance, because missing one document is not the same as missing rules that bind.
So when you size up any constitution, ask the form question and the substance question one at a time.
3. Entrenchment: counting the States
Think about a club whose rules can be changed by a simple majority at any meeting. Whoever shows up on a slow night can rewrite everything. Now picture a club that needs a big supermajority to change its rules. The second club's rules are harder to change, and that's on purpose.
That idea is 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. In words, proposing an amendment takes two thirds of both Houses of Congress, or a convention that two thirds of the States call for, and ratifying it takes three fourths of the States.
Let's count the States together. The Senate has 100 members, two from each State, so there are 100 divided by 2, which is 50 States. Three fourths of 50 is 50 times 3, divided by 4, and that comes to 37.5. A State can't ratify by half, so ratification needs at least 38 States.
Now flip it. How few States can stop an amendment? If 13 States refuse, then at most 50 minus 13, which is 37, can ratify. That falls short of 38. So 13 States can block an amendment.
Notice what the numbers settle and what they don't. That 13 States can block a change is a design fact you can check in the text. Whether that's wise protection or an undemocratic veto is a normative question. Proponents of strong entrenchment argue that basic rules shouldn't swing with every majority. Critics respond that a rulebook too hard to change can lock in old mistakes.
Pause and try this. A classmate rounds three fourths of 50 down to 37 and says 37 States can ratify. What went wrong?
Think about what half a State would mean.
Here's the answer. Three fourths of 50 is 37.5, and since a State can't ratify by half, the threshold rounds up to 38, not down to 37.
Keep this pair together: 38 to ratify, 13 to block.
4. Rule of law and 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 mayor can fire the parking judge. 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 5 elements: generality, publicity, stability, equal application, and independent enforcement. Generality means rules aren't aimed at named people. Publicity means they're published before they bind. Stability means they don't change overnight. Equal application means the rulers obey them too. Independent enforcement means someone outside the rulers' control applies them.
The opposite isn't "no laws". Rule by law is the use of law as a tool the rulers turn on everyone else while they themselves stay above it.
Now meet Ostrel. Ostrel is illustrative, a made-up country with a written constitution that names a bill of rights and three branches. Let's check it. Its laws are written as general rules, so generality is met. Every law is printed in an official bulletin before it takes effect, so publicity is met. But decrees rewrite the tax rules several times a month with no notice, so stability fails. A decree exempts ministers and their families from the tax and traffic laws, so equal application fails. And the president can dismiss any judge at will, so independent enforcement fails. That's 2 met and 3 failed, for 5 elements in all.
Ostrel has a written constitution and practices rule by law. What the text says is generous. What actually happens shows the rulebook doesn't bind the rulers. Having a constitution didn't make Ostrel's government limited.
Pause and try this. In Ostrel, every law is published before it takes effect. Why isn't that enough to give Ostrel the rule of law?
Count how many of the elements Ostrel actually meets.
Here's the answer. Publicity is only one of 5 elements, and Ostrel fails stability, equal application, and independent enforcement, so its rulers still stand above the law.
Keep this line: the rule of law binds the rulers, and rule by law is a tool the rulers hold.
5. Two ways to divide power
Picture a large company. One way to split power is by function: one department writes the policies, another carries them out, and a review board judges disputes. Another way is by level: a head office sets company-wide rules, and each regional branch sets its own local ones. A company can do both at once, and 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. In the U.S. Constitution, Articles I, II, and III vest the legislative, executive, and judicial power in three different places. 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. Week 10 takes federalism up in full. For now, you only need the two directions.
A split on paper does nothing unless each part can push back. 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.
Pause and try this. In a fictional federation, the provinces set their own school calendars while the national government sets the currency. Is that separation of powers or federalism?
Ask whether the split runs between branches or between levels.
Here's the answer. It's federalism, because the power is divided between levels of government, not among branches.
Keep the picture: branches sideways, levels up and down.
6. Madison's design
Before you read anyone's argument, you ask who wrote it and when. In 1787 and 1788, three writers defending the new Constitution published 85 essays under one 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.
Start with the problem. In No. 10, from 1787, Madison worries about the 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. Notice that a faction can be a majority.
Now the answer, in No. 51, from 1788. The page at the Avalon Project carries the header "HAMILTON OR MADISON". That header records an old authorship dispute, and the editors of Madison's papers call it settled in Madison's favor. So we credit No. 51 to Madison, and we don't treat the header as a live mystery.
Here are the three lines this course quotes. First: "If men were angels, no government would be necessary." That's empirical-leaning, a claim about human nature. Second: "you must first enable the government to control the governed; and in the next place oblige it to control itself". That's normative, a design rule, and it's our three jobs again: create and empower first, then limit. Third: "Ambition must be made to counteract ambition." That's normative too, a design rule resting on the assumption that officeholders are ambitious. So you have 1 empirical-leaning line and 2 normative lines from No. 51, and with the No. 10 definition, 4 fragments read.
In plain words, people aren't angels, so we need government. But the people who govern aren't angels either. So give each branch the means and the motive to resist the others, and let one officeholder's ambition block another's.
Pause and try this. Someone quotes No. 51 as "ambition must counteract ambition." What's missing?
Say the sentence the way the course quotes it, slowly.
Here's the answer. The words "be made to" are missing, because the pinned sentence is "Ambition must be made to counteract ambition." The design is about making it happen.
So check a famous line against the page, never against your memory.
7. Can paper hold power back?
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 got booked anyway. A third says both are half right.
That's this week's open question. Proponents of the coordination case make the first member's point. 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. Without the text, every complaint is one person's opinion against another's.
Critics respond with two worries. 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. Ostrel is their picture. And constitutional hardball is officeholders keeping to the letter of the rules while using them to defeat the purpose the rules were written to serve. Each hardball move can be defended as technically allowed, which is what makes it hard to stop.
A third position says text and enforcing practices are complements, not substitutes: the words supply the standard, and courts, conventions, and citizens supply the force. That's one more position, not the answer. And notice that Madison's own design is a reply to the parchment worry, because it sets ambition against ambition instead of trusting the words alone.
Pause and try this. Which side of the debate does Ostrel support, the coordination case or the parchment-barrier critique?
Think about what Ostrel's generous charter actually did.
Here's the answer. Ostrel supports the parchment-barrier critique, because its written limits bind no one when no one enforces them.
The verdict on the whole debate is yours, and you'll argue it this week.
Closing
Let me pull it together. A constitution creates, empowers, and limits, and constitutionalism is the practice of the limits actually holding. Written or unwritten is a question of form, and 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 5 elements, while rule by law is a tool the rulers hold. Separation of powers splits power among branches, federalism splits it among levels, and checks and balances make the split work. Madison's No. 51 sets ambition against ambition. And whether paper can hold power back is yours to argue.
Next in this module come the slide deck, the Readings and Resources page, the lecture tutorial, the practice set, and the quiz. Then, in Week 7, Political Institutions I: Legislatures & Executives, we'll see the separation of powers built two rival ways.
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