The supreme law of the land
The Constitution declares itself to be “the supreme Law of the Land” (Supremacy Clause). If we are to take this declaration seriously, we must first take seriously the concept of the rule of law; understand what “law of the land” (lex terrae) means, particularly when modified as supreme; and understand the basis for the legitimacy of the Constitution’s declaration.
The Rule of Law
The Oxford English Dictionary defines “rule of law” as:
The authority and influence of law in society, especially when viewed as a constraint on individual and institutional behavior; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.
The OED does not let us down; this is a wonderful pithy summary of the concept. But, as is the nature of dictionary definitions, it defines the concept in terms of other concepts that themselves required definition.
The law itself is a system of “publicly disclosed legal codes and processes.” The codification of law is generally held to have begun with the Code of Hammurabi, but this turns out to not be quite correct. The oldest surviving written codification of law is the code of Ur-Nammu, which is perhaps three centuries older (ca. 2050 BC) but survives in only fragmentary form. The Sumerians apparently had even earlier codes, but no fragments survive. Nevertheless, the Code of Hammurabi deserves its place of honor, because we have it in something close to complete form, and because it establishes legal principles still applicable today. These include the presumption of innocence and the right of both sides in a dispute to have their evidence heard.
Hammurabi claimed that his code was revealed to him by Shamash, the Babylonian god of justice. This was obviously important for establishing the legitimacy of the law. One does not question a deity. Its purported divine origin allowed the Code to fulfill its secular purpose, which was to allow judgment to be delegated to lesser officials than the king with some assurance that they would rule consistently with each other and with the will of the king. But the effects were more sweeping than that, and, quite likely, largely unanticipated. One does not amend the word of a deity, so the published code came to bind the king as much as his officers. The code was public, so it was possible at least in principle for any subject to conform his or her behavior to the code. A codified law does not merely judge past behavior; it shapes future behavior.
Must a codification of law be written? Not necessarily, if the society in question has a strong oral tradition. The codification of law then exists in the collective memory of the community, which is typically centered in its elders (old men, senex, Senators). But this traditional law does not scale well to large societies. I think it is no coincidence that Blackstone’s Commentaries on the Laws of England, which de facto codified much of the traditional English common law, was published in 1765-1770, at the peak of British imperial expansion. A written code of law can be transmitted across great distances and over long periods of time. We have the Code of Hammurabi available around the globe four millennia after it was written.
Closely associated with codified laws that constrain behavior are regular processes for enforcing the law. The black robes worn by judges, the use of wonderfully quaint phrases like “Now comes John Doe …” in legal filings, and other such traditions are but the surface of a complex and still only partially codified tradition of legal process. Legal process helps ensure that all the relevant (and none of the irrelevant) evidence is heard, that all the right legal arguments are made, and that the law is applied correctly and impartially. It also magnifies the majesty of the law. That is unquestionably important in upholding its legitimacy.
A critical aspect of rule of law is that is applies equally to all persons, including those in government. Nazi Germany was planted thick with laws; but it did not have rule of law, because Adolph Hitler was regarded as above the constraints of any law, and a Führerbefehle was binding on every Nazi subject. Sovereign immunity was not an invention of Hitler; it was a throwback to the absolute monarchies of previous ages, reemerged in a particularly hideous form. We like to say that all citizens of the American republic are sovereign, but it would be more correct to say that none are. This is a paradox we will revisit again.
The full meaning of rule of law is illustrated by what is not the rule of law. We have already given one example, that of the autocrat. An autocrat is not defined by the fact that he issues laws; Hammurabi and Moses both did that, in the name of their respective deities, but they are properly honored as lawgivers. Hitler is not. Not only did Hitler exempt himself from his own decrees, but he saw to it that punishment was imposed retroactively for actions that were not illegal when the actions were taken (ex post facto); he imposed punishments by simply decreeing persons and whole classes of persons to be outlaws (caput luminum); his decrees were often secret, so that it was impossible to know if a course of action was legal unless its legality was expressly stated (and probably not always then). The latter inverts the important principle under rule of law that any course of action not expressly prohibited is permitted, which is closely tied to the presumption of innocence.
Mob democracy is also not the rule of law. A mob is just a many-headed autocrat. If the mob does not like you, it will string you up, and it don’t need no stinkin’ badges. We agree with James Bovard: “.Democracy must be something more than two wolves and a sheep voting on what to have for dinner.” John Adams expressed the Founder’s skepticism of democracy in an 1814 letter:
Remember Democracy never lasts long. It soon wastes exhausts and murders itself. There never was a Democracy Yet, that did not commit suicide. It is in vain to Say that Democracy is less vain, less proud, less selfish, less ambitious or less avaricious than Aristocracy or Monarchy. It is not true in Fact and no where appears in history. Those Passions are the same in all Men under all forms of Simple Government, and when unchecked, produce the same Effects of Fraud Violence and Cruelty.”
We are now forming a republican government. Real liberty is neither found in despotism or the extremes of democracy, but in moderate governments.
Supreme Law of the Land
The Constitution is the supreme law of the land. It is the cornerstone on which the entire legal and political structure of the federal government of the United States is built. Any law that conflicts with the Constitution is considered null and void.
Furthermore, the Constitution is law. It is a codified set of rules constraining every branch of the federal government and also binding on the state governments and the people. it is not a mere political document whose interpretation is a matter of policy preference. It has force.
We are unabashed originalists of the textualist variety. Although we look to the writings of the Founders to shed light on what they understood the text of the Constitution to mean, it is the text itself that is decisive.
Law of the Land
This is a term of art in law, meaning the collective body of both case law and statutory law binding on all residents of a region. It also includes requirements of due process. Anciently, it included canon law, but that was later explicitly excluded by the Free Exercise Clause.
Supreme
The Constitution is the highest law of the United States. Any other law that conflicts with the Constitution is null and void. Likewise, federal laws supersede any state or local law, so long as the federal law is constitutional. In addition, treaties made under the Constitution override state law unless they violate provisions of the constitution. Ware vs. Hilton (1796) found that a Virginia statute seizing debt payments to British creditors was nullified by the Treaty of Paris. On the other hand, Reid v. Covert (1957) found that treaties, and laws made in accordance with them, must comply with the Constitution.
The Legitimacy of the Constitution
The Constitution derives its legitimacy from its ratification by the citizens of the original thirteen United States acting through their state legislators. The residents of states that were subsequently admitted to the Union accepted the legitimacy of the Constitution via the application of their territorial legislatures to become states.
There was an important caveat on the original ratification process. Several states refused to ratify until they had reassurances that the Constitution would be promptly amended to include a Bill of Rights. In addition to protecting widely recognized natural rights, this had to make it plain that powers not explicitly granted to the federal government would be retained by the states or the people. It follows that the legitimacy of the Constitution hinges particularly on its Bill of Rights, which was duly added once the Constitution itself was ratified. It also follows that the legitimacy of the federal government hinges on it holding few and enumerated powers.
There remain three issues regarding legitimacy, which, while we are examining them here in the context of the Constitution, are really issues with all law. I regard it as beyond dispute that, once a person has consented to be bound by a law, he or she is bound; they can legitimately be held to their word by their fellow citizens who have also consented to the law. What of those who consistently opposed the law when it was under debate? Or those who were born after the law was enacted, and come into their majority opposed to the law? Or those who claim a right of revolution because of deep dissatisfaction with the government?
The legitimacy of the Constitution as binding on those who opposed its ratification rests on three things. First, the ratification followed democratic processes already in place and previously assented to by the citizens of the states. Second, its ratification required a significant supermajority of states, reflecting broad consensus among citizens. Third, the Constitution was not manifestly unjust.
The third point requires some explanation. We freely admit the Constitution was and is imperfect. Two indictments against the original document, aside from the lack of a Bill of Rights (which we have already discussed and which was promptly redressed), were the Fugitive Slave Clause and the Three-Fifths Compromise. Both tacitly acknowledged the existence of slavery in some of the states. However, neither established slavery under federal law. The existence of slavery was an evil that already existed and an injustice the Constitution did not create. We will have more to say about this in future posts. The Constitution was explicitly framed to establish a government whose function was to protect its citizen’s rights. Those protected by the law — which did not include slaves in 1787 — were obligated to uphold the law. One can make a moral case that slaves had no such obligation, but with the abolition of slavery, that case cannot be made by anyone alive today.
The second point is straightforward: The Constitution required ratification by three-fourths of the states, a fairly substantial supermajority. Broad consensus was needed to establish its legitimacy.
The first point comes down to this: The citizens were already bound to accept and support political decisions made through existing democratic mechanisms.
What of those who come into their majority disinclined to accept the legitimacy of the Constitution and the laws? The Founders took the ancient view of law as covenant. A young citizen was raised from helplessness by his parents. He inherited his father’s status, rights, and (ultimately) property. In return, he was morally obligated to acknowledge the laws his father had acknowledged.
But the Constitution also has mechanisms for its amendment. A young citizen, or a disenchanted older citizen, has the right and duty to petition for redress, including to call for amendment of the Constitution where he finds it flawed. This is the escape valve that makes the law as a covenant tolerable. It follows that much of the legitimacy of the Constitution rests on its capacity to be amended.
In all this discussion of legitimacy, we have assumed as given that legitimacy arises from the consent of the people. But this is not the ancient pattern of lawgivers, who uniformly claimed divine sanction for the laws they gave. In the constitutional American republic, the sanction of the people, rather than the sanction of God, makes the law legitimate. This is a novel thing, and the tendency for more religious Americans to see a divine Hand behind the establishment of the Constitution reflects our lingering discomfort with it. Annuit cœptis appears as one of the mottos on the reverse of the Great Seal of the United States, next to the All-Seeing Eye. The notion that the Constitution was framed under the hand of God is deep in our national DNA, and contributes significantly to the sense of legitimacy many Americans feel for the Constitution. We believe that it follows that the Free Exercise Clause is unusually important in its contribution to constitutional legitimacy.
This creates a tension. If the legitimacy of the Constitution comes from the people alone, then they are entitled to amend it all they wish, or even to abolish it entirely. If it is divinely inspired, then amending the Constitution must be regarded as a sacred undertaking. We find ourselves in agreement with John Adams:
But should the people of America once become capable of that deep simulation towards one another, and towards foreign nations, which assumes the language of justice and moderation, while it is practising iniquity and extravagance, and displays in the most captivating manner the charming pictures of candour, frankness, and sincerity, while it is rioting in the rapine and insolence, this country will be the most miserable habitation in the world. Because we have no government armed with the power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge, and licentiousness would break the strongest cords of our Constitution, as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.
Adams was no sectarian. The key is not in particulars of theology, but in the capacity for self-control, the desire to cultivate civic virtue, and the sense that some things are sacred. We think of Russell Kirk’s mystical community of souls: Those who have gone before, those now living, those yet to be born. It is in the public’s sense of duty, to faithfully transmit a sacred patrimony, that the future of a Constitution amendable by the voice of the people lies.