Freedom and the Rule of Law

by Peacock, Anthony A.; Watson, Bradley C.S.; Whelan, Edward; Rabkin, Jeremy; Postell, Joseph; Malcolm, Joyce Lee; Butler, Katharine Inglis; Fisher, Louis; Rossum, Ralph A.; Strickler, V James

• ISBN13: 9780739136188
• ISBN10: 0739136186
• Format: Hardcover
• Copyright: 2009-12-30
• Publisher: Lexington Books

Summary

Freedom and the Rule of Law takes a critical look at the historical beginnings of law in the United States, and how that history has influenced current trends regarding law and freedom. Anthony Peacock has compiled articles that examine the relationship between freedom and the rule of law in America. Although this is a theme that has been a perennial one since America's founding, it is also one of particular importance today, and this book explains how history makes this apparent. The rule of law is fundamental to all liberal constitutional regimes whose political orders recognize the equal natural rights of all, and whose purpose is to protect those natural rights in addition to the general welfare. The rule of law was essential to achieving both of these ends and to reconciling them where necessary. But just how free is America today? It was certainly within the contemplation of the Founders that the federal judiciary would have a significant role in interpreting the Constitution, federal laws, and treaties, but it would be difficult to argue that those who framed and ratified the Constitution contemplated a role for the courts, particularly for the United States Supreme Court, of the magnitude they have today. The writers take the reader far back into history to the very roots of American Law by examining the English common law roots that provided the foundation for the rule of law in America. This book explores these phenomena and other recent developments in American freedom through history.

Author Biography

Anthony A. Peacock is associate professor of political science and director of the Project on Liberty and American Constitutionalism at Utah State University. He is the author most recently of Deconstructing the Republic: Voting Rights, the Supreme Court, and the Founders' Republicanism Reconsidered (2008) and A Brief Guide to The Federalist Papers (forthcoming).

Table of Contents

Acknowledgments	p. vii
Introduction: American Constitutionalism, Freedom, and the Rule of Law	p. 1
The Origins of the Rule of Law, Administration, and the Anticipated Growth of the American State
Freedom and the Rule of Law; The Ingenious English Legacy	p. 23
Regulation, Administration, and the Rule of Law in the Early Republic	p. 41
Constitutional Cassandra: The Prophetic Fears of Brutus, the Anti-Federalist	p. 71
Constitutional Interpretation and the Rule of Law
Antonin Scalia and the Rule of Law: The Textualist Foundation of the "Law of Rules"	p. 115
Original-Meaning Jurisprudence, Judicial Restraint, and Democratic Freedom	p. 137
Is It Unnatural to Shun Foreign Precedents?	p. 155
Progressivism and the Decline of the Rule of Law	p. 179
War, National Security, and the Rule of Law
National Security Law: The Judicial Role	p. 203
When the Rule of Law Can Undermine the Rule of Law: Hamdi and The Federalist on War and Necessity	p. 227
Voting Rights, Representation, and the Rule of Law
A Decline in Adherence to Traditional Districting Standards Undermines Fair Representation in the United States	p. 259
Index	p. 287
About the Contributors	p. 291
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