That government be administered by the stable hand of law, and not the unrestrained arm of unpredictable whim is universally acknowledged to be an essential prerequisite for any free government to exist. Yet the ways nations choose to achieve this result may be counted to be as many as there are nations themselves. I am concerned here to briefly outline what, to my mind, are the principal ways the Constitution of the United States establishes a free government under law. I would hope that after having read this, I have succeeded in informing the reader so as to provoke their curiosity to explore the matter further.
Adams’s phrase, “a government of laws, and not of men”, was penned for the Constitution of Massachusetts, and is the final phrase in a sentence about the separation of powers.[1] Indeed the famous dissent in Morrison v Olson[2]expressly takes this phrase and applies it to the federal government. Interestingly, the dissent is now widely recognized as the “governing law” as Prof. Joshua Braver notes.[3] The long and the short of it is, that the first security for a government by law which the Framers had in mind when shaping the Constitution was the separation of the executive, legislative, and judicial powers from each other. Thus, the first meaning of the phrase that the government be of laws and not of men concerns the structure of the Federal Constitution. The institutions of the government have power separated between them. Thus, a despotism may not readily take control of the whole power of the nation, exercising arbitrary power to the destruction of individual rights and freedoms.
I use the phrase of ‘arbitrary power’ quite deliberately, because I mean to invoke the constitutional context of the Framing. Inheritors of the legacy of the English Glorious Revolution, the Framers were keenly aware of the ability of concentrated power in a single set of hands to cause “Arbitrary Power” to be exercised (English Bill of Rights 1689, Recitals). One of the chief cornerstones of the Anglo-American constitutional tradition is, therefore, a government under a certainly established law, administered fairly and with due process. Hence, therefore, the Constitution provides for due process in the 5th and 14th Amendments. This itself is a necessary element in securing individual rights, as a judicial dictum of the Chief Justice of England, Lord Mansfield, widely quoted in American courts in the Founding era, makes clear. In the Proceedings Against the Dean of St Asaph (1784)[4] the matter at issue was libel apparently made against the government. The “very able judge”, as Chief Justice Marshall called him,[5] there notes that liberty under law is a precondition of a free society, whereas a State where the laws are oppressive or arbitrarily administered, stifles individual freedom and exercise of rights because the people are left in an uncertain state as to their position. If law rules, then liberty flourishes, like a vine attached to a support.
Next, the rule of law and not of the evanescent impulse of persons in power, or even of a tyrannous mob, is implied in the Preamble to the Constitution where it is “We the People” who frame the Constitution. First, the laws made by the people themselves through their representatives rule them, because they are a “free people” living under a free system of laws established by a people who cherished the “free System of English Laws” to borrow phrases from the Declaration of Independence. For arbitrary power, and not law made by themselves to be exercised over a people is for them to be rather in the condition of slaves and not equal citizens in the polity. Second, law made in the lengthy proceedings of the legislature represents the more mature and deliberative judgment of the people, and protects them against the unpredictable urges that might possess a mob at times. If these considerations apply to ordinary legislation, much more do they apply to the process of amending the Constitution contained in its Article V. It would be dangerous in the extreme, to the security of the nation, yes, but especially to the securing of the rights of the people, to allow the Constitution to be easily modified by a frenzied mob.
The system of the Constitution ensures a strict federalism whereby the constituent states are not only subdivisions of the one Republic, but in their own sphere exercise the true and sovereign authority of their citizens as Madison makes clear.[6] “Federalism, central to the constitutional design, adopts the principle that both the National and State Governments have elements of sovereignty the other is bound to respect” per Justice Kennedy speaking for Supreme Court in Arizona v. United States.[7] This is itself a safeguard of both good government, and free government, for reasons that to my mind are mutually interdependent. Subsidiarity naturally requires that decisions be made at that level at which the interests they seek to serve are best represented. Local interests are best represented at the local level. As such, the constituent states in their role as subdivisions of the Republic frame laws for their local needs better than the national government might, because the local people will have their local interests best accounted for at the local level. It would, for example, be absurd for a national statute to take care of very local and particular issues of criminality in Illinois, nor is it likely that legislative time at the national level would be best served considering such issues when they could just as well be considered in a legislature in Illinois, the part of the nation most directly affected and knowledgeable of the issue.
By this federalism also safeguards free government. It is when the interests of the people, their good, is not being served that they have recourse to demagogues who are destructive of their own liberty, because they perceive that the system of laws is not serving their interests. Writing in that classic on ensuring the free government of republics, the Discourses on Livy, Machiavelli makes some observations in this regard. He says that such a person would “show […] humanity” to the people, pandering to them, promising to remedy what they perceive to be destructive of their interests, whereas in reality the demagogue possesses an “ulterior motive” inimical to the liberty of the people.[8] This is a real threat to liberty, and it is essential to any free constitution to ensure that the laws be framed to serve the good of the people to reduce the risk of factions and dangerous persons arising in the political life of the nation, promising to heal problems caused by ill-thought constitutional structure. This is where the wisdom of the Founders is so clearly seen, because they ensured that in local matters the states possessed sovereign power to pursue local interests unhindered. Framing policy at the appropriate level allows for the cause to fit the effect, and the law to be well proportioned to the sort of need it seeks to address. We see here that it is not only law itself, but rather law framed at the appropriate level, which ensures that arbitrary government be warded off, and that rather good and free government persist. Because where law fails to work, strongmen like to step in. Federation is a great safeguard against that. Indeed, it is necessary for the efficient working of the free governmental structure established over the vast American land with a population spread into every corner of its continental breadth.
A final point I wish to make here concerns the 14th Amendment. One of the misfortunes of the Constitution before the incorporation of the Bill of Rights by implication into the constitutions of the states via the 14th Amendment was that the states could conceivably violate the rights and liberties of their citizens, should they amend their state constitutions to permit that to be the case. The Bill of Rights was not, then, applicable to the states.[9] While a broad, common tradition of rights and liberties existed among the American people, there was no formal and enforceable unity among them in securing these fundamental rights. It is now, however, well established that the effect of the 14th Amendment is to extend the federal constitutional rights of Americans to the state level. Justice Harlan’s celebrated dissent, which correctly decided the law, long ago observed that that Amendment provided that the states may not abridge the “privileges and immunities” of citizens.[10] The Court has been selective, working case by case, in acknowledging whether a certain right in the federal Constitution was intended to be incorporated into the states. That said, the 14th Amendment creates a unified groundwork of rights securable by the Article III federal judiciary, safeguarding all Americans under the law from the arbitrary violation of their dignity as citizens and persons insofar as their constitutional rights permit.
Without an appropriate constitutional structure geared towards both securing, and, in its very operation, preventing the infringement of, rights, the Bill of Rights itself becomes a dead letter. Justice Scalia, in his colourful way, observes that the USSR guaranteed many rights under its constitution to no effect, whereas in America rights were and are secured robustly. How is this the case? The Justice said, “the real key to the distinctiveness of America”, how rights there are secured, “is the structure of our government”.[11] The Justice meant here specifically the separation of powers, though I think we may extend this to the federation of the states and the operation of the 14th Amendment too. Liberty in America is secured because the structure of their constitutional law, not to mention the liberty-loving character of the American people, is geared towards preventing arbitrary power from arising.
In this brief reflection of how the United States secure a government of laws, I have noted that the federal constitution achieves this by five chief means. First, by the separation of power among the three chief institutions of the State; second, by due process of law; third by the federation of the states, each possessing a share of local sovereignty, ensuring good government and thus warding off demagoguery; fourth, the securing of the people across time against the urges of the mob by ensuring deliberative procedures; fifth, by the securing of the rights of all Americans uniformly in and under the law, away from the reach of arbitrary whims. In my view, this is a truly admirable constitutional structure, worthy of deep study. I hope my brief reflections here will have helped the reader whet their appetite to study more deeply the truly remarkable system of government instituted in the United States of America.
Postscript. The reader should note that judicial review is, of course, an important tool too, but I have assumed its existence in the main body of the text, as implied in Article III of the Constitution and made explicit in Marbury v. Madison.[1] At any rate, while the judiciary has the special responsibility of judicially enforcing the Constitution, the Constitution is not the special creature of the judiciary. All officers under the Constitution are bound to uphold it. I think it is uncontroversial for me to say that were judicial review to become a special, indeed, the primary tool for restraining arbitrary power, it would imply that the other branches would at that time have ceased to uphold the Constitution. At that point, the predicament for the Republic would be very grave, because the judiciary itself, as Madison says, is the weakest branch, and therefore cannot itself be the special guardian of the Constitution without the other branches seeking to safeguard the Constitution also. Furthermore, Justice Barrett, when she was an academic, made the sharp observation that the slowness of litigation and the narrow grounds for legal standing means that most precedents are unlikely to be disturbed.[2] Another aspect, however, of the thing her observation is examining would then suggest that the limited practical exercise of the judicial power makes it extremely necessary that Congress and the President uphold and follow the Constitution freely, because most of their actions will not be challenged. Needless to say, I consider judicial review a very useful and necessary tool under the Constitution, but of inherently limited use. Implied in the American model of the separation of powers is therefore the duty of each branch to separately uphold the Constitution in its own sphere of activity, subject to judicial review if and only if such review ever comes up.
[1] Constitution of Massachusetts 1780, Part the First, Art. XXX
[2] Morrison v. Olson, 487 U.S. 654 (1988) 486 (Scalia J., dissenting)
[3] Joshua Braver, ‘The Court’s Liberals Still Have Power’ (The Atlantic, 17 August 2022) <https://www.theatlantic.com/ideas/archive/2022/08/supreme-court-liberal-bloc-dissent/671158/> accessed 9 October 2025.
[4] (1784) 4 Doug. 73, 170
[5] Marbury v. Madison, 5 U.S. (1 Cranch.) 137 (1803), 168
[6] James Madison, Federalist No. 9: “The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government”.
[7] 567 U.S. 387 (2012) (Kennedy J.)
[8] Niccolò Machiavelli, Discourses on Livy (trans. Julia Conaway Bondanella and Peter Bondanella, OUP 1997) 108
[9] Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833)
[10] Plessy v. Ferguson, 163 U.S. 537 (1896) 560 (Harlan J., dissenting): “The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the Constitution, by one of which the blacks of this country were made citizens of the United States and of the States in which they respectively reside, and whose privileges and immunities, as citizens, the States are forbidden to abridge”. Thus, Justice Harlan humanely laid down the doctrine of incorporation, as the only Justice worthy of that title in that time as a true friend of liberty and human dignity. See the earlier case of Presser v. Illinois, 116 U.S. 252 (1886) 253 where Justice Woods first announced the doctrine of incorporation: “The provision in the Fourteenth Amendment to the Constitution that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” does not prevent a state from passing such laws to regulate the privileges and immunities of its own citizens as do not abridge their privileges and immunities as citizens of the United States”.
[11] ‘Considering the Role of Judges Under the Constitution of the United States’: Hearing Before the Committee on the Judiciary, 112 Cong. 1 (2011) (Statement of Hon. Antonin Scalia) p. 7 <https://www.congress.gov/112/chrg/CHRG-112shrg70991/CHRG-112shrg70991.pdf> accessed 9 October 2025
Footnotes to the Postscript:
[1] See fn.5, supra.
[2] See Amy Coney Barrett, Originalism and Stare Decisis [2017] 92 Notre Dame Law Review 1921
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