My topic in this essay is the historical foundations of the role of law in the American constitutional order. Where did the uniquely American commitment to the rule of law come from as an historical matter, and how can we copy it for export to countries like Russia, Afghanistan, or Iraq? This is an enormous subject, which I can only hope to outline in the brief space I have below. I want to begin by discussing the nature of the rule of law and by explaining why it is difficult to speak of an origin of the idea of "the rule of law." I will then discuss some of the many antecedent events and cultural patterns which I believe led the Framers to seek to preserve the rule of law through our written Constitution. Finally, I will conclude by discussing some of the many strategies the Framers incorporated into the Constitution to ensure that that document would secure the rule of law. First, let us consider the nature of the rule of law. My thesis is that the rule of law is a culture- or tradition-based norm whereby members of a society come to organize their personal behavior and the behavior of their government officials so that it is law-abiding or law. respecting. (1) A culture which favors the rule of law is one in which millions of individuals choose to behave in such a way that their behavior is governed by law. There are many cultures around the world and not all of them place a premium on people behaving in a way that is law-abiding. In some cultures, people don't abide by the tax laws or the laws against corruption or even some of the criminal laws. In my ancestral homeland of Italy, for example, it is commonly said that there is less of a culture of obeying the tax laws than there is in the United States. Similarly, in Russia, or in parts of Eastern Europe, or in Latin America, norms against governmental corruption may not be as widely followed as they are in the United States. The key point is that the rule of law is a culture or tradition of behaving in a certain way, not a doctrine that can be legislated. Thus when Communism fell in Eastern Europe, one could not simply order that henceforth the rule of law would be followed. It was necessary instead to persuade millions of individual governmental and nongovernmental actors to behave in a way that was law-abiding. (2)
