The United States, checks and balances, and a commercial republic—an experiment

This chapter describes how the rule of law grew and changed following the founding of the United States. The United States was founded by people who thought they were adopting their common law heritage. United by a hustling spirit and a deep distrust of big government (especially England’s), the Founders were deeply influenced by the Scottish Enlightenment and its focus on individual liberty, and were determined to create a commercial republic (Hamilton). At the same time, they were fascinated by the French Revolution, and some (Jefferson) felt a strong accord with its concepts. Others (Adams) believed that the French philosophes were unrealistic, far too involved in theory, and had not seen the downside of legislation-centered democracy. While originally English in the focus on limited government and individual liberty, the American conception of the rule of law became more self-critical and developed a deeper (or at least more self-conscious) set of checks and balances than that of its parent country. This concept—the American understanding that “all men are created equal†and the perception of limited government—was severely tested by the anachronism of the presence of slavery at the founding, the civil war necessarily born out of the divisions between slave-holding and free states, and the legacy of the Jim Crow era. Even after the civil rights movement of the 1960s, the country still struggles to live up to the ideals presented in its Declaration of Independence.