The Iron Cage of Veneration

The United States has now at least semi-officially been downgraded to the ranks of a “backsliding democracy”. Many scholars have also noted the attacks in the US and elsewhere on the “rule of law”. But there is a complex relationship between the two trends. What if the “rule of law,” defined as adherence to procedural norms, works in systematic ways to frustrate democratic wishes and goals? It is one thing if the “rule of law” is thought to include a rich substantive basis that might include, say, “establishing justice” or “securing the blessings of liberty,” as stated in the Preamble to the United States Constitution. But one can also posit a completely formal notion of fidelity to law where, for example, one simply has to accept the inability to move closer to “justice” or “the blessings of liberty” because existing institutions entrench the power of those committed to a substantively unjust status quo. This paper explores this tension in the US and broader comparative context.