of protective arrangements created so as to insulate civil society from op-
pressive action by the agents of government. This is the general understand-
ing of rule of law most closely associated with Anglo-American constitution-
making. On this view, without a commitment to limited government, which
is then identiWed as government under rule of law, jurisprudential thinkers
such as Charles McIlwain and James Bryce argued that a state might be said to
have a constitution in the mechanical sense of oYces and administration, but
lackconstitutionalism.
Rule of law as constitutionalism, or limited government, is often presented
as emerging together with modern liberalism. While this historical read-back
of liberalism contains anachronism, the constitutional tradition within which
Montesquieu stands out as combining the prescription that law should be
general and proscriptive in its application, and as formulating an institutional
framework of genuinely separate and balancing powers, is surely founda-
tional to later modern liberal jurisprudence (Vile 1967 ). Early formulations of
this view are found in the seventeenth century with the separation of legis-
lative and executive power. Locke argues, for example, in theSecond Treatise
of Governmentfor distinct legislative, executive, and federative (foreign rela-
tions) powers, but says little or nothing about the judicary itself and leaves the
most politically potent jural power in the judging hands of ‘‘the people.’’ The
theoretical completion of rule of law as constitutionalism is contained in
book XI of Montesquieu’s Spirit of the Laws in which Locke’s distinct,
federative power is dropped and an argument for a separable and independ-
ent jural power (ch. 18 ) is introduced. It is this view that is reprised and
further institutionalized as an independent judiciary in Madison’sFederalist
10 and Hamilton’sFederalist 78 .Federalist 51 (Madison) succinctly encapsu-
lates the central problematic of a modern rule of law as constitutionalism—
that is, as limited government—when it argues that, ‘‘[i]n framing a govern-
ment which is to be administered by men over men, the great diYculty lies in
this: you mustWrst enable the government to control the governed; and in the
next place oblige it to control itself ’’ (Rossiter 1961 , 322 ).
America’s written constitution of 1789 asWnally ratiWed and later amended,
is not the only constitutional form recognizing the rule of law. Constitution-
alism, like the rule of law with which it is here associated, is variously deWned,
and often connotes an entire body of ideals as well as rules—both written and
unwritten, legal and extra-legal—which eVectivelydescriberather than for-
mulate a government and its operation. For example, because the British
constitution refers to no single document, it has sometimes been described as
322 shannon c. stimson