the multiple demoi underlying the democratization of the Union at the
European level will remain to be answered within the context of this supra-
national constitution. 3
The rule of law as political rather than formal further challenges two
shibboleths of modern constitutionalism: the claim that sovereignty and
rule of law are constitutive but irreconcilable elements of the modern state;
and the belief that independent judges and courts are the best locus to secure
the rule of law. TheWrst belief appears at this point in contemporary debate to
have been less controversially set aside as largely deWnitional. The second
remains today a more genuinely persistent interpretive perspective of Ameri-
can constitutionalism, and one established withMarbury v. Madison[ 5 US
( 1 Cranch) 137 ( 1803 )]. However, the modern American Supreme Court has
been criticized as alternately too strong and too weak in its eVorts to serve as
guarantor of both constiutionalism and the rule of law. In the late 1970 s,
Joseph Raz warned that ‘‘[s]acriWcing too many social goals on the altar of the
rule of law may make law barren and empty’’ (Raz 1979 , 210 , 239 ). More
recently, jurisprudential and legal theorists such as Robin West have argued
that the rule of law remains a double-edged sword. A too idolatrous respect
for it has, on her account, informed the contemporary Court’s interpretation
of the Fourteenth Amendment’s guarantee of equal protection, leading it to
thwart the development of more progressive politics in the areas of aYrma-
tive action and sex-based discrimination. (West 2001 , 215 ). West believes that
the Court’s anti-progressive practice of the rule of law lies in a still dominant
American constitutional perspective that the greatest threat to liberty comes at
the hand of an overzealous state. Recent constitutional debates emerging from
America’s prosecution of the post- 9 / 11 war on terror may have worked to
reinforce the basis for this perspective. A case in point is the series of legislative
acts (USA Patriot Act of 2001 , Homeland Security Act of 2002 ) and executive
orders that have signiWcantly restructured the relationship of America’s in-
ternal law enforcement powers to its domestic and international intelligence
gathering and ‘‘war powers’’ capacities. While noting that many of these
changes are needed, constitutional theorists such as Rogers Smith make clear
that important constitutional protections of the rule of law are potentially at
risk when foreign intelligence gathering agencies ‘‘long accustomed to acting
3 Despite ratiWcation by Austria, Cyprus, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg,
Malta, Slovakia, Slovenia, and Spain, the failure of the Dutch and the French votes in late May and
early June 2005 led EU leaders to extend the November 2006 deadline for ratifying the Charter,
without setting any new target date for approval.
328 shannon c. stimson