In this chapter, I first examine how the rule of law has been defined in legal theory, and how it has been distinguished from the rule by law, which is a distortion thereof (Section 3.1). Second, I assess how the rule of law has been conceptualised in the context of the European Union, as this book focuses primarily on the EU legal order (Section 3.2). In this regard, I also draw on the acquis of the Council of Europe. The Council of Europe is a distinct jurisdictional order, yet it heavily influenced the ‘EU’ conceptualisation of the rule of law, and the EU regularly relies on Council of Europe sources in its own legal practices. Finally, I draw on these findings to identify the rule of law’s core principles and to distil the concrete requirements that public authorities must fulfil to comply therewith (Section 3.3). Identifying these requirements – and the inherent challenges to achieve them – will subsequently allow me to build a normative analytical framework that I can use as a benchmark in Chapter 4 to assess how algorithmic regulation impacts the rule of law.

The action for annulment is one of the main avenues to test the lawfulness of EU measures in light of EU fundamental rights. Through this procedure, the EU courts exercise their role of guardians of the Treaties by confirming or striking down EU measures. Accordingly, the action has both an ex post regulatory and a democratic control function, while ensuring the coherence of the EU legal order under a Kelsenian model of constitutional review. It is through procedure that EU fundamental rights exercise their influence in the action for annulment: both the parties to the litigation and the Court invoke procedural fundamental rights to delineate the process-based obligations imposed on EU institutions. In so doing, both the applicants and the EU courts shape fairness and the rule of law in the EU administrative space. The centrality of procedure in the judicial review of EU law is a direct reflection of the plethora of procedures that constellate the EU governance. Yet recent rule of law saga cases appear to signal a new direction towards more substantive pleas (and therefore contestation) of EU law.

This chapter advocates an ethic of “symmetric interpretation” as a solution to the challenges outlined in Chapter 1. To prevent undue politicization of constitutional law, judges should favor, when possible, constitutional understandings that are “symmetric” in the sense of conferring valuable protections across both sides of the nation’s major political and ideological divides. By the same token, they should disfavor understandings that frame constitutional law as a matter of zero-sum competition between rival partisan visions. Favoring symmetric understandings in this sense will not always be possible. When it is possible, however, favoring symmetry may provide a point of common orientation for judges with differing policy preferences and interpretive outlooks. Reflecting this approach's inherent appeal, an inchoate preference for symmetry is already evident in judges’ opinions, oral argument questions, and reasoning.

This chapter will briefly describe the outcomes of a coroner’s inquest: the findings available to the coroner, and the types of concerns that they can express. It will also explain Regulation 28 (Prevention of Future Death) reports.

Who has the authority to decide on behalf of children the balance between advancing the child rights regime over the legal certainty of real children? This question is put to the test with the Swedish incorporation of the CRC into the national legal system without adhering to normal democratic safeguards; pairing the hierarchy of norms with the corresponding hierarchy of sources when conducing judicial review, or a political question doctrine to maintain the line between the courts and the democratically elected legislator. To incorporate the CRC directly without a process of transference, an international treaty that is as wide in scope and open for interpretation to be directly applicable in concrete cases has caused a persistent condition akin to Agamben’s state of exception, read through Swedish scholar Herbert Tingsten.

This chapter outlines the challenges that current political polarization presents for constitutional law and judicial authority. Over the past fifty years, US politics have polarized, producing close political competition between two ideologically defined national parties that view each other with fear and distrust. This polarization has encouraged political actors in Congress and the federal executive branch to take legally aggressive positions and prioritize substantive policy achievements over adherence to good-governance norms or even constitutional restraints. At the same time, polarization has generated rival constitutional visions, and aligned slates of judges, that aim to advance partisan goals through constitutional interpretation. This environment poses risks for both judicial authority and constitutional law, because the public may lose trust in courts as neutral arbiters of constitutional disputes if it perceives them as wholly political institutions.

Originally established by “we the people,” as its preamble majestically states, the Constitution belongs to us all. But Americans increasingly treat it as the property of one political faction or the other. In keeping with their own preferences, conservatives interpret the Constitution to protect religion, limit gun control, and obstruct administrative governance while allowing state-level regulation of moral questions like abortion. Progressives see a mirror-image constitution that advances social justice, confers broad federal power, and allows flexible administrative regulation while at the same time limiting state and local police authority and guaranteeing sexual and reproductive autonomy. As national politics have grown ever more divided and polarized, preventing either side from implementing its goals through federal legislation, both coalitions have dreamed of capturing the courts and implementing their vision instead through constitutional interpretation. A document that should be a source of unity and shared commitments has become a vehicle for extending political conflict.

This chapter looks at the ways in which the police is defined and confined by internal standards of constitutional acceptability. Before we get to the matter of individual rights, we must ask the question of whether and to what extent the police power is being used in ways that are reasonable, not arbitrary, and not the product of animus or unacceptable influence. These internal structural considerations have been used to limit the scope of the power and, more to the point of this chapter, they have the potential of being used in a way that reconciles broad governmental power with the protection of citizen interests and liberty.

This chapter examines the origins of the police power in the American constitutional system. In the beginning, the framers of the early state constitutions were engaged in two struggles: how to create effective frameworks of government, and how to define the relationship between national and state government. The police power was one the key reserved powers the states possessed viz. the Tenth Amendment. This chapter illuminates how the state police power emerged and developed in the nineteenth century and, in particular, how it evolved from a notion of sic utere (righting specific wrongs) to salus populi (promoting the public good). It ends at the end of Reconstruction, with key cases illuminating the scope of state regulatory discretion under the police power.

Beginning after the end of Reconstruction, this chapter looks at the ways in which the police power emerged to facilitate an increasingly bold project of regulation. Key Supreme Court decisions supported the use of the police power to undertake and implement the objectives of a growing economy and a widening sphere of government. State power accompanied expanding national power and all levels of government tackled myriad persistent and new problems. In a case from the early twentieth century, for example, the Court upheld a vaccine requirement as a reasonable exercise of the public health authority of the state. Regulatory power was called into question by the Supreme Court’s Lochner-era decisions, but even this two-decades-long movement did not seriously threaten the ability of state governments to carry out ambitious regulatory agendas. Significantly, the Court put its imprimatur on the government’s zoning power in key cases from the late 1920s. And though the Court would message to the states that there were limits on how far they could go in restricting property rights, through doctrines such as “regulatory takings,” what emerged by the end of World War II was a robust conception of the state police power, one that gave government a wide sphere of action and authority to protect the general welfare.

The United States Supreme Court, under the Constitution, is intended to be one of three coequal branches of government. Most recently, however, it has played an outsized role. Republican Senator Mitch McConnell from Kentucky has been the chief architect in pushing the federal judiciary in a more conservative direction and nowhere more so than on the United States Supreme Court. This chapter presents a view of how the Supreme Court is intended to operate and argues that today’s Court is exceedingly political. McConnell engineered the placement of three very conservative justices on the Court giving the Court its current 6-3 conservative majority. By reviewing key cases and arguing that the current Court is rejecting much of Supreme Court and constitutional law history, we demonstrate the Court’s rightward shift. As an ideal, we like the Court to be as politically neutral as possible, and we would like it to find and not make the law. However, as we discuss, given the role the Court plays in constitutional interpretation, it is inevitable that it will make the law and that politics will influence its decision-making. This chapter also argues that today’s Court may be the most politicized Court in our lifetimes, if not in our history.