Rationalism and the Rule of Law: Michael Oakeshott and the American Constitutional Order

Many commentators have mentioned the fact that Michael Oakeshott describes the American founding as a "Rationalist" project. But there has been little careful investigation into the actual character of his criticisms. This essay first considers the critique on its own terms before turning to an examination of the alternative that Oakeshott recommends, which is designated "the rule of law." Several observations emerge from this analysis. First, Oakeshott's concept of Rationalism still has purchase in the present day. Second, it can be applied to contemporary American law and politics as a way of illuminating certain widespread political tendencies. And finally, it is possible both to appropriate his critique and simultaneously to moderate it such that it proves beneficial for thinking about our current political situation in the United States.