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78 Stan. L. Rev. Online 1 (2025)

handle is hein.journals/slro78 and id is 1 raw text is: SYMPOSIUM ESSAY Due Process or the Rule of Law? Americans Speak a Different Legal Language Diego A. Zambrano* The phrase rule of law travels easily across borders and languages. In speeches by presidents and popes, in the communiques of the United Nations and the European Union, it signals something foundational: Law should be general, publicly promulgated, prospective rather than retroactive, and applied by impartial decision-makers.1 Yet in the United States-arguably the world's most legalistic society2-the words rule of law stir surprisingly little everyday passion. Ask a Colombian or Chilean law student what stands between democracy and dictatorship and she may invoke el Estado de Derecho (the rule of law). Ask an American law student and you are more likely to hear a different phrase-the due process of law. Right on point, Professor Steve Vladeck recently argued that it is not a stretch to suggest that due process is what separates democratic legal systems from ... less democratic legal systems.3 This rule of law versus due process divergence is not accidental; it reflects two distinct historical experiences with threats to constitutional democracy and different visions about how best to conceptualize freedom. In this essay, I argue that Americans think fundamentally differently about constitutional threats than do their counterparts in Eastern Europe and Latin America. While Americans have developed a robust conception of due process, rooted in centuries of stable institutional development, they rarely consider constitutional problems through the rule of law lens that dominates post- * Professor of Law, Stanford Law School. 1. Jeremy Waldron, The Rule of Law, STANFORD ENCYCLOPEDIA OF PHILOSOPHY ARCHIVE (June 22, 2016), https://perma.cc/8AKG-9CHH; see also A. DICEY, INTRODUCTION To THE STUDY OF THE LAW OF THE CONSTITUTION 188-205 (10th ed. 1959). 2. Seymour Martin Lipset, AMERICAN EXCEPTIONALISM:A DOUBLE-EDGED SWORD 20 (1996) (America began and continues as the most anti-statist, legalistic, and rights-oriented nation.). 3. Steve Vladeck, Bonus 133: Due Process and the Rule of Law, ONE FIRST (Mar. 19, 2025), https://perma.cc/2GF9-GHEZ. 1