1

Constitutionalism and the American Founding

Between 1776 and 1789 the American people constituted themselves a nation by creating republican governments in the thirteen former English colonies and then, in the Constitutional Convention, by transforming the Union of confederated states into a genuine law-giving government. The novelty of this achievement was epitomized in the seal of the new nation, "Novus Ordo Seclorum," which announced "a new order of the ages." Yet in founding political societies Americans pursued a goal that had occupied Western man since antiquity: the establishment of government power capable of maintaining the stability and order necessary to realize the purposes of community, yet so defined and structured as to prevent tyranny. This age-old quest for the forms, procedures, and institutional arrangements most suitable for limiting power and implementing a community's conception of political right and justice, we know as constitutionalism. It remains to consider American constitution-making in the perspective of Western and specifically English constitutionalism, and to reflect on its significance in shaping political life in the United States.

Constitutionalism takes as its purpose resolution of the conflict that characterizes political life and makes government necessary, through procedures and institutions that seek to limit government and create spheres of individual and community freedom. Based on the paradoxical idea that the power to make law and to rule can be at once sovereign and effective, yet also defined, reasonable, and responsible, constitutionalism contains an inherent tension that sets it against utopianism and anarchism, which deny the reality of power, and absolutism and totalitarianism, which tolerate no limitations on power. Nevertheless, although constitutionalists can in retrospect be seen as sharing common assumptions, differences among them have sometimes led to irreconcilable conflict. One such division occurred in the eighteenth century when the American people separated from the English nation and adopted a new type of constitutional theory and practice for the conduct of their political life.

Perhaps the most obvious feature of American constitutionalism was its apparent dependence upon legally binding written instruments prescribing the organization of government and fixing primary principles and rules to guide its operation. Texts had of course long been used in law, government, and politics, and the English constitution comprised written elements. Americans' resort to documentary, positive-law techniques of government was more systematic and complete than any previous undertaking, however, so much so as to amount to constitutional innovation. Following the American example, peoples everywhere in the modern world have adopted the practice of forming governments by writing constitutions. But Americans in the founding era did more than invent a new approach to the old problem of limited government. Their constitution-making was informed with a new purpose — the liberal purpose of protecting the natural rights of individuals. American charters of fundamental law were not simply ordinances of government; they were also constitutions of liberty. The meaning of liberty, especially the relation between the individual and the community that was central to any practical definition of it, was a deeply controversial issue that divided Americans in state and national constitution-making. The adoption of the federal Constitution in 1787, however, marked a decisive shift toward protection of individuals in the pursuit of their interests, and away from enforcement of community consensus aimed at making citizens virtuous and moral, as the central purpose of constitutional government in America.

American constitutionalism is thus concerned with organizational and procedural matters, on the one hand, and with substantive questions of political purpose, on the other. Most of the time constitutional politics in the United States deals with the former concern, as groups and individuals assert or deny the existence of proper governmental power or challenge methods used to employ it. Nevertheless, constitutionalism is ultimately normative and purposive. Every state may be said to have a constitution, in the sense of an institutional structure and established procedures for conducting political affairs. But not every state is a constitutional state. In the Western political tradition constitutional government is defined by forms and procedures that limit the exercise of power. American constitutionalism goes farther by pursuing not only the negative goal of preventing tyranny but also the positive end of promoting individual liberty, both in the passive sense of protection against government power and in the active sense of participation in the decisions of the political community. Viewed in this light, American constitutionalism raises basic questions of political value and purpose that connect it with the mainstream of Western political philosophy.

In the history of constitutionalism the great problem has not been to create power but to define and limit it. The Western constitutional tradition has employed two methods toward this end. The first is the theory and practice of arranging the internal structure of government so that power is distributed and balanced. In Greek political thought the purpose of politics was to promote virtue or moral excellence in men, and the founder of a political community was advised to balance the classes of society — kingship, aristocracy, and democracy — in a structure of mixed government which permitted each element to contribute to this end. The pursuit by each class of its special aptitude or interest prevented the others from seeking merely private ends, transforming the polity into despotism, oligarchy, or mob rule depending on which part of society dominated. A second method of constitutionalism has been to subject government to legal limitations, or the rule of law. Roman juristic writing, which regarded natural law as a standard of reason and equity for judging the validity and legitimacy of government enactments, is usually considered the source of the rule-of-law idea. Significant practical steps toward achieving it were taken in medieval England as common law courts created a sphere of law and legal right protecting individual property and liberties against government and constituting a limitation on royal discretionary authority. Further contributing to the rule-of-law tradition was the tendency of courts to regard basic principles of common law adjudication as embodying reason and justice, and hence as a kind of fundamental law limiting the acts of government.

English constitutionalism in the period of American colonization comprised both strands of the constitutional tradition. The common law courts in the early seventeenth century insisted on the superiority of law over the royal prerogative. Sir Edward Coke gave famous expression to the idea of a higher law controlling government in asserting that " 'sovereign power' is no parliamentary word.... Magna Charta is such a fellow, that he will have no sovereign." Coke also said that "when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it and adjudge such act to be void."¹ Parliament itself, however, subsequently claimed supremacy in lawmaking, and vindication of its authority in the Revolution of 1688 effectively precluded development of the rule of law into a politically relevant form of higher-law constitutionalism. An internally balanced institutional structure, expressed in the revised and revitalized theory of mixed government in the eighteenth century, became the principal model of constitutional government in England.

Essentially descriptive in its connotation, the English constitution was the structure of institutions, laws, conventions, and practices through which political issues were brought to resolution and carried out in acts of government. Yet the constitution was also prescriptive or normative, or at least it was supposed to be. Lord Bolingbroke's well-known definition pointed to this quality: "By constitution we mean ... that assemblage of laws, institutions and customs, derived from certain fixed principles of reason, directed to certain fixed objects of public good, that compose the general system, according to which the community hath agreed to be governed."² More specifically, as Montesquieu, Blackstone, and other eighteenth-century writers affirmed, the purpose or end of the English constitution was civil and political liberty.³ From the standpoint of modern constitutionalism the legislative supremacy that contemporaries regarded as the foundation of English liberty was incompatible with effective restraints on government. Nevertheless, Parliament was believed to be under a moral obligation to protect the rights and liberties of Englishmen, and the sanctions of natural law were still seen as effective restraints. Moreover, political accountability to public opinion through elections operated as a limitation on government. Englishmen thus continued to see their constitution as fixed and fundamental, notwithstanding legislative sovereignty.⁴

American constitutionalism began in the seventeenth century when English settlers founded political societies and institutions of government in North America. Two things stand out in this early constitutional experience. First, the formation of government was to a considerable extent based on written instruments. In corporate and proprietary colonies the founding documents were charters granted by the crown conferring enumerated powers on a particular person or group within a designated geographical area for specific purposes. Under these charters the colonists adopted further agreements, organic acts, ordinances, combinations, and frames of government giving more precise form to political institutions. In religiously motivated colonies government was more clearly the result of mutual pledging and association under civil-religious covenants. American colonists thus used constitutionlike instruments to create political community, define fundamental values and interests, specify basic rights, and organize governmental institutions.⁵

The second outstanding fact in early American constitutional history was substantial community control over local affairs. To be sure, the colonies employed the forms and practices of English government and generally emulated the metropolitan political culture. Their institutions at the provincial and local levels were patterned after English models, and the theory of mixed government and the balanced constitution was accepted as valid. Yet discordant tendencies pointed to a distinctive course of constitutional development. The fact that in most colonies the power of the governor depended on royal authority while the power of the assembly rested on a popular base, as well as frequent conflict of interest between them, made separation and division of power a political reality discrepant with the theory of mixed government. Furthermore, popularly elected assemblies responsive to growing constituencies and enjoying de facto local sovereignty under written charters introduced a republican element into American politics.

As English subjects, Americans believed they lived under a free — and fixed — English constitution. Long before the American Revolution they expressed this view in the course of conflicts with imperial officials. Numerous writers asserted that the constitution was a contract between the people and their rulers; that the legislature could not alter the fundamental laws from which government derived its form, powers, and very existence; that government must exercise power within limits prescribed by a civil compact with the people. Moreover, the compact chosen to organize and direct government, as a colonial sermon of 1768 put it, must coincide with "the moral fitness of things, by which alone the natural rights of mankind can be secured."⁶ Disputing the descriptive English constitution that included parliamentary sovereignty, Americans were coming to think of a constitution as normative rules limiting the exercise of power for the purpose of protecting the people's liberty, property, and happiness.

In declaring their independence from England, Americans in a sense reenacted the founding experience of the seventeenth century. They took what their history and political circumstances determined to be the logical step of writing constitutions to organize their political communities. Before issuing the Declaration of Independence, Congress recommended that the colonies adopt governments that "in the opinion of representatives of the people, best conduce to the happiness and safety of their constituents in particular, and America in general."⁷ Although some argued that the people acting in convention should form the government, political exigencies and Whig political theory conferred legitimacy on legislatures, which in all but two instances were responsible for writing or adopting the first state constitutions.

The most distinctive feature of the state constitutions — their documentary or positive character — followed the decision to form new governments as a matter of course. Given the long tradition of founding documents in America, it seemed obvious that the purposes of political community and limitations on government could be achieved better by writing a constitution than by relying on an unstipulated, imprecise constitution like England's, which did not limit government and was not really a constitution after all. Though consisting in part of written documents, the latter was too subjective, ultimately existing in men's minds and premised on the idea that "thinking makes it so."⁸ Americans insisted in contrast that the principles and rules essential to organizing power and preserving liberty be separated from the government and objectively fixed in positive form. Old in the tendency it reflected though new in its comprehensive application, American constitutionalism rested on the idea that "saying makes it so," or at least the hope that putting something in writing so it can be authoritatively consulted makes it easier to achieve specified ends.⁹

Professor Lutz's illuminating research has shown that the state constitutions stand in direct line of descent from colonial founding documents which created political communities and established institutions of government. One type of founding document (compact, covenant, combination, agreement) signified mutual promise and consent by which individuals formed a political community and identified basic values, rights, and interests. A second type of document (enactment, ordinance, frame, constitution) specified governmental institutions.¹⁰ Half the state constitutions written between 1776 and 1789 were described as compacts and contained bills of rights that defined basic community values. In the other constitutions the design of government received principal attention. All the constitutions reflected tendencies of previous political development; none created institutions on a completely clean slate. This fact appeared more clearly in documents that were concerned mainly with establishing a framework of government. In these more modern documents, which anticipated the course of American constitutional development, community consensus yielded in importance to protection of individual rights as the main purpose of constitution-making.

In a formal sense American constitutionalism consisted in the stipulation of principles, institutions, and rules of government by the people or their representatives in the state legislatures. As constitutions are distinguished and ultimately justified by their political purpose and effect, however, the political character of the revolutionary founding documents requires consideration.

Historical scholarship in the past two decades has firmly established republicanism as the political philosophy of the American Revolution. Although lacking in precise meaning, the concept is most accurately defined as government resting on the consent of the people and directed by the public will expressed through representative institutions. In the perspective of Western political thought republican philosophy was formulated in the seventeenth century to defend liberty against absolutism. The state constitutions were republican and liberal insofar as they limited government by prescribing public decision-making procedures that prevented government officials from aggrandizing power for private benefit rather than the public good. The constitutions were liberal in yet another sense in confirming and extending the right of political participation that according to republican philosophy constituted true liberty for individuals. In many respects, however, state constitutionalism in the revolutionary era was a doctrine of community power and control that restricted individual rights in a way that would now be seen as illiberal.

Under the state constitutions the most important power in modern government — the power to make law and compel obedience — was lodged in the legislature. Unimpeded by internal governmental checks under the extreme version of the separation of powers that prevailed in the first phase of state-making, and sustained by presumptive identity with popular sovereignty as the source of political authority before the rejection of monarchy, legislatures acted forcefully to promote public virtue and the common good. Requirements of public virtue frequently took the form of restrictions on individual liberty through sumptuary laws and statutes regulating the transfer and use of property. Bills of rights that were part of state constitutions had little effect in curbing legislative power because they were treated as hortatory rather than legally binding. In the name of popular sovereignty and patriotism, state legislatures fashioned a constitutionalism of unity and power in government.

The concentrated power of republican virtue acting through institutions of community control was a useful and perhaps necessary expedient in the wartime emergency. In the doctrines of state sovereignty and the police power, revolutionary republicanism entered into the American constitutional tradition, and it has offered a compelling model of constitutional government throughout our history to reformers and radicals on both the left and the right. However, the actions of the state legislatures too plainly contradicted the constitutional meaning of the Revolution to become accepted as the principal or exclusive expression of American constitutionalism. That meaning was nowhere better stated than by the Massachusetts General Court in its Circular Letter of 1768, which declared:"... in all free States the Constitution is fixed; & as the supreme Legislative derives its Power & Authority from the Constitution, it cannot overleap the Bounds of it, without destroying its own foundation."¹¹ Yet this was precisely what was happening in the American republics.

The state constitutions may have been fundamental law in the sense of ordaining a framework of government, but they were not fundamental in the sense of controlling legislative power. In all but two states the constitution was written by the legislature and could be altered or abolished by that body if it so chose. More than language of urging and admonition, contained in many of the constitutions, was needed to transform them into effective restraints on the actual exercise of power. Nor was the technique of internal institutional balance effectively employed to limit the state legislatures. In 1784 South Carolinian Thomas Tucker echoed the complaint increasingly heard in other states when he criticized the people of his state for deriving their ideas of government too much from the British constitution, and giving the legislature powers formerly exercised or claimed under a monarchical government. Tucker argued that the South Carolina constitution, written and adopted by the legislature, was not founded on proper authority. He recommended a popular convention to amend the constitution, "fixing it on the firm and proper foundation of the express consent of the people, unalterable by the legislative, or any other authority but that by which it is to be framed."¹²

Attempts to restrict state legislative power in the 1780s broadened and reformed American constitutionalism. As Tucker suggested, writing and amending constitutions by popularly elected conventions clarified the distinction between legislative law and fundamental or paramount law. Massachusetts in 1780 and New Hampshire in 1784 wrote their constitutions in conventions and required them to be ratified by the people in special elections. In theory this was the most effective way to make the constitution an antecedent higher law secure against legislative alteration. Further restriction of legislative power resulted from changes in the internal structure of government. Executive officers were given greater powers as checks and balances — that is, a partial and limited sharing or mixing of functional powers among the departments — were introduced in some states as modification of the separation of powers. Bicameralism, a carry-over from colonial government, was recognized as a means of making legislative action more deliberate. And courts began to play a more prominent political role by treating constitutions as higher law in relation to legislative enactments.

So strong was the tradition of community self-government under legislative sovereignty, however, that it could not easily be dislodged as the main reliance of constitutionalism. Certainly little could be done to alter it by isolated efforts in the several states. Effective reform, if that was needed, could come only from an interstate collaboration working through the state system created by the colonies when they declared their independence. Heretofore peripheral to republican political development, the union of the states in the Confederation became the focus of constitutional change.

The Continental Congress was formed by the colonies in 1774 as a coordinating and advisory body to protect American interests and eventually to pursue the cause of national independence. Exigencies of war and common concerns among the states gave Congress political power, which it exercised through informal rules and practices that were codified in the Articles of Confederation. Considered from a constitutional perspective as a limiting grant of power, the Articles were inadequate because, while they gave Congress ostensible power to do many things, they did not confer the lawmaking authority that is essential to government. Congress could at best make resolutions and recommendations, which in practice amounted to requests that the states could ignore. The Articles were unconstitutionlike in consequence of having been written by Congress and ratified by the states, rather than based in any direct way on popular authority. They were also unconstitutionlike with respect to institutional structure. Whether considered analogous to a legislative or executive body, Congress was the sole governmentlike organ, and only an evolving departmental system saved it from complete incompetence.

As an alliance or league of friendship (the description used in the document), the Articles were a more successful founding instrument. Yet in the form given it in the Articles, the Confederation was incapable of addressing in a constructive manner the defects in American government revealed in the actions of the states. The confederacy provided a field of political action, however, on which the reform of republican constitutionalism could take place. The practical impossibility of amending the Articles in order to strengthen Congress having been demonstrated, and insecurity of liberty and property in the states apparently increasing, proponents of constitutional reform turned a last-ditch desperation move — the calling of a convention of the states at Philadelphia in May 1787 — into an enduring achievement of statesmanship and constitutional invention.

Perhaps most significant, the Framers gave institutional expression to the idea that a constitution, in order to function as a limiting grant of power, must be higher as well as fundamental law. In addition to originating or organizing power, it must be maintained separate from and paramount to government. In a formal sense the Constitution as a founding document was superficially similar to the state constitutions. A preamble explained the reasons for the document, proclaimed the existence of a people and political community, defined specific purposes, and ordained a framework of government. In reality, however, the Framers departed from the model of the state constitutions. It was unnecessary to return to the fundamentals of the social compact and the purposes of republican government, as state constitution writers to varying degrees were inclined to do. The authors of the Constitution observed that they were not addressing the natural rights of man not yet gathered in society, but natural rights modified by society and interwoven with the rights of the states.¹³ They knew that the nation they were creating — or, to be more precise, whose existence they were recognizing — was amorphous, loosely related in its constituent parts, and united by few principles and interests. It was far from being the kind of cohesive, integrated community that the states by contrast seemed to be, and most unlike the nation-state communities of Europe. Hence the Framers briefly addressed in the Preamble those few basic unifying purposes and values — liberty, justice, domestic peace, military defense, the general welfare — and gave virtually the entire document to stipulating the institutions and procedures of government. As fundamental law the Constitution thus was less a social compact for a coherent, like-minded community, and more a contractlike specification of the powers, duties, rights, and responsibilities among the diverse polities and peoples that constituted the American Union.

Far more effectively than writers of earlier founding instruments, the Framers made the Constitution a paramount, controlling law. In a practical sense this boiled down to a question of law enforcement. Creating a real government to operate directly on individuals throughout a vast jurisdiction raised a new and potentially difficult compliance issue, but this received little attention at the convention. It was the old compliance problem of the states that stood in the way of making the Constitution binding and effective. At first the delegates considered a congressional veto on state legislation to deal with this issue. Rejected as impracticable, the veto was replaced by the supremacy clause (Article VI, section 2), stating that the Constitution, laws made in pursuance of it, and treaties made under U.S. authority "shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." This language expressed the paramountcy of the federal constitution over the states, and by inference over national legislative law as well. Not explicitly stated but implied in the judicial article was the idea that the superior force of the Constitution depended on its application and interpretation by the courts.

The higher-law character of the Constitution was further affirmed and institutionalized in the method of its drafting and in provisions for its ratification and amendment. Although delegates to the Philadelphia Convention were appointed by the state legislatures rather than elected by the people, the Constitution was a more genuine expression of the will of the people than were the Articles of Confederation, which were written by Congress. It has always been difficult for historians convinced of the democratic character of the Articles to admit this fact, but the Framers' acknowledged apprehension about unlimited popular rule does not gainsay their commitment to the republican idea that government derives its just powers from the consent of the governed. Consistent with this commitment, institutions of direct popular consent that were still exceptional at the state level were incorporated into the national constitution. Ratification would be decided by conventions in the states, presumably popularly elected. Amendment of the Constitution could occur through popular approval, in state legislatures or special conventions, of proposals recommended by Congress or by a convention to be called by Congress on the application of two-thirds of the state legislatures. The superiority of the Constitution to legislative law was enhanced by this provision for its amendment, since an utterly fixed and inflexible political law would become irrelevant to the task of governing an expanding society. If the Constitution required change, however, the people must amend it. Thus were popular sovereignty and the higher-law tradition incorporated into American constitutionalism.

To make the Constitution paramount law in operational fact, however, it was not enough to assert its supremacy and assume that the people's innate law-abidingness would give it effect. This was to rely on "paper barriers," concerning the efficacy of which there was much skepticism among the Framers. It was necessary also to structure the organs of government so that power would be internally checked and limited.

A persistent theme in constitutional theory since the late nineteenth century has been that power should be concentrated and unified — the more so the better, in order to deal with social problems — provided only that government be kept responsible through institutions of political accountability and the rule of law. Although the Framers' objective was to create coercive authority where none existed, they rejected concentrated sovereign power as a proper constitutional principle. Delegated, divided, reciprocally limiting power formed the motif of their institutional design.

Unlike the state constitutions, which organized the inherent plenary power of the community, the Constitution delegated specific powers to the general government The contrast was most significant in the plan of the legislative department, to which the state constitutions assigned "the legislative power" and which the federal constitutions defined by the enumeration of congressional powers Stable and energetic government seeming to require a strong executive and an independent judiciary, the Constitution made grants of power of a more general nature to these branches, which under the separation of powers were a counterweight to the lawmaking department The separation principle by itself, however, as the state experience showed, was not a sufficient limitation on legislative power Accordingly, checks and balances, by which each branch was given a partial and limited agency in the others' power, as in executive participation in legislation through the veto or legislative judging in the impeachment process, built further restraints into the Constitution.

The structure of the Union of course presented the most urgent question of institutional arrangements affecting the constitutional reality of a supreme political law A division of power was already evident in the plan of the Articles of Confederation, what was needed was to transform the Union's political authority into the genuine power to impose lawful requirements on its constituent parts. This was achieved by reconstituting the Confederation as a compound republic, based on both the people and the states Once this was accomplished, the pertinent fact for the paramountcy of the Constitution was the division of sovereignty By giving the central government power over objects of general concern and allowing the states to retain almost all of their authority over local matters, the Framers divided sovereignty, thereby effectively eliminating it from the constitutional order Arguments were certain to arise about the nature and extent of the powers of the several governments in the American state system, but the effect of such controversy would be to focus attention on the Constitution as the authoritative source of answers to questions about the rights of constituent members.

The Constitution was both fundamental and higher law because it expressed the will of the people, the ultimate source of authority in America But it would truly limit power only if it was superior to the people themselves as a political entity, as well as to the legislative law At the time some theorists of popular sovereignty argued that the people could alter their government at will, exercising the right of peaceful revolution and disregarding legalities of form and procedure, even as the Framers did in drafting and securing ratification of the Constitution against the express requirements of the Articles of Confederation

However we view their action — as illegal, unconstitutional, revolutionary, or merely statesmanlike — the authors of the Constitution rejected the notion of unlimited popular sovereignty They provided restraints on the people in the form of a limited number of offices, long terms of office, indirect elections, large electoral districts, and separated and balanced departments of government Although these provisions have often been viewed as antidemocratic and in conflict with republican theory, they are more accurately seen as modifying the popular form of government adopted during the Revolution The Framers' intent, as James Madison wrote in The Federalist #10, was to supply "a republican remedy for the diseases most incident to republican government "¹⁴ And one should not forget that despite careful distribution and balancing of authority, Congress remained potentially the most powerful branch of the government, most responsive to the people and possessed of the lawmaking power.

Making the Constitution effective as a permanent higher law involved matters of form, procedure, and institutional structure Yet as procedural issues carry substantive implications, and means sometimes become ends in themselves, it is also necessary to ask what a constitution is for. To prevent tyranny, the constitutionalist goal, is to create a space in which differences among people become manifest, in which politics can appear and questions of purpose arise If running a constitution always reflects political concerns, making a constitution is all the more a form of political action that derives from or partakes of political philosophy We thus consider the purposes and ends of the Framers' constitutionalism.

If the end of the English constitution was acknowledged to be political freedom, Americans were all the more emphatic in declaring liberty to be the purpose of their constitutions Moreover, if the purpose of politics in modern times, as the history of political thought teaches us, is to protect men's natural rights rather than to make them virtuous and good as the ancients thought, then American constitutions were liberal in purpose. Yet the concept of liberty, universally embraced as a political good, can obviously be defined in different ways And while recognition of natural rights gave modern politics a new purpose, it is equally true that virtue and moral excellence did not disappear from political discourse In light of these considerations we may discern two conceptions of political freedom in the constitutionalism of the founding period The first refers to the liberty of self-governing political communities, which were still thought to have an obligation to make men virtuous and on which individuals depended for their happiness and well-being The second conception of freedom rests on the primacy of natural rights and generally asserts individual liberty over community consensus as the purpose of government.

Although these conceptions of liberty stand in theoretical opposition to each other, they coexisted in the Revolutionary era. After protesting imperial policies in the language of English constitutional rights, Americans justified national independence by appealing to universal natural rights. Wartime exigencies required decisive political action, however, which was based on the right of local communities to control individuals for the sake of the common good. States interfered with the liberty and property of individuals by controlling markets, restricting personal consumption, awarding monopoly privileges, and limiting imports and exports. They also regulated the speech and press freedoms of persons suspected of disloyalty to the patriot cause. In many ways Revolutionary republicanism subordinated the rights of individual citizens to the community, defining true liberty as the pursuit of public happiness through political action.

Reacting against state encroachments on liberty and property, the Constitution makers of 1787 emphasized protection of individual rights rather than promotion of virtue and community consensus as the purpose of government. Rather than an unattainable ideal of public virtue in ordinary citizens, they appealed to enlightened self-interest as the social reality on which the Constitution would rest. The Framers recognized factional conflict as a limiting condition for creating a constitution, yet also as an opportunity for broadening and redefining republican government. Alongside the communitarian idea, which remained strong in many states, they created a new constitutional model in the complex and powerful government of the extended republic, based partly on the people yet so structured and limited that individual liberty, property, and pursuit of personal interests would be substantially protected against local legislative interference. This is not to say that mere private enrichment at the expense of the community good or general welfare was the end of the Constitution. The concepts of virtue and the public interest remained integral to political thought and discourse. But virtue assumed a new meaning as the prudent and rational pursuit of private commercial activity. Instead of telling people how to live in accordance with a particular conception of political right or religious truth, the Framers promoted ends believed beneficial to all of society — peace, economic growth, intellectual advancement — by accommodating social competition and upholding citizens' natural rights against invasion by the organized power of the community, whether local, state, or national.

The Founding Fathers are often seen as antidemocratic because they created a strong central government, removed from direct popular and local community control, which they expected to be managed by an aristocratic elite. Notwithstanding its foundation in popular sovereignty and protection of individual liberty and rights, the Constitution in this view contradicted the real meaning of the Revolution, defined as rule by local communities guided by republican civic virtue. Yet while the Revolution stood for government by consent, there is no sound reason for regarding Revolutionary state-making as the single true expression of the republican principle. It was an essential part of that principle that government should operate through law to which all were subordinate, both citizens and government officials, and further that legislative law should be controlled by the higher law of the Constitution. This was the meaning of the rule of law in the United States, and its more complete realization in the Constitution of 1787 signified climax and fulfillment of the Revolution.

The Framers' purpose must also be considered in relation to the threat of national disintegration, either from internal discord or foreign encroachment, that has traditionally characterized accounts of the "critical period" in American history. The weakness of Congress in discharging its responsibilities was surely an impediment to protecting American interests and an embarrassment to patriotic men. Yet the belief that national disintegration was imminent perhaps depends too much on the idea, born of subsequent crises, that American nationality must be expressed through a strong central government or else it cannot exist. Some degree of formal cooperation among the states was necessary, but America could have existed as a plural nation, as it did in the Confederation period (and to an important extent continued to do under the Constitution). The problem in 1787 was not the threat of total rupture of the Union attended by actual warfare among the states. The problem was the character of American politics and government, or the nature and tendency of republican government. Republicanism was the defining idea of the nation, and without it we may say that America would no longer exist. The country was growing in the 1780s as population expanded, economic development occurred, westward settlement continued. Yet the state system of 1776 was incapable of adequately accommodating and guiding this development. The states were too strong for the good of republican principles, the Union not strong enough. By restructuring the state system, by reconstituting the Union on a republican constitution that crystallized tendencies in congressional-state relations in the 1780s, the Framers sought to reform American government to the end of securing the republican ideals of the Revolution.

We are so accustomed to thinking of constitutions as a reflection of, and hence determined by, social forces that we tend not to consider that the historical significance of the Constitution really was to demonstrate, as Alexander Hamilton wrote in The Federalist #1, that men are "capable ... of establishing good government from reflection and choice."¹⁵ Historical analysis may lead to the conclusion, for example, that the idea of a constitution as a higher, fixed law appealed to colonial Americans as an effective means of protesting imperial policy. Not so readily do we entertain the view that the constitutionalism of 1787 was based on a sound understanding of human nature, that it propounded valid principles of government, that it possessed intrinsic and not merely instrumental value. These are normative reflections more appropriate to political science, and an older political science at that, than to history. In writing about constitutionalism, however, it is hard categorically to deny a normative dimension, because the basic questions — the effectiveness of limitations on government, abuses of power, the nature of liberty — defy objective measurement.¹⁶

Yet, while historical analysis need not judge whether the Framers formulated a valid science of politics, it can employ as an evaluative criterion the requirement that a constitution must recognize and conform to a people's principal characteristics and nature. Considered from this point of view the achievement of the Founding Fathers is undeniable. They created a complex government of delegated and dispersed, yet articulated and balanced powers based on the principle of consent. Confirmation of that principle was in turn required by the Constitution in the cooperation and concurrence among the branches of government that was necessary for the conduct of public business. Made for an open, acquisitive, individualistic, competitive, and pluralistic society, the Constitution ordered the diverse constituent elements of American politics. More than merely a neutral procedural instrument for registering the play of social forces, it was a statement of ends and means for maintaining the principles that defined Americans as a national people. The Framers made a liberal constitution for a liberal society.

That the nation has marked the bicentennial of the Constitution is perhaps evidence enough of the Framers' success in establishing a new kind of constitutional government. Yet formal continuity may conceal substantive alterations. We need to ask how the higher-law and limited-power constitutionalism expressed in the document of 1787 actually worked in practice.

It is a striking fact, considering the unhappy outcome of most revolutions and the high rate of failure of constitution makers in the twentieth century, that the Constitution was not only formally ratified but quickly accorded full political legitimacy. The state constitutions, while not merely pretextual or facade documents, were not invoked and applied in the actual conduct of government as the United States Constitution was. And the new federal instrument was more than accepted: it rapidly became an object of veneration. This "cult of the Constitution," as it has unappreciatively been described by many students of American government, requires explanation.

Historians have offered a number of reasons for constitution worship, including popular identification of the document with economic prosperity; the Federalists' propagandizing to create an instant tradition of the Constitution and inculcate public commitment to it; the people's need for a unifying social myth and object of loyalty to replace monarchy as a course of authority. It has further been argued that anti-Federalist critics of the document in the ratification debate became its most vigorous supporters because of ideological conditioning that led them to treat it as an ancient constitution requiring literalistic defense to prevent political corruption. More broadly we may say that the Constitution took deep and abiding hold on the American political mind because it reflected a sober regard for the propensities of ordinary human nature and the realities of republican society; created powerful institutions capable of attracting men of talent, ambition, and enlarged civic outlook; and introduced changes in the conduct of public affairs that most people saw as improvements and that caused them to form an interest in the government it created.

The Constitution stipulated institutions, rules, and procedures embodying and symbolizing the principles of republican liberty, national unity, and balance and limitation of power. It was a fixed, objective document that could be consulted and applied, not a formless assemblage of principles, statutes, and decisions carried about in men's minds and dependent on social internalization for its effect. Yet the Constitution's principles and provisions were general and ambiguous enough to allow of varying interpretations. Liberty, union, and reciprocally limiting power meant different things to different people, as did the rules and institutional arrangements expressing and embodying them. At a superficial level this circumstance produced conflict, but at a deeper level the effect was unifying. For groups and individuals were encouraged to pursue political goals within the framework of rules and requirements established by the Constitution. Thus the document became permanent and binding. In the language of social science it was an integrative mechanism. Only the most extreme groups in our history — radical abolitionists and slaveholders in the nineteenth century, totalitarian parties in the twentieth — have repudiated the Constitution as a framework for political action.

The Constitution possessed force and effect because it was useful and relevant to political life. Responsive to the social environment, it had instrumental value. At the same time, repeated reference to the document as the source and symbol of legitimate authority confirmed its intrinsic value, apart from the practical results of specific controversies. People believed, in other words, that it was important to follow the Constitution for its own sake or for the common good, rather than for a particular political reason. The intrinsic value of the Constitution lay not only in the wisdom and reasonableness of its principles in relation to the nature of American society but also in the form those principles were given in a written instrument. The effect of the Constitution as binding political law has much to do with its textual character.

The Framers addressed this issue in discussing "parchment barriers." The state constitutions were evidence that written stipulations were no guarantee of performance, especially when it came to limiting legislative power. Madison in particular said it was not enough to erect parchment barriers in the form of constitutional provisions stating that the legislative department must confine itself to lawmaking. It was further necessary to arrange the interior structure of government so that the constituent parts would limit each other. Personal motives of ambition and interest, Madison reasoned, when linked with a constitutional office would lead men to resist encroachments from other departments. These were the "auxiliary precautions" (supplementing accountability to the people) that would oblige government to control itself.¹⁷ Madison was saying that pluralistic differences in opinion and interest are necessary to make the prescriptions of the text function effectively.

Nevertheless, American constitutionalism insists that the text of the fundamental law be given its due. Madison's auxiliary precautions are in fact rules written into the document. We may agree with an early writer who said political legitimacy consisted "not in the words and letters of the Constitution; but in the temper, habits, and the practices of the people."¹⁸ But it is equally true that while the written text may not be sufficient, it is necessary to achieve the purposes of constitutionalism, or so it has seemed most of the time to Americans. In the Constitutional Convention Rufus King said he was aware that an express guarantee of states' rights, which he favored, would be regarded as "a mere paper security." But "if fundamental articles of compact are no sufficient defence against physical power," King declared, "neither will there be any safety against it if there be no compact."¹⁹ The observation of Carl J. Friedrich is in point: "The 'constitution' tends to become a symbol, and its provisions become so many symbols in turn. It is this symbolic function of words which makes the constitution a political force."²⁰

Reference to the constitutional text has been a fixed feature of American politics. Its significance and effect have been variously estimated. A long tradition of criticism holds that the document has failed to limit government, especially the federal government in relation to the states. Others argue that constant invoking of the Constitution has trivialized politics by translating policy debate into legalistic squabbles that discourage dealing with issues on their merits. Reformers seeking a more programmatic politics have lamented that the Constitution by fragmenting power prevents responsible party government. And still others contend that the Constitution has worked precisely as intended: to eliminate genuine political action and make citizens passive subjects interested in private economic pursuits rather than public happiness and civic virtue.

These criticisms misunderstand the nature of constitutional politics and hence the binding and configurative effect of the Constitution. If politics is concerned with the end or purpose of political community, the proper role of government, the relationship between the individual and society, then it is difficult to see how the Constitution can be said to have brought an end to politics or prevented political action. As an expression of modern liberalism, however, the Constitution did signify a change in the nature of politics. To elevate natural rights into constitutionally protected civil rights, as the Framers did, was to discourage an older politics based on the pursuit of glory, honor, conquest, and political or religious truth, as well as a newer ideological politics born of modern revolution. The Framers' constitutionalism was a way of organizing political life that paradoxically placed certain principles, rules, and procedures beyond politics, according them the status of fundamental and paramount law. Premised on the idea that citizens could pursue private interests while preserving community, it was intended to limit the scope and intensity of politics, preventing a total absorption of society that would impose tyranny in the name of ruler, party, people, or community.

Starting in the 1790s and continuing with remarkable continuity to the present day, public policy advocates have charted courses of action with reference to the Constitution. Using constitutional language firmly embedded in political rhetoric, such as due process of law, equal protection of the law, and the separation of powers, et cetera, they invoke its principles and values to justify their goals, argue over the meaning of its requirements, and align themselves with its manifest tenor as explicated in constitutional law and legislation. Political leaders do this not because they are unwaveringly committed to a specific constitutional principle; in different circumstances they may advocate a different principle. The decisive fact is the high public status accorded the Constitution: policy makers and political actors know that the people take the Constitution seriously, regard it as supreme law, believe it is powerful because embodying sound principles of government and society's basic values, and, indeed, venerate it. Aware of this popular prejudice in favor of the Constitution, and seeking the approval of public opinion, political groups and individuals are constrained to act in conformity with its provisions. Thus the Constitution as binding political law shapes the form and content of policies and events.

The constraining effect of the Constitution might nevertheless be questioned, for it will appear obvious that while some requirements are unequivocally clear (for example, the minimum age of the president), many provisions are ambiguous and imprecise in meaning. Facing this fact, many scholars have concluded that there is no single true meaning of the Constitution, rather several possible readings none of which possesses exclusive legitimacy. Some contend there is no real Constitution against which arguments about it can be evaluated, only different assertions as to what the Constitution is at any given time, or what we want it to be. Expressed in the oft-cited statement that the Constitution is what the Supreme Court says it is, this view, carried to its logical conclusion, would mean that the American Constitution is a developing, evolving, growing thing that is changed by the actions of judges, lawmakers, and executive officers. In that case the Constitution ceases to be a fixed, prescriptive, paramount law.

Politically and historically realistic as this analysis appears, it has never been accepted as legitimate in constitutional theory or in the conduct of constitutional politics. From the standpoint of the people and their representatives, the Constitution, in both its procedural requirements and essential principles, has a true, fixed, ascertainable meaning. This popular understanding has existed from the beginning of constitutional politics in the debate over ratification, and it will probably continue until the popular belief that the Constitution as a document says what it means and means what it says is eroded or superseded by a more sophisticated view of the nature of texts and political language. There is still a strong tendency in public opinion to think that written constitutions, in Jefferson's words, "furnish a text to which those who are watchful may again rally and recall the people: they fix too for the people principles for their political creed."²¹

The importance of the constitutional text in American government has been raised anew in recent years in the controversy over original-intent jurisprudence. Many legal scholars have expressed doubt about the wisdom and legitimacy of consulting the original intent of the Constitution or its authors in settling constitutional disputes. The words of the text, it is argued, apart from anything that its authors may have written or said about its meaning, must be considered as expressing the original intent. And the text must be read and understood according to the accepted meaning of words in the interpreter's own time, place, and historical situation.²² Some dispose of original intent more directly by asserting that constitutional interpretation need not be bound by the constitutional text, but may be based on fundamental social values and conceptions of justice and moral progress that judges are specially qualified to understand and apply. Either way, the Constitution is assured of its status as a "living document" adaptable to changing social conditions.

Although there may be sound reasons for disconnecting constitutional politics from original intent, from a historical standpoint it seems clear that neither the Framers nor the people over 200 years have taken so narrow a view of the meaning and relevance of original intent. The purpose of making a fixed, objective constitution was to decide the most important basic questions about politics and government once and for all — or until the people changed their mind and amended the document. The idea was to bind future generations in fundamental ways. This purpose would be defeated if those who later ran the Constitution were free to substitute their own definitions of its key terms. Yet the fact remains that constitutional principles and rules have been reinterpreted and redefined, in apparent contradiction of the Framers' intent, in decisions and statutes that have been accepted as politically legitimate. The Supreme Court has in a sense acted as a continuing constitutional convention.

Although the Founding Fathers intended the Constitution to be permanent and binding, the language of the document cannot realistically or reasonably, in a categorical sense, be frozen in its eighteenth-century meaning. It is the Constitution's essential purposes, its fundamental principles and procedures that were not intended to change. The question to be asked is whether fundamental principles and values — the values of individual liberty, national union, distributed and balanced power, the consent of the people — can be defined in an authoritative text and thereby realized in public law and policy to the satisfaction of the political community. American political history generally provides an affirmative answer to this question. But it is important to remember that an overriding imperative in American politics, law, and government has been to reconcile public policy with constitutional principles and rules as embodied in the text and in accordance with the Framers' intentions. Moreover, original intent has not been viewed in the narrowly positivistic manner urged by current critics of original-intent jurisprudence. The text was thought to have a definite and lasting meaning, and speeches, writings, and letters of the authors of the Constitution have always been thought pertinent to the task of elucidating its meaning. Whatever the practical effect of dismissal of the text and repudiation of original intent would be, such a step would alter the historic character of American constitutionalism.

The issue of original intent is pertinent to the larger question of the purpose of the Constitutional bicentennial. What is it that we seek in study and commemoration of the Constitution? In a sense the purpose is the same that informs all historical investigation, namely, the desire to learn how things came to be as they are. Yet commemoration of the founding has implications different from other historical celebrations and remembrances because the Constitution is peculiarly and directly relevant to public life. Historical knowledge about it therefore acquires special political significance. Of course any number of politically interested purposes may be served by facts about the founding, including defense of the original-intent position in the contemporary debate over constitutional adjudication. Broadly conceived, however, the bicentennial may be viewed as having the fundamental purpose of clarifying and confirming the meaning of American nationality.

Diverse in ethnic, religious, cultural, and social characteristics, Americans were united in 1776 by the political principles set forth in the Declaration of Independence. Inchoate though it was, the new nation was defined by these principles — liberty, equality, government by consent, the pursuit of happiness as an individual right — which in various ways were written into the state constitutions. By establishing a republican government for the nation, the Framers of the Constitution confirmed these principles, completing the Revolution and making it permanent. Since then American politics has derived from and been shaped by the Constitution and has periodically been renewed by popular movements resulting in electoral realignments that have included a return to the first principles of the founding as an essential element. After more than 200 years the United States may be old enough and sufficiently secure in its national identity to exist apart from the political principles that marked its appearance in the world. On the other hand, it may not be, in which case the nation still depends for its existence on preserving the principles of the founding. And when one reflects that a great deal of writing about the Constitution has been shaped by attitudes hostile to the Framers, such as those of the Beardian school, the possibility of gaining useful insight into the nature of our fundamental law through historical investigation warrants serious consideration.

Bicentennial activities focused attention on the text of the Constitution, and this as a matter of course. (The American Political Science Association and the American Historical Association, in describing their conjoint Project '87 for commemorating the Constitution, stated that its purpose was to promote "public understanding and appraisal of this unique document.") From a social science point of view the documentary character of the Constitution is easily exaggerated; the internalization of principles and values in officials and citizens is seen as the essential thing in achieving constitutionalist purposes. Looked at in this light, the American Constitution is not and never has been simply the text of the Constitution, but consists in addition in concepts not expressly written in the document, such as the rule of law or the presumption of innocence, as well as institutions and practices that derive from political sources, such as the party system. From the standpoint of public opinion, however, legitimacy in American government still appears dependent upon or derived from direct reference to or necessary inference from the text of the Constitution. Perhaps the text-based constitutional order, in a society as open, pluralistic, and dynamic as the United States, has been an obstacle to the kind of internalization of values that characterizes English political life. After 200 years Americans still seem to be constitutional fundamentalists in regarding the text and original intent as conclusive of legitimate authority. Or perhaps we should say that while a narrow, legalistic textualism has not been the dominant characteristic of constitutional government in America, when an issue is made of the constitutional text the people will insist on the indispensable documentary foundation of constitutionalism.

Understanding this attachment to the constitutional text has often been difficult for scholars and intellectuals, who tend to disparage it as Constitution worship. Perhaps reverence for the Constitution expresses not so much a naive literalism, however, as an awareness of the act of foundation as a source of authority. Considered in this perspective the constitutional text stands for the founding, and the principles written into the document symbolically represent values evident in the actions of the Framers. The founding required rational discussion, deliberation, compromise, and choice; consent, concurrence, and mutual pledging. These procedural values are embodied in constitutional provisions which require government under a fixed institutional structure and by deliberative processes that depend on compromise and concurrence, in accordance with substantive principles of natural rights, consent, and limited and balanced power.

We study the making of the Constitution for the same reason Americans have always turned to the founders: to strengthen and preserve our character as a free people, to continue on a course that has brought us prosperity as a nation. In a world in which governments that impose tyranny on their people are described by some as democracies, we study the founding in an effort to achieve the substance of liberty and natural rights that we believe it is the purpose of government to secure. Ultimately, commemoration of the Constitution expresses the belief that the principles, institutions, and procedures of free government cannot be maintained if divorced from the purpose, intention, and spirit of the Framers of our fundamental law.

Notes

1 Quoted in Charles H. McIlwain, Constitutionalism Ancient and Modern (Ithaca, 1940, rev. ed., 1947), pp. 126-127, and Edward S. Corwin, The "Higher Law" Background of American Constitutional Law (New York, 1955), p. 44.

2 Quoted in McIlwain, Constitutionalism, p. 3.

3 Daniel J. Boorstin, The Mysterious Science of the Law (Boston, 1958), pp. 155-159.

4 J. W. Gough, Fundamental Law in English Constitutional History (Oxford, 1955), pp. 174-191.

5 Donald S. Lutz, "From Covenant to Constitution in American Political Thought," Publius, 10 (Fall 1980) 101-133.

6 Daniel Shute, An Election Sermon (1768), in Charles S. Hyneman and Donald S. Lutz, eds., American Political Writings during the Founding Era, 1760-1805, 2 vols (Indianapolis, 1983), vol. I, p. 117.

7 Quoted in Fletcher M. Green, Constitutional Development in the South Atlantic States, 1776-1860 (New York, 1966), p. 54.

8 Benjamin Fletcher Wnght, Consensus and Continuity, 1776-1787 (Boston, 1958), p. 10.

9 Walton H. Hamilton, "Constitutionalism," Encyclopedia of the Social Sciences (New York, 1937), vol. III, p. 255, Aaron Wildavsky, "Why Amending the Constitution Is Essential to Achieving Self-Control Through Self-Limitation of Expenditure," The Bureaucrat, 9 (Spring 1980) 53.

10 Lutz, "From Covenant to Constitution", Lutz, "The Purposes of American State Constitutions," Publius, 12 (Winter 1982) 27-44.

11 Henry Steele Commager, ed., Documents of American History (New York, 1963), p. 66.

12 Thomas Tucker, Conciliatory Hints, Attempting by a Fair State of Matters, to Remove Party Prejudice, in Hyneman and Lutz, eds., American Political Writings, vol. I, p. 620.

13 Max Farrand, ed., The Records of the Federal Convention of 1787, 4 vols (New Haven, 1911-1937), vol. II, p. 137.

14 The Federalist, ed. Edward Mead Earle (New York, 1938), p. 62.

15 Ibid., p. 3.

16 Observing that the purpose of constitutional government is to prevent tyranny, and that the exact definition of where tyranny begins is difficult to establish, M. J. C. Vile writes "There are inescapable value-judgments here, and we must accept that a discussion of constitutionalism can only begin by pointing to certain specific examples of societies which are asserted to be non-tyrannical, and to attempt to elucidate their major characteristics," Constitutionalism and the Separation of Powers (New York, 1967), p. 308.

17 The Federalist, p. 337.

18 Samuel Miller, Sermon (1795), quoted in Michael Lienesch, "The Constitutional Tradition History, Political Action and Progress in American Political Thought," Journal of Politics, 42 (1980) 7.

19 Farrand, ed., Records of the Federal Convention, vol. I, p. 493.

20 Carl J. Friedrich, Constitutional Government and Democracy, 4th ed. (Waltham, Mass, 1968), p. 169, emphasis in original.

21 Quoted in Charles A Miller, The Supreme Court and the Uses of History (Cambridge, Mass, 1969), p. 184.

22 H. Jefferson Powell, "The Original Understanding of Original Intent," Harvard Law Review, 98 (1985) 855-947.

Next | Contents | Text Version