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Constitutional Government



For authors, proponents, and critics of the Constitution alike, no principle was more fundamental than that such an instrument was indispensable for those hoping to live safe and happy lives. It has been said that the Age of Enlightenment might more properly be called the Age of Constitutions. But that age's thinkers came to their definitions of a constitution only gradually and haltingly and without ever reaching consensus. Indeed, for all their preoccupation with the making of constitutions, they did not speak of "constitutionalism." We, by contrast, can hardly do without the term or the distinction it implies. Today, every nation-state hardy enough to issue its own postage stamps sports a constitution. Rarely does one not lay claim to being governed according to the rule of law; and more rare is the tyrant who cannot point to his shiny little constitution. Today, accordingly, we are obliged to ask whether what purports to be a constitution does in fact embody and secure the main features of constitutionalism.

In the eighteenth century the hypocrisy of tyrants led them in other directions, and the question could be put more simply. It was not whether a nation had a living constitution or only the appearance of one, but, did it have a constitution at all? Men could ask that question even of England, where legislative supremacy included the power to extend the duration of a sitting Parliament. In the eyes of the Americans of the Revolutionary era, only a scant fraction of mankind then enjoyed (or ever had enjoyed) the benefits of constitutional government. No small part of their revolutionary fervor turned on the belief that American practice and its success would have worldwide significance in precisely this regard. "It has been frequently remarked, that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force. If there be any truth in the remark, the crisis, at which we are arrived, may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act, may, in this view, deserve to be considered as the general misfortune of mankind" (Hamilton, Federalist, no. 1).

Though Americans may have taken it for granted by 1787 that their experiments in constitutional government would be decisive, they did not arrive at their understanding of the term in quite the same self-confident manner. Ancient as the word was, "constitution" continued to carry a range of primary and derivative meanings. When William Penn called his a "frame of government" (no. 4), he was emphasizing the primary need served by a constitution: establishing a structure on which to arrange the powers and offices of governance. Structures, however, are to be understood in terms of their ends, and Penn's ends were shaped in part, if only in part, by his theology of sin. That is, believing that man's fall from grace necessitated external law and coercion "to terrify evil doers," he believed no less that government should go beyond the business of correction: it ought, he thought, "to cherish those who do well." In so doing it might become "durable," achieving the kind of stability that would postpone inevitable decline. A constitution is indispensable for establishing what he called the conditions of "evenness"--governance without abuse, the simultaneous enjoyment of liberty and performance of duty. At bottom, though, what matters most is not the frame but the quality of the men within it: "That, therefore, which makes a good constitution, must keep it."

A Fence against Oppression

John Locke's analysis (no. 5) addresses itself to what Penn called "the coarsest part" of governance. Guiding himself principally by the original condition, "those inconveniences of the State of Nature" that impelled men to associate in the first place, Locke was able to derive a definition of, and standard for, civil society out of the original contractual intention, which is in turn inferable from the original danger. The transaction by which each individual gave up his unqualified right to be judge in his own case, and authorized the society to establish a common judge over him and his fellows, makes sense only as a means of enhancing each one's safety and security or (alternatively expressed) as a means of better preserving his property. It is literally absurd, literally self-contradictory, to imagine men contracting to submit to an absolute, arbitrary power. Such a power, strictly speaking, has no subjects, only slaves; arbitrary government, strictly speaking, is no government at all. No one ought to think that even uninstructed "Men are so foolish that they take care to avoid what Mischiefs may be done them by Pole-cats, or Foxes, but are content, nay think it Safety, to be devoured by Lions." Any move toward arbitrary power, toward power which cannot be called to account, betrays the great end of civil society.

The better to secure their natural rights individuals first freely contracted with one another to form a civil society. They also agreed to be bound henceforth by their major voice. That majority, acting in the name of the entire people, "alone can appoint the form of the Commonwealth, which is by Constituting the Legislative, and appointing in whose hands that shall be." That act is the fundamental positive law of the commonwealth, its original constitution. All powers of the government stem from that original act of limited delegation from the people. It is this understanding of "the Bounds which the trust that is put in them by the Society, and the Law of God and Nature, have set to the Legislative Power of every Commonwealth, in all Forms of Government" that issues forth as constitutionalism. (See also no. 23.)

Some of the institutional implications of Locke's argument are expressed with pungency and clarity by the Englishmen John Trenchard and Thomas Gordon in Cato's Letters (nos. 6, 7, 8), whose polemics enjoyed wide circulation and frequent reprinting in the colonies. Constitutional checks and safeguards, limited government, is of the essence. The great art--"the only Secret"--in forming a free government is "to make the Interests of the Governors and of the Governed the same, as far as human Policy can contrive." If, as both Locke and Cato contended, liberty or the protection of natural rights is the end in view, what is needed is not simplicity (or as we might say, efficiency), but complexity. Some variations on this theme were developed by Montesquieu in a work especially cherished by republicans, The Spirit of Laws (no. 9). He portrayed an English constitution dedicated above all to political liberty, a constitution whose complications built each man's confidence that he need not fear another. Montesquieu's England was a model because its constitution of limited and mutually checking powers moderated governors. It was a proof, he suggested, that "a government may be so constituted, as no man shall be compelled to do things to which the law does not oblige him, nor forced to abstain from things which the law permits." Montesquieu's exemplar of constitutionalism is the constitution of a modern liberal state.

Americans viewing the British constitution found much to praise, but emphases differed significantly. During the agitation over the Sugar Act (and soon, the Stamp Act), Richard Henry Lee (no. 10) stressed that the intention of the British constitution could not be fulfilled without securing popular consent to taxation. The House of Representatives of Massachusetts (no. 11) spoke of the inherent and inalienable rights of all men, said to be confirmed--not created--by Magna Charta, and of the "constitutional rights of the subjects of this Province." Aggrieved colonists were ever mindful of their charter rights and of their rights as Englishmen. John Adams, writing as Clarendon (no. 12), characterized the British constitution not by parliamentary practice or legislation or custom, but by the end of the government thereby constituted. All government professed to aim at the public good. The British constitution was distinctive because "liberty is its end, its use, its designation, drift, and scope, as much as grinding corn is the use of a mill, ... or life and health the designation of the human body." Its peculiar mixture of forms and powers was addressed to that end.

With the escalation of hostilities attending passage of the Townshend Acts, the House of Representatives of Massachusetts (no. 13) was prompted to emphasize the feature of fixed limits in a free state's constitution. A constitution "ascertains and limits both sovereignty and allegiance." Parliament could not "overleap" its bounds without destroying its legitimacy. Carolinians were similarly reminded that the King and his ministers had no discretionary power "to make ordinances to supply any defect which they may imagine in the constitution" (see Iredell to North-Carolina Gazette, 10 Sept. 1773). In Virginia the Fairfax County Resolves (no. 14) reaffirmed the continuity in America of "the Civil-Constitution and Form of Government" of Great Britain and identified the vital principle of that constitution: that the people shall be governed only by laws to which they have consented through freely chosen, similarly situated, and popularly accountable representatives.

The People's Higher Law

The separate and higher status of the people in their constitutive capacity, as distinguished from the representatives of the people in their ordinary legislative capacity, became a more prominent and insistent theme as the formal break between Britain and her colonies drew near (see ch. 2). The widely read English Whig James Burgh (no. 15) used the distinction to attack Blackstone's notions of unlimited parliamentary power and privilege. Like Alexander Hamilton (no. 16), Burgh warned against so full a preoccupation with the threat of monarchic despotism as would leave men blind to the risk of parliamentary encroachments and arbitrariness. Americans chafing under parliamentary high-handedness were confirmed in their belief that explicit constitutional defenses were essential if their liberties were to be preserved, even from representatives of their own choosing. Precisely because of its special and close connection to the ultimate source of political authority, a constitution could rightly claim to be more weighty, more fundamental than any act of ordinary legislation. In developing their case for this position, two of the Founders produced classic statements of constitutionalism. One was Jefferson's critique (in Notes on the State of Virginia), of the Virginia Constitution of 1776 as a legislative act "transcendant to the powers" of that or any other legislature. No fixed bulwark for the people's rights could be erected on so unsteady a foundation (no. 20). The other was Hamilton's masterly exposition of the Constitution as the higher law, the expression of the settled intention of the people, and hence of "superior obligation and validity" to statutory law, the expression of the intention of the mere agents of the people (no. 24).

So it was that arguments advanced as grounds of protest and resistance became arguments used directly as grounds for creating new republics. In the language of the Pittsfield Petitions (no. 17), it is "the Approbation of the Majority of the people" that gives "Life and being" to a constitution. Nothing lacking that special authorization is entitled to be treated as a foundation. Thinking likewise, the Concord town meeting (no. 18) rejected outright any pretensions of "the Supreme Legislative" to form and prescribe a constitution for the inhabitants of Massachusetts. If the great work of founding were to be done in the right way and with the right results no such shortcuts were permissible. In fact, Massachusetts delayed adopting a new constitution for four years into the Revolution and in the process provided others with a model of founding by special convention and ratification by the people.

By this general line of reasoning Britain would be no model at all. Indeed, the anonymous author of Four Letters on Interesting Subjects (no. 19) could deny that the English, given their "absolute legislative powers," had anything that might properly be called a constitution. Further, he insisted on fixing "all the great rights which man never mean, nor ever ought, to lose" through constitutional guarantees; nothing less would offer adequate security. Similarly, any alterations that might be prompted by periodic examination of a constitution should require approval by "a clear majority of all the inhabitants."

A Self-denying Ordinance

Against these constitutional restraints would arise a host of pressing claims--of convenience, of alleged necessity, of unprecedented circumstances, of a presumed "contrary sense of the people." Hamilton and Madison, in sharply reasoned statements that precede the writing of the Constitution, took arms against these claims. Writing as Phocion (no. 21), Hamilton insisted on treating a constitution as prescribing the scope of governmental discretion and binding governors and governed alike until it was "dissolved with the same solemnity and certainty with which it was made." Madison, writing as an advisor to those contemplating a constitution for the as yet unformed state of Kentucky, took a similar hard line against "temporary deviations from fundamental principles." While he was loath to define the "indefinite"--for Madison, no less than for Hamilton, a government had to have the power to govern--"it is very practicable ... to enumerate the essential exceptions" to legislative power. Both the people and their agents must be restrained from doing just anything they took a fancy to. (See Madison to Caleb Wallace, 23 Aug. 1785.)

Here, then, was a test to which any proposed or existing constitution had to be put. Would it, in fact, render government both popular and safe--responsive and accountable to the people's will yet no mere unthinking reflex of that will? For Madison the immediate and pressing question was whether the newly proposed Constitution would indeed make for safe government. There were, he confessed to Jefferson (no. 22), reasons to fault the plan. Though it represented an advance over the Articles of Confederation--"a Confederacy of independent States"--it still was not more than "a feudal system of republics." As such it was not adequate to secure the federal government against the encroachments of the states nor "to prevent instability and injustice in the legislation of the States." The remedy for Madison lay in a congressional power to veto state laws, a proposal he had steadfastly fought for in the Philadelphia Convention but to no avail. "It may be asked how private rights will be more secure under the Guardianship of the General Government than under the State Governments, since they are both founded on the republican principle which refers the ultimate decision to the will of the majority. . . ." Madison found the answer to that question in the very extent of the republic: its sheer size and heterogeneity made possible the benign application of that "reprobated axiom of tyranny," divide and rule. But if a large republic made it difficult for "oppressive combinations" to form, so too did it make it difficult for "a defensive concert" against administrative tyranny. Here the Constitution ought to be scrutinized to see whether the government it established is "sufficiently controuled itself, from setting up an interest adverse to that of the entire Society." Further detailed evidence of what Madison took to be the ingredients of a sufficiently controlled government may be gathered from his close critique of Jefferson's draft of a constitution for Virginia, observations written for the would-be founding fathers of Kentucky (no. 25).

In both these instances, as Madison got down to cases, his writing testifies amply to the reciprocal influence of practice and theory in the formation of constitutional government in America. Long experience (stretching back to life under the earliest colonial charters) informed the Founders' reasoning, even while their study of the approved authorities on government led them to new directions.

The Founders' Constitution
Volume 1, Chapter 17, Introduction
The University of Chicago Press

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