American Revolution and Constitutional Theory

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AMERICAN REVOLUTION AND CONSTITUTIONAL THEORY

The era of the American Revolution was one of the greatest and most creative periods of constitutionalism in modern history. The American revolutionaries virtually established the modern idea of a written constitution. There had, of course, been written constitutions before in Western history, but the Americans did something new and different. They made written constitutions a practical and everyday part of governmental life. They showed the world how written constitutions could be made truly fundamental and distinguishable from ordinary legislation and how such constitutions could be interpreted on a regular basis and altered when necessary. Further, they offered the world concrete and usable governmental institutions for carrying out these constitutional tasks.

Before the era of the American Revolution a constitution was rarely distinguished from the government and its operations. In the English tradition a constitution referred not only to fundamental rights but also to the way the government was put together or constituted. "By constitution," wrote Lord Bolingbroke in 1733, "we mean, whenever we speak with propriety and exactness, 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." The English constitution, in other words, included both fundamental principles and rights and the existing arrangement of governmental laws, customs, and institutions.

By the end of the revolutionary era, however, the Americans' idea of a constitution had become very different from that of the English. A constitution was now seen to be no part of the government at all. A constitution was a written document distinct from, and superior to, all the operations of government. It was, as thomas paine said in 1791, "a thing antecedent to a government, and a government is only the creature of a constitution." And, said Paine, it was "not a thing in name only; but in fact." For the Americans a constitution was like a Bible, possessed by every family and every member of government. "It is the body of elements, to which you can refer, and quote article by article; and which contains … everything that relates to the complete organization of a civil government, and the principles on which it shall act, and by which it shall be bound." A constitution thus could never be an act of a legislature or of a government; it had to be the act of the people themselves, declared james wilson in 1790, one of the principal Framers of the federal Constitution in 1787; and "in their hands it is clay in the hands of a potter; they have the right to mould, to preserve, to improve, to refine, and furnish it as they please." If the English thought this new idea of a constitution resembled, as Arthur Young caustically suggested in 1792, "a pudding made by a recipe," the Americans had become convinced the English no longer had a constitution at all.

It was a momentous transformation of meaning in a short period of time. It involved not just a change in the Americans' political vocabulary but an upheaval in their whole political culture.

The colonists began the imperial crisis in the early 1760s thinking about constitutional issues in much the same way as their fellow Britons. Like the English at home, they believed that the principal threat to the people's rights and liberties had always been the prerogative powers of the king, those ancient but vague and discretionary rights of authority that the king possessed in order to carry out his responsibility for governing the realm. Indeed, the whole of English history was seen as a perennial struggle between these two conflicting rights—between a centralizing monarchy trying to fulfill its obligation to govern, on the one hand, and, on the other, local-minded nobles and people, in the House of Lords and the House of Commons, trying to protect their liberties. Each of the great political events of England's past, from the Norman Conquest to the Glorious Revolution, marked a moment defining the proper relationship between these two sets of conflicting rights—between power and liberty.

The eighteenth-century colonists had no reason to think about government much differently. Time and again they had been forced to defend their liberties against the intrusions of royal prerogative power. Relying for their defense on their colonial assemblies, their miniature counterparts to the House of Commons, they invoked their rights as Englishmen and what they called their ancient colonial charters as devices guaranteeing the rights of the people against their royal governors. In fact, the entire English past was littered with such charters and other written documents to which the English people had repeatedly appealed in defense of their rights against the crown's power. All these documents, from magna carta to the bill of rights of 1689, were merely written evidence of those "fixed principles of reason" from which Bolingbroke had said the English constitution was derived.

Although eighteenth-century Englishmen talked about the fixed principles and the fundamental law of the constitution, few of them doubted that Parliament, as the representative of the nobles and people and as the sovereign lawmaking body of the nation, was the supreme guarantor and interpreter of these fixed principles and fundamental law. Parliament was in fact the bulwark of the people's liberties against the crown's encroachments; it alone defended and confirmed the people's rights. The petition of right, the habeas corpus act of 1679, and the Bill of Rights were all acts of Parliament, mere statutes not different in form from other laws.

For Englishmen, therefore, as william blackstone, the great eighteenth-century jurist, pointed out, there could be no distinction between the "constitution or frame or government" and "the system of laws." All were of a piece: every act of Parliament was part of the English constitution and all law, customary and statute, was thus constitutional. "Therefore," concluded the British theorist William Paley, "the terms constitutional and unconstitutional mean legal and illegal. "

Nothing could be more strikingly different from what Americans came to believe. Indeed, it was precisely on this distinction between "legal" and "constitutional" that the American and British constitutional traditions most obviously diverged at the Revolution. During the 1760s and 1770s the colonists came to realize that although acts of Parliament, like the Stamp Act of 1765, might be legal, that is, in accord with the acceptable way of making law, such acts could not thereby be automatically considered constitutional, that is, in accord with the basic rights and principles of justice that made the English constitution the palladium of liberty that it was. It was true that the English Bill of Rights and the Act of Settlement in 1689 were only statutes of Parliament, but surely, the colonists insisted in astonishment, they were of "a nature more sacred than those which established a turnpike road." Under this pressure of events the Americans came to believe that the fundamental principles of the English constitution had to be lifted out of the lawmaking and other processes and institutions of government and set above them. "In all free States," said the revolutionary leader samuel adams in 1768, "the Constitution is fixed; and as the supreme Legislature derives its Powers and Authority from the Constitution, it cannot overleap the Bounds of it without destroying its own foundation." Thus, in 1776, when Americans came to frame their own constitutions for their newly independent states, they inevitably sought to make them fundamental and to write them out explicitly in documents.

It was one thing, however, to define a constitution as fundamental law, different from ordinary legislation and circumscribing the institutions of government; it was quite another to make such a distinction effective. In the years following the declaration of independence, many Americans paid lip service to the fundamental character of their state constitutions, but, like eighteenth-century Britons, they continued to believe that their legislatures were the best instruments for interpreting and changing those constitutions. The state legislatures represented the people, and the people, it seemed, could scarcely tyrannize themselves. Thus, in the late 1770s and the early 1780s several state legislatures, acting on behalf of the people, set aside parts of their constitutions by statute and interpreted and altered them, as one American observed, "upon any Occasion to serve a purpose." Time and again, the legislatures interfered with the governor's designated powers, rejected judicial decisions, disregarded individual liberties and property rights, and in general, as one victim complained, violated "those fundamental principles which first induced men to come into civil compact."

By the mid-1780s many American leaders had come to believe that the state assemblies, not the governors as they had thought in 1776, were the political authority to be most feared. Legislators were supposedly the representatives of the people who annually elected them; but "173 despots would surely be as oppressive as one," wrote thomas jefferson."An elective despotism was not the government we fought for." It increasingly seemed to many that the idea of a constitution as fundamental law had no practical meaning at all. "If it were possible it would be well to define the extent of the Legislative power," concluded a discouraged james madison in 1785, "but the nature of it seems in many respects to be indefinite."

No one wrestled more persistently with this problem of distinguishing between statutory and fundamental law than Jefferson. By 1779, Jefferson had learned from experience that assemblies "elected by the people for the ordinary purposes of legislation only have no power to restrain the acts of succeeding assemblies." Thus, he realized that to declare his great virginia statute of religious liberty to be "irrevocable would be of no effect in law; yet we are free," he wrote into the bill in frustration, "to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right." But such a paper declaration was obviously not enough; he realized that something more was needed. By the 1780s, both he and Madison were eager "to form a real constitution" for Virginia; the existing one, enacted in 1776, was merely an "ordinance," with no higher authority than the other ordinances of the same session. They wanted a constitution that would be "perpetual" and "un-alterable by other legislatures." But how? If the constitution were to be truly fundamental and immune from legislative tampering, somehow it would have to be created, as Jefferson put it, "by a power superior to that of the legislature."

By the time Jefferson came to write his Notes on the State of Virginia in the early 1780s, the answer had become clear: "To render a form of government unalterable by ordinary acts of assembly," said Jefferson, "the people must delegate persons with special powers. They have accordingly chosen special conventions to form and fix their governments." The conventions and congresses of 1775–1776 had been legally deficient legislatures made necessary by the refusal of the royal governors to call together the regular and legal representatives of the people. Now, however, these conventions were seen to be special alternative representations of the people temporarily given the exclusive authority to frame or amend constitutions. When Massachusetts and New Hampshire wrote new constitutions in 1780 and 1784, the proper pattern of constitution making and altering was set: constitutions were formed or changed by specially elected conventions and then placed before the people for ratification. Thus, in 1787 those who wished to change the federal government knew precisely what to do: they called a constitutional convention in Philadelphia and sent the resultant document to the states for approval. Even the French in their own revolution several years later followed the American pattern.

With the idea of a constitution as fundamental law immune from legislative encroachment more firmly in hand, some state judges during the 1780s began cautiously moving in isolated cases to impose restraints on what the assemblies were enacting as law. In effect, they said to the legislatures, as george wythe, judge of Virginia's highest court did in 1782, "Here is the limit of your authority; and hither shall you go, but no further." These were the hesitant beginnings of what would come to be called judicial review, that remarkable American practice by which judges in the ordinary courts of law have the authority to determine the constitutionality of acts of the state and federal legislatures.

In just these ways did Americans in the revolutionary era devise regular and everyday constitutional institutions both for controlling government and thereby protecting the rights of individuals and for changing the very framework by which the government operated.

Gordon S. Wood
(1992)