Constitutionalism: American Colonies

Two factors shaped the extraordinary period of constitutionalism in the new United States that stretched from the creation of republican governments at the state level in the 1770s and 1780s to the ratification of the federal Constitution in the late 1780s. The first factor was the intense debate about the principles of the English constitution in the seventeenth century. The second factor was the equally fractious dispute about the constitutional relationship between England and its American colonies in the seventeenth and eighteenth centuries. Building on these influences, newly independent Americans crafted a distinctive form of constitutionalism in the crucial years following the Declaration of Independence.

english constitutionalism in the seventeenth century

The nature of the English constitution was one of the central political problems of the turbulent seventeenth century. Both before and after the English civil war (1642–1648), the Stuart kings contended that the source of all political and legal authority rested with the crown as the result of a divine grant. As such, they claimed the right to rule without regard to constitutional limits. In response to this assertion of royal authority, many English lawyers argued that, although the king had certain legal prerogatives, the English constitution prevented him from ruling contrary to law.

This conception of the English constitution as one that limited royal authority had deep roots in English history, but it reached its fullest expression in the work of seventeenth-century lawyers and parliamentarians such as Edward Coke. For Coke, the English constitution was the product of a long, customary evolution, which legitimated its precepts by ensuring that they had been tried and tested by time. The English constitution was therefore never conceived of as one written document, but rather as a series of customary principles, statutory enactments, and institutions, principally Parliament and juries.

This "ancient" constitution accorded all Englishmen rights to life, liberty, and property, rights that inhered in the subject and were seen as a "birthright" or inheritance. Also central to this English understanding of the constitution was the idea of consent. According to seventeenth-century jurists, English subjects could not be bound by any laws that they had not consented to through their representatives in Parliament.

One of the main sources of political strife in seventeenth-century England was the tension between this conception of the English constitution as a limitation on royal authority, and the more expansive conception of the royal prerogative propounded by the Stuart monarchs. Most of the English colonies in America were founded in the seventeenth century and thus were heavily shaped by these debates about the nature of the English constitution.

colonial constitutionalism

The English colonization of America in the seventeenth century was undertaken primarily by private groups or individuals under the auspices of a royal license or charter. The royal charter granted the settlers territorial rights in the New World, along with the ability to create local governing institutions.

One result of the private, decentralized nature of English colonization was that the English colonies in the seventeenth century developed a variety of constitutional forms. Some colonies were corporate. In these, the royal charter was granted to a group of individuals who formed a company (such as the Massachusetts Bay Company). Other colonies were proprietary, where the charter was given to a courtier or royal favorite (such as Lord Baltimore in Maryland and William Penn in Pennsylvania). Royal colonies were the third and final type. These colonies were ruled directly by the crown through a royal governor. Although rare in the seventeenth century—they often resulted from the crown's revocation of a corporate or proprietary charter—royal colonies became increasingly common in the eighteenth-century empire.

Because of the crown's lax oversight, all of these seventeenth-century colonies initially had a large degree of de facto autonomy. This autonomy allowed them the space to develop indigenous constitutional forms by supplementing the royal authority granted in their charters with agreements made by the settlers. Such efforts were particularly pronounced in New England, where the original settlers, drawing on biblical ideas, often created their own political authority with a covenant or compact by which they pledged to govern themselves by certain mutually agreed-upon rules.

Despite the constitutional autonomy and pluralism of the seventeenth-century colonies, the royal charters were central to colonial constitutionalism. By granting the colonists English law and rights, the charters provided the basis for the colonists to develop governing institutions through which they could exercise their English rights, most centrally the right to consent through local assemblies. Over time, the colonists came to see their assemblies as the equivalent of Parliament in England.

Notwithstanding the grant of English rights in the charters, throughout the entire colonial period the crown saw itself as the source of all legal authority in the empire. In particular it viewed the colonies as dependent polities whose charters could be annulled, and whose governing institutions, the colonial assemblies, had no more authority than local governments in England. The tension between this royal understanding of the imperial constitution and the colonial claims for the full rights of English subjects was to have a significant impact on the subsequent history of American constitutionalism.

The decentralized empire of the early seventeenth century gave way after the Restoration (1660) to a series of royal attempts at imperial centralization, which culminated in the Dominion of New England (1685–1688), an ambitious royal consolidation of all of the northern colonies. This process was halted by the Glorious Revolution, which brought about the fall of the Stuarts and the ascendancy of William and Mary to the throne, in England and America (1688–1689).

As a result of the Glorious Revolution, the crown accepted the existence of the colonial assemblies as part of the governing structure of the eighteenth-century empire. Although the centralizing impulses of the Stuarts had been checked, over the course of the eighteenth century many previously private colonies became royal; and most of those colonies that remained in corporate and proprietary hands adopted a common constitutional structure of governor, council, and elected assembly.

However, despite these concessions, the crown in the eighteenth century continued to view the colonies as dependent polities. In particular it insisted on its prerogative right both to summon and dissolve colonial assemblies, as well as on its ability to suspend the operation of colonial laws pending royal approval. It also claimed the right to appoint and dismiss colonial judges "at pleasure." As a result, in the decades following the Glorious Revolution, there was a constitutional asymmetry in the empire, with the crown retaining a series of prerogative powers in the colonies that it no longer exercised in England.

The eighteenth century also witnessed the rise of parliamentary authority within the realm, a development that was to prove even more problematic for the empire than the continuing claims of royal prerogative. In response to the constitutional uncertainty of the previous century, many Britons celebrated the fact that the ultimate source of political authority was now the king-in-Parliament. In particular, they argued that this new sovereign entity provided political stability by avoiding the conflicts between the crown and Parliament that had plagued the seventeenth-century constitution. These Britons also argued that parliamentary government ensured the liberty of the subject by perfectly balancing the competing claims of monarchy, aristocracy, and the people.

These metropolitan defenders of Parliament in the eighteenth century also held that it was sovereign over all British subjects, both inside and outside the realm. As a result, in the crucial years following the end of the Seven Years' War (1756–1763), Parliament claimed that it had the constitutional authority to levy taxes on the colonies; and, most crucially, in the Declaratory Act (1766), it held that it could legislate for the colonies in "all cases whatsoever."

The colonists, however, denied the Parliament this constitutional authority. Drawing on their understanding of the seventeenth-century English constitution, they argued that they had the same rights as British subjects within the realm, and that the only way these rights could be secured was through their own assemblies. As the imperial crisis of the 1760s and 1770s unfolded, the colonists employed the idea of consent to resist, at first, parliamentary taxation and, finally, all parliamentary legislation. Drawing on English constitutional principles as well as newer ideas of natural rights, they began to conceive of the constitution of the empire as linking them in a consensual manner solely to the crown, with no subordination to the British Parliament or people.

revolutionary constitutionalism

When, following the Boston Tea Party (1773), Parliament, with the acquiescence of the crown, passed the Coercive Acts (1774), imperial authority over English America began to dissolve. Starting with extralegal congresses and committees, the colonists began to create their own constitutions, a process formally sanctioned by the Continental Congress in 1776. The form that these new state constitutions took was heavily influenced by the colonists' experience with constitutionalism in the empire.

Most important, the constitutional uncertainty of the empire led the colonists to desire written constitutions in order to provide explicit guarantees for their rights. As leading American political writers argued, because the unwritten and customary English constitution lacked such guarantees, it was not in fact a constitution at all, but simply a vehicle for the unlimited power of the crown and Parliament. The long experience of living under written charters also predisposed the colonists to place ultimate constitutional authority in written documents.

Drawing on their indigenous tradition of colonial compacts and covenants, the Americans also came up with novel ways to design and implement these new written constitutions. Beginning first in Massachusetts, they devised the constituent assembly, a body convened for the sole purpose of drafting the constitution, thus avoiding the problem of sitting legislatures writing constitutions that would enhance their own authority. The new constitution was then submitted to the people for ratification, thus ensuring that it would rest on popular consent.

As a result of their colonial experience, then, the Americans were able to create new republican state constitutions that functioned as fundamental law, and that formally specified and limited the powers of the various branches of government. These new state constitutions also included bills of rights, thus guaranteeing constitutional protection for certain fundamental liberties, something that the colonists had felt was lacking in the imperial constitution.

At the same time as they were writing their constitutions, the newly independent republican states had to devise some form of continental union. Once again, the experience of empire was crucial, for it had habituated the colonists to living under two different sources of authority—imperial and local—as well as making them aware of the importance of clearly specifying the respective authority of the national and local levels of government. As a result, following the ill-fated Articles of Confederation (1781), the framers developed a federal Constitution (1787) that, unlike the imperial constitution, formally divided power among the state governments and the new national government while vesting ultimate constitutional authority in a written document subject to ratification and amendment by the people.

See alsoAmerica and the World; Articles of Confederation; Bill of Rights; Colonization Movement; Concept of Empire; Congress; Constitution, Ratification of; Constitutional Law; Founding Fathers; Government: Overview; Liberty; Revolution as Civil War: Patriot-Loyalist Conflict .

bibliography

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Greene, Jack P. Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States, 1607–1788. Athens: University of Georgia Press, 1986.

Lutz, Donald S. The Origins of American Constitutionalism. Baton Rouge: Louisiana State University Press, 1988.

McLaughlin, Andrew C. The Foundations of American Constitutionalism. New York University Press. 1932. Reprint, Union, N.J.: Lawbrook Exchange, 2002.

Craig Bryan Yirush