Constitution

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CONSTITUTION

At the time of the Stamp Act controversy, a British lord told benjamin franklin that Americans had wrong ideas about the British constitution. British and American ideas did differ radically. The American Revolution repudiated the British understanding of the constitution; in a sense, the triumph in America of a novel concept of "constitution" was the "revolution." The British, who were vague about their unwritten constitution, meant by it their system of government, the common law, royal proclamations, major legislation such as magna carta and the bill of rights, and various usages and customs of government animating the aggregation of laws, institutions, rights, and practices that had evolved over centuries. Statute, however, was the supreme part of the British constitution. After the Glorious Revolution of 1688–1689, Parliament dominated the constitutional system and by ordinary legislation could and did alter it. Sir william blackstone summed up parliamentary supremacy when he declared in his Commentaries (1766), "What Parliament doth, no power on earth can undo."

The principle that Parliament had unlimited power was at the crux of the controversy leading to the American Revolution. The American assertion that government is limited undergirded the American concept of a constitution as a fundamental law that imposes regularized restraints upon power and reserves rights to the people. The American concept emerged slowly through the course of the colonial period, yet its nub was present almost from the beginning, especially in New England where covenant theology, social compact theory, and higher law theory blended together. thomas hooker in 1638 preached that the foundation of authority lay in the people who might choose their governors and "set bounds and limitations on their powers." A century later Jared Elliot of Massachusetts preached that a "legal government" exists when the sovereign power "puts itself under restraints and lays itself under limitations. This is what we call a legal, limited, and well constituted government." Some liberal theologians viewed God himself as a constitutional monarch, limited in power because he had limited himself to the terms of his covenant with mankind. Moreover God ruled a constitutional universe based on immutable natural laws that also bound him. Jonathan Mayhew preached in Boston that no one has a right to exercise a wanton sovereignty over the property, lives, and consciences of the people—"such a sovereignty as some inconsiderately ascribe to the supreme governor of the world." Mayhew explained that "God himself does not govern in an absolute, arbitrary, and despotic manner. The power of this almighty king is limited by law; not indeed, by acts of Parliament, but by the eternal laws of truth, wisdom, and equity.…"

Political theory and law as well as religion taught that government was limited; so did history. But the Americans took their views on such matters from a highly selective and romanticized image of seventeenth-century England, which they perpetuated in America even as England changed. Seventeenth-century England was the England of the great struggle for constitutional liberty by the common law courts and Puritan parliaments against despotic Stuart kings. Seventeenth-century England was the England of edward coke, john lilburne, and john locke. It was an England in which religion, law, and politics converged with theory and experience to produce limited monarchy and, ironically, parliamentary supremacy. To Americans, however, Parliament had bound itself by reaffirming Magna Carta and passing the habeas corpus act, the Bill of Rights, and the toleration act, among others. Locke had taught the social contract theory; advocated that taxation without representation or consent is tyranny; written that "government is not free to do as it pleases," and referred to the "bounds" which "the law of God and Nature have set to the legislative power of every commonwealth, in all forms of government."

Such ideas withered but did not die in eighteenth-century England. cato ' sletters popularized Locke on both sides of the Atlantic; Henry St. John (Viscount Bolingbroke) believed that Parliament could not annul the constitution; Charles Viner's General Abridgment of Law and Equity endorsed Coke's views in Dr. bonham ' s case (1610); and even as Parliament debated the Declaratory Act (1766), which asserted parliamentary power to legislate for America "in all cases whatsoever," charles pratt (Lord Camden) declared such a power "absolutely illegal, contrary to the fundamental laws of … this constitution.…" Richard Price and Granville Sharpe were two of the many English radicals who shared the American view of the British constitution.

taxation without representation provoked Americans to clarify their views. james otis, arguing against the tax on sugar, relied on Dr. Bonham's Case and contended that legislative authority did not extend to the "fundamentals of the constitution," which he believed to be fixed. thomas hutchinson, a leading supporter of Parliament, summed up the American constitutional reaction to the stamp tax duties by writing, "The prevailing reason at this time is, that the Act of Parliament is against Magna Charta and the natural rights of Englishmen, and therefore according to Lord Coke, null and void." The townshend act duties led to American declarations that the supreme legislature in any free state derives its power from the constitution, which limits government. john dickinson, inan essay reprinted throughout the colonies, wrote that a free people are not those subject to a reasonable exercise of government power but those "who live under a government so constitutionally checked and controlled, that proper provision is made against its being otherwise exercised." J. J. Zubly of Georgia was another of many who argued that no government, not even Parliament, could make laws against the constitution any more than it could alter the constitution. An anonymous pamphleteer rhapsodized in 1775 about the "glorious constitution worthy to be engraved in capitals of gold, on pillars of marble; to be perpetuated through all time, a barrier, to circumscribe and bound the restless ambition of aspiring monarchs, and the palladium of civil liberty.…" tom paine actually argued that Great Britain had no constitution, because Parliament claimed to exercise any power it pleased. To Paine a constitution could not be an act of the government but of "people constituting government.… A constitution is a thing antecedent to a government; a government is only the creature of the constitution."

Thus, by "constitution," Americans meant a supreme law creating the government, limiting it, unalterable by it, and above it. When they said that an act of government was unconstitutional, they meant that the government had acted lawlessly because it lacked the authority to perform that act. Accordingly the act was not law; it was null and void, and it could be disobeyed. By contrast when the British spoke of a statute being unconstitutional, they meant only that it was impolitic, unwise, unjust, or inexpedient, but not that it was beyond the power of the government to enact. They did not mean that Parliament was limited in its powers and had exceeded them.

The American view of "constitution" was imperfectly understood even by many leaders of the revolutionary movement as late as 1776. The proof is that when the states framed their first constitutions, the task was left to legislatures, although some received explicit authorization from the voters. thomas jefferson worried because Virginia had not differentiated fundamental from ordinary law. Not until Massachusetts framed its constitution of 1780 by devising a constitutional convention did the American theory match practice. When the constitutional convention of 1787 met in Philadelphia, the American meaning of a constitution was fixed and consistent.

Leonard W. Levy
(1986)