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Fundamental Law (History)


The institution of a written constitution as fundamental law superior to and limiting ordinary statutory law and government, which we now take for granted, was distinctively American. The concept of fundamental law embodied in a written constitution was one of the most influential and radical ideas to emerge from the american revolution. It involved a break with the recent English past.

The notion of fundamental law has had a continuing history in Western political thought. Mid-seventeenth century Englishmen anticipated the use of a written constitution as the foundation of government, but the halfhearted experiment did not last. Fundamental law remained an ill-defined and vague term then, standing for the customary constitution as distinguished from revolutionary change. Parliamentarians accused Charles I and James II of attempting by arbitrary acts to subvert the fundamental laws of the realm, especially the traditional rights of liberty and property. Although interest in fundamental law declined in the eighteenth century, the concept never lost its attractiveness for the English. However, the growing acceptance of the omnipotence of Parliament made the idea of a single written instrument creating and limiting the government decidedly obsolete, because no restraints existed on parliamentary power, and for that reason Americans would finally repudiate the unwritten English constitution as less than the embodiment of truly fundamental law.

Reformist ideas about law, current in early seventeenth-century England, influenced the settlers of early America in the creation of their legal systems. The colonists developed a conception of the sources and nature of law that was much more expansive than the traditionally narrow conception of the English common law. This broad approach reflected the fundamentally altered state of many aspects of law in the New World. Leaders of the American colonies also assimilated new currents in political thought which led to the conclusion that fundamental or natural law lay behind the civil law of every nation. Fundamental law became equated in their minds with natural law or the law of nature. Many residents of the New World regarded their charters from the crown as a fundamental source for their basic rights as Englishmen.

The revolutionary ferment of the 1760s and 1770s in the American colonies produced the idea of a written constitution embodying fundamental law. Americans regarded as unconstitutional several of Parliament's statutes governing America. In 1761 james otis argued that writs of assistance were "against the fundamental Principles of Law." Like the English a century earlier, Americans gravitated toward an understanding of a constitution as something antecedent and paramount to all branches of government, including even their legislative representatives. Fundamental law controlled statutory law. A 1760 Letter to the People of Pennsylvania noted the relevance to forming a plan of government of "the fundamental laws and rules of the constitution, which ought never to be infringed.…" Writing against the authority of Parliament over the colonies in 1774, john adams regarded New Englanders as deriving their laws "not from parliament, not from common law, but from the law of nature and the compact made with the king in our charter.… English liberties are but certain rights of nature, reserved to the citizen by the English constitution, which rights cleaved to our ancestors when they crossed the Atlantic.…"

The process of state constitution-making that began in 1776 led to eleven written constitutions by 1780, but the basic and largely unchanging nature of such documents was not fully recognized in practice in the first decade, mainly because the first constitutions granted predominant power to the legislatures. Criticisms of excessive legislative activity in the 1780s led to general acceptance of the idea that constitutions should serve as fundamental laws to control legislatures. thomas jefferson eagerly sought a Virginia constitution that the legislature could not easily change.

The American states gradually came to regard their written constitutions as fundamental or higher laws superior to ordinary legislative acts—which meant restrictions on legislative power, because ordinary courts of law eventually implemented the written constitutions through a process of judicial review. The argument in favor of the innovative practice of judicial review was that fundamental laws were predominant. Thus the constitutional convention that met in Philadelphia in 1787 accepted the notion that a legislature could not change a constitution without the calling of a special constitutional convention. The recognition of the new federal Constitution as a fundamental law required the calling of special ratifying conventions to avoid disputes about its legitimacy. This process of creating fundamental law through constitution-making was the source of the basic appeal of the American Revolution to continental Europeans.

David H. Flaherty


Gough, J.W. (1955) 1971 Fundamental Law in English Constitutional History. Oxford: Clarendon Press.

Mellett, Charles F. (1933) 1966 Fundamental Law and the American Revolution 1760–1776. New York: Octagon.

Wood, Gordon S. 1969 The Creation of the American Republic, 1776–1787. Chapel Hill: University of North Carolina Press.

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