TWELVE: THE AMERICAN CONTRIBUTION: CONSTITUTIONALISM
1 the Founding Fathers and the British Tradition
In 1767, the British Parliament claimed it could pass any law, alarming American colonists who believed this undermined their established rights. Leaders like James Otis and Sam Adams argued that this idea contradicted the liberties their ancestors fought for. The colonists believed they were upholding the principles of the English Whig revolution. Unlike England, where power became arbitrary, the colonists argued for limits on parliamentary power, drawing from their beliefs in higher law. They were fortunate to have leaders well-versed in political philosophy, elevating America in this field compared to other nations.
2 Constitution as a Device to Limit Government
The colonists believed they had rights as British subjects, but they realized the British constitution could not protect them against Parliament's claims. They concluded that a "fixed constitution" was essential for free government and that such a constitution must limit government powers. They learned from their history, which included written documents like the Mayflower Compact, that a constitution establishes and restricts government powers. It should protect against arbitrary actions by the government and clarify that all authority derives from the people, ensuring a system of rules that govern how power is used.
3 a Constitution of Liberty
The idea of a higher law that guides legislation has ancient roots, often associated with divine or natural law. The Revolutionary colonists were among the first to put this concept into practice by formally writing it down. The federal Constitution became a significant model for future governments worldwide. A key difference between a constitution and ordinary laws is that while laws apply to specific cases, a constitution sets general principles that the legislature must follow when creating laws. This ensures that short-term interests do not override broader, long-term goals.
Legislators, like individuals, are likely to prioritize immediate aims but should not compromise established principles for temporary gains. Allowing a separate body to modify fundamental principles can help maintain balance and allow appropriate time to evaluate the significance of specific legislative needs. A constitutional system does not completely limit the people's will; instead, it requires majority decisions to align with previously agreed-upon principles that guide long-term governance.
This separation of powers acknowledges the need for a structure that values proven principles over quick fixes. It underscores that social order relies on shared beliefs and institutions, which form the foundation for lawmaking. Therefore, no one or group can impose arbitrary laws on others. Constitutionalism hinges on the idea that power should reflect common values and the will of the people, rather than being a tool for any temporary majority.
Establishing long-term principles actually empowers people by restricting governmental powers and ensuring their rights against arbitrary actions. The Constitution was designed not just to allocate power but to create a framework of liberty that safeguards individuals from oppression.
4 the State Constitutions and the Bills of Rights
Between the Declaration of Independence and the creation of the federal Constitution, the thirteen states tried out different ideas about limited government. Their constitutions often highlighted individual rights, either directly in the documents or as separate Bills of Rights. These rights mostly reflected what colonists felt entitled to and addressed current issues, illustrating the concept of constitutionalism. Virginia's Bill of Rights influenced others and later European documents. Although many principles, like the separation of powers, were recognized, state legislatures often acted with too much power, sometimes ignoring the constitutions. Ultimately, having a written constitution was not enough; effective mechanisms were needed to ensure protection of rights.
5 the Discovery of Federalism: Dividing Power Is Limiting Power
The American Constitution was designed intentionally by its creators, who wanted to build a new government that reflected their ideals. This effort marked a departure from old traditions and was based on rational thought. However, the final structure of the government emerged in unexpected ways, influenced by past principles and historical events.
When the Federal Convention met in 1787, the leaders faced two main challenges: they needed to strengthen the weak powers of the existing confederation while also limiting government power whenever possible. The leaders recognized the risk posed by state legislatures and sought to create a more effective national government. James Madison proposed that strengthening the national government would also provide the necessary checks against the overreach of state power. This led to the realization that dividing powers among different levels of government is crucial, as it effectively restricts the total power any one group can wield.
In addition to dividing power, the Constitution includes provisions to protect individual rights. Initially, some argued against a Bill of Rights, fearing it could imply that the government had powers it did not possess. They believed the Constitution inherently protected rights that couldn't be fully listed. However, it soon became clear that a Bill of Rights was needed to safeguard individuals from potential government infringement on their freedoms. This led to the inclusion of a provision ensuring that listing certain rights in the Constitution does not deny others retained by the people.
Furthermore, the separation of powers established a presidential republic, creating a system where the president could be from a different political party than the legislature. This arrangement, while protective of liberty, may hinder the executive's effectiveness, raising questions about its overall efficiency.
6 the Evolution of Judicial Review
Judicial review is the power of courts to declare laws unconstitutional, and it is a crucial part of constitutional law. This idea was recognized by some drafters of the Constitution, and it became legally established through the Supreme Court decision in Marbury v. Madison, where Chief Justice Marshall articulated its importance. While the Supreme Court didn't use this power often for a period of fifty-four years, state courts frequently did. During this time, key legal thinkers contributed to understanding individual liberties and the role of the Constitution in protecting them. Additionally, discussions around the separation of powers highlighted the need to distinguish between "general laws" that apply to everyone and "special acts." This distinction became an important limit on legislation, reflecting the intention to control laws through the Constitution.
7 the Curious Story of Due Process
By the middle of the 20th century, the Supreme Court firmly established its authority to review laws for their constitutionality. The focus shifted from broad ideas about government to specific limits set by the Constitution. As the idea of popular sovereignty gained popularity, courts became seen as unable to declare laws unconstitutional based on a general spirit of the Constitution. This left the Court grappling with laws that seemed wrong but had no explicit prohibition. The "due process" clauses in the Fifth and Fourteenth Amendments began to play a crucial role, influencing both individual rights and government regulation of the economy. Eventually, the Court started judging the reasons behind laws instead of their actual legality, which led it to take on a role similar to that of the legislature and created conflicts with public opinion and the Executive branch.
8 the Great Crisis of 1937
The crisis of 1937 marked a significant conflict between the Executive branch, led by President Franklin D. Roosevelt, and the Supreme Court. During the severe economic depression, Roosevelt believed he needed strong powers to enact necessary reforms, which led to tensions with a court that had traditionally judged laws based on their reasonableness. The Supreme Court struck down some of Roosevelt's key measures, which prompted him to propose the "Court Packing Bill" to change the Court's structure. Although this initiative ultimately failed, the court began to align more with Roosevelt's programs, believing they had public support. This situation highlighted the importance of maintaining the integrity of the constitutional system over immediate legislative goals. The Senate Judiciary Committee's report emphasized the necessity of rule by law, protecting the court from being swayed by fleeting public sentiments, thus reaffirming the core principles of American government.
9 the Influence of the American Model
The American Constitution has been very successful and is a unique way of organizing government, but it is not the final word on how to do this. Its main ideas are more important than the specific rules. In the U.S., the legislature has to follow general rules that can apply to different situations. If it breaks a long-standing principle, it must go through a detailed process to check if people's beliefs have changed. Judicial review helps make sure laws follow these principles but doesn’t completely stop change. This approach prevents the government from acting without thinking ahead and influenced the European movement for constitutionalism and the rule of law.
1 the Founding Fathers and the British Tradition
In 1767, the British Parliament claimed it could pass any law, alarming American colonists who believed this undermined their established rights. Leaders like James Otis and Sam Adams argued that this idea contradicted the liberties their ancestors fought for. The colonists believed they were upholding the principles of the English Whig revolution. Unlike England, where power became arbitrary, the colonists argued for limits on parliamentary power, drawing from their beliefs in higher law. They were fortunate to have leaders well-versed in political philosophy, elevating America in this field compared to other nations.
2 Constitution as a Device to Limit Government
The colonists believed they had rights as British subjects, but they realized the British constitution could not protect them against Parliament's claims. They concluded that a "fixed constitution" was essential for free government and that such a constitution must limit government powers. They learned from their history, which included written documents like the Mayflower Compact, that a constitution establishes and restricts government powers. It should protect against arbitrary actions by the government and clarify that all authority derives from the people, ensuring a system of rules that govern how power is used.
3 a Constitution of Liberty
The idea of a higher law that guides legislation has ancient roots, often associated with divine or natural law. The Revolutionary colonists were among the first to put this concept into practice by formally writing it down. The federal Constitution became a significant model for future governments worldwide. A key difference between a constitution and ordinary laws is that while laws apply to specific cases, a constitution sets general principles that the legislature must follow when creating laws. This ensures that short-term interests do not override broader, long-term goals.
Legislators, like individuals, are likely to prioritize immediate aims but should not compromise established principles for temporary gains. Allowing a separate body to modify fundamental principles can help maintain balance and allow appropriate time to evaluate the significance of specific legislative needs. A constitutional system does not completely limit the people's will; instead, it requires majority decisions to align with previously agreed-upon principles that guide long-term governance.
This separation of powers acknowledges the need for a structure that values proven principles over quick fixes. It underscores that social order relies on shared beliefs and institutions, which form the foundation for lawmaking. Therefore, no one or group can impose arbitrary laws on others. Constitutionalism hinges on the idea that power should reflect common values and the will of the people, rather than being a tool for any temporary majority.
Establishing long-term principles actually empowers people by restricting governmental powers and ensuring their rights against arbitrary actions. The Constitution was designed not just to allocate power but to create a framework of liberty that safeguards individuals from oppression.
4 the State Constitutions and the Bills of Rights
Between the Declaration of Independence and the creation of the federal Constitution, the thirteen states tried out different ideas about limited government. Their constitutions often highlighted individual rights, either directly in the documents or as separate Bills of Rights. These rights mostly reflected what colonists felt entitled to and addressed current issues, illustrating the concept of constitutionalism. Virginia's Bill of Rights influenced others and later European documents. Although many principles, like the separation of powers, were recognized, state legislatures often acted with too much power, sometimes ignoring the constitutions. Ultimately, having a written constitution was not enough; effective mechanisms were needed to ensure protection of rights.
5 the Discovery of Federalism: Dividing Power Is Limiting Power
The American Constitution was designed intentionally by its creators, who wanted to build a new government that reflected their ideals. This effort marked a departure from old traditions and was based on rational thought. However, the final structure of the government emerged in unexpected ways, influenced by past principles and historical events.
When the Federal Convention met in 1787, the leaders faced two main challenges: they needed to strengthen the weak powers of the existing confederation while also limiting government power whenever possible. The leaders recognized the risk posed by state legislatures and sought to create a more effective national government. James Madison proposed that strengthening the national government would also provide the necessary checks against the overreach of state power. This led to the realization that dividing powers among different levels of government is crucial, as it effectively restricts the total power any one group can wield.
In addition to dividing power, the Constitution includes provisions to protect individual rights. Initially, some argued against a Bill of Rights, fearing it could imply that the government had powers it did not possess. They believed the Constitution inherently protected rights that couldn't be fully listed. However, it soon became clear that a Bill of Rights was needed to safeguard individuals from potential government infringement on their freedoms. This led to the inclusion of a provision ensuring that listing certain rights in the Constitution does not deny others retained by the people.
Furthermore, the separation of powers established a presidential republic, creating a system where the president could be from a different political party than the legislature. This arrangement, while protective of liberty, may hinder the executive's effectiveness, raising questions about its overall efficiency.
6 the Evolution of Judicial Review
Judicial review is the power of courts to declare laws unconstitutional, and it is a crucial part of constitutional law. This idea was recognized by some drafters of the Constitution, and it became legally established through the Supreme Court decision in Marbury v. Madison, where Chief Justice Marshall articulated its importance. While the Supreme Court didn't use this power often for a period of fifty-four years, state courts frequently did. During this time, key legal thinkers contributed to understanding individual liberties and the role of the Constitution in protecting them. Additionally, discussions around the separation of powers highlighted the need to distinguish between "general laws" that apply to everyone and "special acts." This distinction became an important limit on legislation, reflecting the intention to control laws through the Constitution.
7 the Curious Story of Due Process
By the middle of the 20th century, the Supreme Court firmly established its authority to review laws for their constitutionality. The focus shifted from broad ideas about government to specific limits set by the Constitution. As the idea of popular sovereignty gained popularity, courts became seen as unable to declare laws unconstitutional based on a general spirit of the Constitution. This left the Court grappling with laws that seemed wrong but had no explicit prohibition. The "due process" clauses in the Fifth and Fourteenth Amendments began to play a crucial role, influencing both individual rights and government regulation of the economy. Eventually, the Court started judging the reasons behind laws instead of their actual legality, which led it to take on a role similar to that of the legislature and created conflicts with public opinion and the Executive branch.
8 the Great Crisis of 1937
The crisis of 1937 marked a significant conflict between the Executive branch, led by President Franklin D. Roosevelt, and the Supreme Court. During the severe economic depression, Roosevelt believed he needed strong powers to enact necessary reforms, which led to tensions with a court that had traditionally judged laws based on their reasonableness. The Supreme Court struck down some of Roosevelt's key measures, which prompted him to propose the "Court Packing Bill" to change the Court's structure. Although this initiative ultimately failed, the court began to align more with Roosevelt's programs, believing they had public support. This situation highlighted the importance of maintaining the integrity of the constitutional system over immediate legislative goals. The Senate Judiciary Committee's report emphasized the necessity of rule by law, protecting the court from being swayed by fleeting public sentiments, thus reaffirming the core principles of American government.
9 the Influence of the American Model
The American Constitution has been very successful and is a unique way of organizing government, but it is not the final word on how to do this. Its main ideas are more important than the specific rules. In the U.S., the legislature has to follow general rules that can apply to different situations. If it breaks a long-standing principle, it must go through a detailed process to check if people's beliefs have changed. Judicial review helps make sure laws follow these principles but doesn’t completely stop change. This approach prevents the government from acting without thinking ahead and influenced the European movement for constitutionalism and the rule of law.