Constitutionalism: Overview

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Constitutionalism: Overview

How shall we be governed, by a law of force or the force of law? Whatever its many details, the long history of constitutionalism as a concept expresses the spirit of this question and answers for the force of law. The idea of constitutionalism, as applied to the American colonies, sparked the Revolution, which has shaped the world's political structures to this day. At the time of its ratification in 1788, the Constitution of the United States became the most visible expression of a nation's belief in limited government, the rule of law, and a classical liberal vision of a good society.

limited government

Governments coerce. They do this in many ways, for better or worse. As many political theorists note, coercion is one of government's defining characteristics. Governments can be large or small, complex or rudimentary, they can be democratic or despotic, but they all commonly maintain a final coercive authority over some specified geographical area. To consider the legitimacy of government requires focus on the basis and use of its force.

History is filled with instances of abuses of power, of force used in horrendous ways. Theorists and revolutionaries alike have asked: are there no constraints? One recurring answer across the ages is that governmental force, and the officials who exercise it, ought to be constrained by a rule of law. In the fourth century b.c., Plato said in The Republic that tyrants and despots will act as if force justifies itself, but this does not make it so. Plato argued that government and its rulers must conform to some higher law, some Form of Justice.

This inspiring answer leads to a striking puzzle: Government ought to be limited in what it may do, and law specifies limits. Government may not act contrary to law. But if government ought to be constrained by law and at the same time is the final coercive authority for administering the law, then in what sense can a great power that creates law be constrained by law? This question is both deeply theoretical and deeply practical. First, one wants to know where this independent law comes from, why it has authority, and what it demands. Second, one wants to know how to structure government so that it respects this law.

Consider first the practical question about structuring government. One approach is to create a written constitution that binds all citizens and governments under its rule. A written constitution expresses law that exists prior to any particular government that may come into power under that constitution. A written constitution offers a device of constraint, a self-conscious way for government to understand its powers and limits, stating a fundamental law that all ordinary laws must respect.

These are the starting points for constitutionalism as a concept and the distinctive constitutional experiment in the United States. At its most fundamental level, constitutionalism expresses a great hope that human beings can be guided by something other than arbitrary force, celebrate the rule of law, and form a people committed to the value of limited government.

american constitutionalism

Drafted by Thomas Jefferson in 1776, the Declaration of Independence expresses this commitment to

limited government. Jefferson declares that governments are instituted to secure people's rights, including life, liberty, and the pursuit of happiness. Jefferson and the other signers drew support from a rich intellectual history of Enlightenment thought in sixteenth- and seventeenth-century Europe. They drew especially from the writings of John Locke, who conceived of natural rights as prior to established government. In a state of nature, persons are endowed with individual rights, and then government is instituted as a means to secure these rights through the consent of the governed. Locke offered his own answers to the theoretical puzzles about law. He claimed that law comes from God and substantively requires that no person—especially no government—may violate other persons' rights. Jefferson expressed these ideas about rights and a Creator directly in the Declaration of Independence.

Long before the American Revolution, political theorists recognized that a rule of law requires that people be treated equally under the law. The same standards must apply to each person when the relevant conditions are the same. The law should be public and predictable through mechanisms such as judicial proceedings open to the public. These conditions create pressures for the consistent administration of the law.

Throughout history governments often created elaborate constitutions, although this idea had a broad meaning. The "constitution" of a government identified the vast range of law operating in that region. These laws offered sets of rules and principles applied to all persons subject to government authority. Despite a long history of entrenched customary laws, judicial decision making, and elaborate procedures for enacting and changing laws, there was little history of effective and binding written constitutions constraining lawmakers and the judiciary. The institutional device of a written constitution became perhaps the most important historical impact of American constitutionalism. So profound was the American experiment that most nations in contemporary times, following the American tradition, have devised some type of written constitution—though often weak and ineffectual—as part of their governmental structure.

The emergence of the American Constitution marked a break from the English system, which recognized a constitution in the broad sense, but viewed Parliament as having full sovereignty over law with no separate written constitution that constrained its decisions. The colonists became convinced of the need to express a commitment to a specific written document prior to the exercise of government power through a fixed constitution as a check on this power.

The framers of the Constitution convened in 1787 to work out the details, building from a tradition of written colonial charters, a conception of natural rights, and a chastened experience with the Articles of Confederation. The Articles proved too weak to bind the newly formed states into one united nation; the states also faced a tremendous practical problem of paying the debts that had accrued from the Revolution. Not surprisingly, then, the convention focused most intensely on the relative balance of power between the states and the proposed federal government. This balance between federal and state power defined much of the intellectual debate between the Federalists, who supported a strong national constitution, and the anti-Federalists, who supported the primacy of state power. These arguments have always been an important part of the American political tradition.

James Madison was a Federalist who supported a strong constitution. He was also committed to the idea that government must uphold preexisting natural rights. For Madison, the best means of protecting people from the potential of an oppressive government was a representative government and a separation and balance of powers among competing branches of government. He and other delegates sought a constitution whose purpose was to specify this structure of government. Working through intense debate and dispute, they tried to reach compromises at every step of the Constitutional Convention, and the Constitution was ratified in 1788.

In 1789 Congress proposed a series of amendments that became known as the Bill of Rights. Madison and other Federalists had initially opposed a bill of rights, arguing that such a provision was, at best, useless—a "parchment barrier" that could never stop a majority determined to crush the rights of the minority. Madison also feared that no bill of rights could completely identify and secure all liberties, and thus any liberties not explicitly protected would be forever lost. Nevertheless, to placate disgruntled anti-Federalists, Madison proposed a limited number of amendments to protect basic liberties. Many states, in fact, ratified the Constitution on condition that a bill of rights would be adopted. Madison was deeply disappointed, however, when the Senate rejected his proposed amendment that would have required the states, as well as the national government, to protect freedom of expression and religious liberty.

The adoption, interpretation, and implementation of the Constitution and the Bill of Rights have become fundamental for understanding the character of American government. The Constitution is designed to empower and provide an external constraint on what any government may do. Any written document, however, especially a written Constitution, needs interpreters. Who should they be and how should they go about interpreting? If the legislative branch interprets the document, then in practice the document would no longer act as an independent constraint on ordinary law. Suppose that power is assigned to the judicial branch: how should the Supreme Court interpret the Constitution? On the one hand, the Constitution itself may be understood as the external constraint on ordinary law, and the interpretive task may be to divine the intent of the framers or analyze the meaning of the words in the text. Alternatively, higher ideals such as natural rights and justice may be understood as the ultimate constraints on ordinary law, where the purpose of the Constitution is to capture those deeper ideas in practical form. The Supreme Court might see its task either as drawing solely on the historical or literal meaning of constitutional limits or as incorporating other values that justices believe the Constitution is trying to express. Some interpretation is inevitable, for the words of the Constitution are often vague. How best to do this is a continuing puzzle in contemporary philosophy of law.

Despite its puzzles, the animating force behind constitutional debate is a recognition that the Constitution must apply in a way that serves as an effective constraint on potentially unlimited and capricious government power. There are perhaps many structures of government that can be suited to the task, but the Americans offered a written constitution as a distinctive solution to that problem. They devised a separation of powers, clarified and elaborated through Supreme Court rulings, such as Marbury v. Madison (1803) and McCulloch v. Maryland (1819). They devised strict rules for formally revising the Constitution, and they embraced the controversial belief that a constitutionally constrained democracy could prosper in a large nation of many inhabitants with distinct and sometimes antagonistic cultural habits. In these ways and others, they addressed the enduring puzzle of constraining a government that at some level is vested with the power to define its own constraints.

classical liberalism

In its barest essence, the idea of constitutionalism, with a written constitution, does not imply a complete vision of social life and humanity. But the American Constitution did in fact give rise to and color the distinctive qualities of American life. Underneath the creation of a written constitution was a particular understanding of the strengths and frailties of human motives and ambitions.

The eloquence of the founders offers a testament to both a large range of practical insights and philosophical underpinnings for supporting American constitutional government. This testament partially emerges from The Federalist, writings that first appeared in New York newspapers at the time of the Constitutional Convention. The Federalist papers create a magnificent record of the arguments surrounding the creation and ratification of the Constitution. The Federalist papers were written to garner support for the Constitution, and thus the three authors—the ardent Federalists Alexander Hamilton, James Madison, and John Jay—carefully avoided discussing provisions of the Constitution, such as the slave clauses, that they could not defend. Wide-ranging arguments were also carried out in pamphlets and newspapers throughout the colonies by common citizens, polemicists, political philosophers, and many active politicians of the day.

These arguments came not only from an American Revolution that rejected British rule, but also from founding figures who had studied and reflected on the long history of governmental abuse of power through the ages. They worried not only about potential tyranny by a powerful few, but they also worried about a mob democracy that through majority vote could oppress the rights of a minority. A written constitution was not merely part of a democratic culture but an important constraint on the exercise of democratic rule.

For the Americans, constitutionalism became part of a broader conception of human society. The hope was to view limited government as the background to human flourishing, where the creative energies of citizens would be realized through a vibrant civil society of equal citizens. Civil society with dispersed power would create the foreground for living good lives, limited government the background. On the one hand this conception suggests a profoundly pessimistic view of human nature. People in position to exercise power over others are liable to abuse that power. Power is a corrupting force that will have its way over time. Many of the careful constraints and balances of power devised by the founders gave due regard to this realistic if not bleak assessment of humanity.

At the same time the idea of a written constitution expresses an exalted and optimistic view of human nature, the idea that people can live together by mutually recognizing the power of reason and law over the power of force. It offers a vision of humanity that social organization need not be governed by caprice, war, and conquest. The peaceful creation and ratification of a written constitution and the political and civil institutions that grew as a result of it express the profound optimism that human beings can be persuaded to work out their differences by careful deliberation under conditions of liberty. The American Constitution was part of a classical liberal vision of society in which individuals, through their voluntary efforts, create self-supporting institutions that flourish and evolve as the needs of the people evolve. They do so in the context of a limited and just framework of law.

The American Constitution is part of a vision of the good society, acknowledging the authority and worth of the single individual but celebrating the community, acknowledging the greatness of the human moral impulse but recognizing the need for caution against base temptation. A written constitution is a practical document that requires enormous trust and idealism, both to be created and to be sustained over time. It is impossible to understand the vision of American constitutionalism without recognizing this tremendous idealism balanced with hard-nosed pragmatism, and the confidence that the two can work as one.

bibliography

Alexander, Larry, ed. Constitutionalism: Philosophical Foundations. Cambridge, U.K., and New York: Cambridge University Press, 1998, 2001.

The Federalist: The Essential Essays. Alexander Hamilton, James Madison, and John Jay. Edited by Jack N. Rakove. Boston: Bedford/St. Martin's, 2003.

Morris, Christopher W. An Essay on the Modern State. Cambridge, U.K., and New York: Cambridge University Press, 1998.

Sandel, Michael J. Democracy's Discontent: American in Search of a Public Philosophy. Cambridge, Mass.: Belknap Press of Harvard University Press, 1996.

Scalet, Steven. "Fitting the People They Are Meant to Serve: Reasonableness in the American Legal System." Law and Philosophy 22 (2003): 75–110.

Scalet, Steven, and David Schmidtz. "State, Civil Society, and Classical Liberalism." In Civil Society and Government. Edited by Nancy L. Rosenblum and Robert C. Post. Princeton, N.J.: Princeton University Press, 2002.

Steven Scalet

Encyclopedia of the New American Nation