A photograph of the original United States Constitution of 1787.
© ONUR ERSIN/SHUTTERSTOCK.COM
A constitution is the fundamental law and framework of government in a political community, such as a state or a federation of states. It legitimately constitutes the purposes, principles, powers, prohibitions, and institutions of government grounded in the rule of law—and not in the arbitrary will of a ruler. The constitution also prescribes relationships of the people with government in regard to rights, privileges, regulations, and mutual obligations. If aptly designed and administered, constitutional government enables the people under its authority to have relative security, peace, liberty, and justice.
From antiquity to early modernity, constitutions were informal and “unwritten” ; that is, the elements of constitutional government were not officially presented in a single document but rather embodied in a series of documents, customs, and traditions, some of which were written and others not. For example, the unwritten constitution of England (after 1707 the United Kingdom of Great Britain) has been a corpus of common law, charters, executive proclamations, statutes, customs, and traditions, which have evolved over many centuries to constitute limited government and the rule of law.
In the world today, however, the written constitution in a single document prevails. It began in America when England's first wave of settlers planted and cultivated seeds of governance based on constitutional documents. The many seedbeds developed slowly, steadily, and pervasively during the long colonial era, from 1607 to 1775. Fruition came with the founding of the United States of America, when citizens of the new nation wrote their first state and federal constitutions.
The Mayflower Compact presaged the widespread coupling of covenants and compacts to found or expand civil societies and governments in Massachusetts and other English colonies of North America. The Mayflower Compact was not a constitution, but it paved the way for a constitution. In 1636, for example, representatives of the people enacted the Pilgrim Code of Law in order to form a federation of Plymouth and nearby towns. They based the legitimacy of this new political community on the Mayflower Compact and the Charter of Massachusetts Bay issued by England's King Charles I in 1629.
Charters were legal documents of foundation that the government of England issued to establish political authority in a royal colony or proprietary colony (the latter was managed for profit by a commercial enterprise). For example, the Massachusetts Bay Charter, following the precedent of the 1606 Charter of Virginia, set the terms of colonial governance, including a pledge that the people would have the same legal and political rights as the king's subjects residing in England. The combination of a charter from England with a covenant-compact of a colonial people, the Pilgrim Code of Law, was an early example of how most English colonies in America established their fundamental laws and frameworks of government within the political authority of the mother country. A few scholars have thus suggested that the Pilgrim Code of Law is a candidate for consideration as America's first constitution ( Elazar 1997, 24; Lutz 1998, 61 ).
Like the Pilgrim Code of Law, the 1639 Fundamental Orders of Connecticut was a compact among the people. It established civil government for a small group of towns in a region of colonial Connecticut. However, this founding document was more complex and detailed than its Plymouth counterpart. Some historians have therefore called it the first written constitution in America and the world. “To modern eyes, it looks more like a constitution than does the Pilgrim Code of Law,” writes Donald S. Lutz ( 1988, 42 ).
Several years after enactment of the Fundamental Orders, England's King Charles II issued the Connecticut Charter of 1662. The king's colonial charter, intertwined with the colonial people's compact of 1639, was a constitution for all the communities of Connecticut. In 1776, following America's Declaration of Independence, all reference to British authority was erased from this charter, and it thus became the sovereign state of Connecticut's first constitution, which endured until the people replaced it in 1818.
The Rhode Island Charter of 1663 was interwoven with the colony's 1647 Acts and Orders and became another example of a durable constitution. It conjoined English imperial authority, signified by a colonial charter, with a covenant-compact made by the colonial people. After deletion of references to British authority in 1776, the Rhode Island Charter of 1663 became the sovereign state of Rhode Island's first constitution, which lasted until 1843.
The blending of two kinds of founding documents—charters written in England and compacts written by people in the colonies—fostered “a constitutional perspective uniquely American.” People in the colonies became “used to having a written document defining the context of their politics” ( Lutz 1998, xxi ). The cumulative experience of creating compacts and amending charters during the long colonial era was an important antecedent of constitution making during America's founding period.
There were at least four other factors that contributed, more or less, to the conception and inception of state and federal constitutions in the new American nation. These factors were: (1) the republican political models of classical antiquity and the Italian Renaissance; (2) prominent political philosophers of the seventeenthand eighteenth-century English, Scottish, and French Enlightenments, especially John Locke, David Hume, and Montesquieu; (3) English legal and constitutional scholars of the sixteenth through eighteenth centuries, such as Edward Coke and William Blackstone; and (4) the English common law and constitutional tradition, which included such landmark documents as the 1215 Magna Carta, 1628 Petition of Right, 1679 Habeas Corpus Act, and the 1689 Bill of Rights.
Before the mid-1980s, most scholars of American constitutionalism variously emphasized items in the preceding list of factors. Since then a new perspective on the sources of American constitutionalism has emerged that primarily emphasizes colonial-era achievements ( Elazar 1997 and Lutz 1987 ). Lutz has marshaled compelling evidence to demonstrate the importance of colonial American antecedents to the extraordinary burst of constitution making during America's founding period, which culminated in the framing of the United States Constitution in 1787 and its ratification in 1788 ( Lutz 1980, 1984, 1987, 1988, and 1998 ).
The character of America's Constitution comes from the nation's founding compact, “The unanimous Declaration of the thirteen united States of America.” The Declaration declares, for example, that the primal purpose of government is protection of natural rights to “Life, Liberty, and the pursuit of Happiness.” It also says that “the consent of the governed” is the government's legitimate source of authority. Furthermore, the Declaration implies that the nascent American nation necessarily is a federation of states and not a unitary nation-state. The Declaration's ideals about ends and limits of government have made it “the conscience of the Constitution” and a shaper and keeper of America's constitutional character ( Sandefur 2014, 2 ).
There is no mention of the Declaration of Independence in the text of the US Constitution. Nonetheless, principles of government in this Constitution reflect the Declaration's ideals and intent. Framers of America's federal and state constitutions, for example, believed that government is instituted to protect the safety, security, and liberty of the people. They assumed that rights to liberty are at risk if government is excessively empowered and insufficiently limited, and thereby open to movement toward tyranny. The Framers also thought liberty to be at risk if the government is insufficiently empowered and excessively limited, and therefore susceptible to licentiousness and descent toward anarchy. Thus the Framers simultaneously empowered and restrained government to prevent the polar extremes of tyranny and anarchy. Their desired outcome was ordered liberty, the midpoint on the political spectrum, where government is neither too strong nor too weak, and civil liberty prevails within the rule of law.
In Federalist No. 51, James Madison masterfully defined and explained the perennial constitutional challenge of sustaining ordered liberty. He introduced this problem with precepts about human nature and government:
But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions ( Rossiter and Kesler 2003, 319 ).
Madison offered a two-fold solution to the problem of sustaining stability, order, and liberty in civil society and government. The people first must constitutionally endow the government with sufficient power to protect them from the danger and destruction of rampant disorder. They must also constitutionally constrain the government to prevent it from acting tyrannically and harming them. Power is necessary to protect liberty; and liberty is essential to protect against power.
Madison recognized the people themselves as the primary controllers of their government to preserve their liberty under law. He also noted “the need for auxiliary precautions” to constitutionally reinforce the people in checking excesses of government. These auxiliary precautions are principles at the core of America's Constitution:
In 1787–1788 representatives of the states judged their confederation inadequate and irreparable. So they replaced it with a new kind offederalism, a compact of the people, which conjoined the citizens in each of the constituent states with the whole people of the United States. The federal Constitution's Preamble proclaims: “We the People of the United States, in Order to form a more perfect Union … and secure the Blessings of Liberty … do ordain and establish this Constitution for the United States of America.”
The principle of federalism in “this Constitution” requires division and sharing of powers between two sets of an extended constitutional republic. There is a republic of nationwide scope, the United States of America. There are also the constituent constitutional republics, the states, thirteen at the beginning and fifty now. In The Federalist (see the 10th, 14th, and 51st papers), Madison called this system of federalism a compound republic.
The United States government, within its constitutionally specified sphere of powers, has direct authority over all the people of America, and is accountable to them. It is a large or extended national republic, encompassing all the states and territories within the country. In concert with the United States government, each state, a smaller unitary republic, governs the people within its borders according to the powers and limits of its own constitution. Article IV, Section 4 of the federal Constitution says, “The United States shall guarantee to every State in this Union a Republican Form of Government.” Thus every institution of government in this federal system derives its powers directly or indirectly from the people within its orbit, and is accountable to them. According to Madison, in Federalist No. 39, this is the very essence of the republican form of representative government in America ( Rossiter and Kesler 2003, 236–39 ).
The Tenth Amendment of the United States Constitution prescribes the division of powers in this federal system: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” However, Article VI, clause 2 of the Constitution specifies the supremacy of powers delegated to the government of the United States relative to corresponding powers of the state governments. So federal laws and treaties, enacted in accord with the Constitution, “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.”
Federalism permeates the United States Constitution, which inseparably is connected with constitutions of the states. The Constitution includes numerous references to relationships between the federal and state governments, which pertain to delegations and prohibitions of powers, and to the statuses, privileges, and rights of citizens and other persons within the compound republic of the United States. Lutz writes, “It seems to have been the intention of the Founders that we read the state constitutions along with the national Constitution as a complete text” ( 1987, 681 ).
America's federalism was unique in the world of the late eighteenth century. As Forrest McDonald, one of America's foremost scholars of the Constitution, observes, “the constitutional reallocation of powers created a new form of government, unprecedented under the sun. Every previous national authority either had been centralized or else had been a confederation of sovereign constituent states. The new American system was neither one nor the other: it was a mixture of both” ( 1985, 286 ).
In Federalist No. 51 Madison explained how sepa-ration of powers with checks and balances—in conjunction with federalism in a compound republic—could provide “double security” for liberty of the people against excessive concentrations of power in government. Madison wrote:
In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by the division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself ( Rossiter and Kesler 2003, 320 ).
In America's federal system, the people have sovereignty and representation in two sets of government. They simultaneously are citizens of the United States and of the state wherein they reside (see the federal Constitution: Article IV, Section 2, and Amendment XIV, Section 1). Thus both the initiation and continuation of limited government, according to the fundamental law of the Constitution, is based on consent of the people in the two sets of America's compound republic.
In Federalist No. 53 Madison stressed the significance of a written Constitution, anchored in popular sovereignty, to the preservation of liberty:
The important distinction so well understood in America between a Constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government, seems to have been little understood and less observed in any other country. Where no Constitution paramount to the government, either existed or could be obtained, no constitutional security, similar to that established in the United States, was to be attempted ( Rossiter and Kesler 2003, 328–29 ).
Only in America, at the time of its founding, was there a Constitution written and ratified by representatives of the sovereign people in conventions convened solely for these two purposes. This two-step process of constitution making produced a founding document from which the federal government was established. The Constitution was intended to be a law above the ordinary laws enacted by the subordinate institutions of government.
This Constitution has remained the supreme law of the United States; so all laws and other acts of the federal and state governments must conform to it. If not, they are lawless actions, considered unconstitutional, and thereby null and void. This Constitution is also unalter-able by either executive orders or statutes enacted by the majority in Congress. It can be amended only by consent of the sovereign people, expressed through representatives in federal and state governments, according to procedures in Article V of the Constitution. Thus America's Constitution is designed for liberty and against any kind of tyranny: not only the tyranny of one, an autocracy, or of the few, an oligarchy, but also tyranny of the majority, a corruption of democracy, which should not prevail in a democratic republic.
The United States Constitution has endured for more than two and a quarter centuries. It is by far the world's oldest written constitution of national government. Most constitutions have lasted less than twenty years, and very few more than fifty. Since 1791 France has had fifteen constitutions, whereas in America there has been only one ( Elkins and others 2009, 1–2 ).
America's Constitution has been both a functional instrument of governance and a unifying symbol of nationhood for a diverse people in a pluralistic civil society. National unity in America, unlike most other countries, is based primarily on a common civic identity among the people rather than shared ethnicity, race, religion, or other bonds of ancestral kinship. The source of this shared civic identity is strong commitment of the people to ideas in America's founding documents, which greatly has contributed to the durability of the Constitution.
Adaptability is another aspect of the Constitution's durability. This Constitution is interpretable and adaptable within its framework of government. Chief Justice John Marshall emphatically noted this aspect of the Constitution's character in the US Supreme Court's precedent-setting opinion in the case of McCulloch v. Maryland, 17 U.S. 316 ( 1819 ). Marshall wrote:
This provision is made in a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs. To have prescribed the means by which Government should, in all future time, execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur (17 U.S. at 415).
In regard to statutes and public policies of the federal or state governments, Chief Justice Marshall held: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional” (17 U.S. at 421). Marshall's opinion of the Court in this landmark case set terms of constitutional interpretation to guide decisions in subsequent cases.
America's interpretable and adaptable Constitution has been conducive to change needed for protection of individual rights and advancement of the common good. Consequently, some phrases or parts of the Constitution are not interpreted or perceived by the people today exactly as the founding generation understood them. Nonetheless, the purposes, principles, and institutions that signify the core and character of the Constitution have remained intact.
An overriding reason for the Constitution's longevity has been its continuous compatibility with the history and culture of the people. It was an organic outgrowth of colonial-era experiences in constitutional government. Going forward, from the founding period until the present, the character and content of the Constitution has tended to fit the political expectations, interests, and values of the majority of Americans. Even during extended periods of constitutional crisis, such as the years before, during, and after the Civil War, most citizens have supported the Constitution against opponents desiring to abolish or radically transform it.
Americans have realistically revered their Constitution and rejected utopianism. Neither the founding generation nor its successors have expected to achieve a perfect polity. Near the end of his life, James Madison expressed this prevailing American viewpoint: “No government of human device and human administration can be perfect; … that which is least imperfect is therefore the best government” ( Koch 1961, 115 ).
Successive generations of citizens have eschewed the impossible dream of constitutional perfection and embraced instead an unending project of prudential improvement. They have tried to reduce the inevitable gap between America's highest ideals, expressed in the nation's founding documents, and the ever-present shortcomings in civil society and constitutional government. Framers of America's Constitution called it an experiment in free government, and so it has remained. The future of this constitutional tradition, always in doubt, depends on the commitments and choices of the people.
SEE ALSO Blackstone, William ; British Constitution ; Checks and Balances ; Coke, Edward ; Compact and Covenant ; Constitutional Government ; Constitutionalism ; Declaration of Independence ; Federalism, Theory of ; Governance ; Government ; Hume, David ; Limited Government ; Locke, John ; Montesquieu, Charles-Louis de Secondat ; Popular Sovereignty ; Preamble, United States Constitution ; Representation: Idea of ; Republic ; Republicanism ; Rule of Law ; Separation of Powers .
Constitution of the United States. 1787. The Charters of Freedom, National Archives and Records Administration. http://www.archives.gov/exhibits/charters/constitution_transcript.html .
Elazar, Daniel J. “Covenant and the American Founding.” In Covenant and Constitutionalism: The Great Frontier and the Matrix of Federal Democracy, Vol. 3 of The Covenant Tradition in Politics. New Brunswick, NJ: Transaction, 1997. (Also available at the website of the Jerusalem Center for Public Affairs. http://www.jcpa.org/dje/books/ct-vol3-ch1.htm ).
Elkins, Zachary, Tom Ginsburg, and James Melton. The Endurance of National Constitutions. Cambridge, UK, and New York: Cambridge University Press, 2009.
Ketcham, Ralph. Framed for Posterity: The Enduring Philosophy of the Constitution. Lawrence: University Press of Kansas, 1993.
Koch, Adrienne. Power, Morals, and the Founding Fathers: Essays in the Interpretation of the American Enlightenment. Ithaca, NY: Cornell University Press, 1961.
Lutz, Donald S. “From Covenant to Constitution in American Political Thought.” Publius: The Journal of Federalism 10, no. 4 (1980): 101–33.
Lutz, Donald S. “The Relative Importance of European Writers on Late Eighteenth Century American Political Thought.” American Political Science Review 78 (1984): 189–97.
Lutz, Donald S. “The Changing View of the Founding and a New Perspective on American Political Theory.” Social Science Quarterly 68, no. 4 (1987): 669–86.
Lutz, Donald S. The Origins of American Constitutionalism. Baton Rouge: Louisiana State University Press, 1988.
Lutz, Donald S., ed. Colonial Origins of the American Constitution: A Documentary History. Indianapolis, IN: Liberty Fund, 1998.
Lutz, Donald S. Principles of Constitutional Design. Cambridge, UK, and New York: Cambridge University Press, 2006.
McCulloch v. Maryland. 1819. Legal Information Institute, Cornell University Law School. http://www.law.cornell.edu/supremecourt/text/17/316 .
McDonald, Forrest. Novus Ordo Seclorum: The Intellectual Origins of the Constitution. Lawrence: University Press of Kansas, 1985.
Rossiter, Clinton, and Charles R. Kesler, eds. The Federalist Papers: Hamilton, Madison, Jay. New York: Signet Classics, 2003.
Sandefur, Timothy. The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty. Washington, DC: Cato Institute, 2014.
Sandoz, Ellis. “The American Constitutional Order after Two Centuries.” Social Science Quarterly 68, no. 4 (1987): 724–44.
Vile, M. J. C. The Structure of American Federalism. London: Oxford University Press, 1969.
Vile, M. J. C. Constitutionalism and the Separation of Powers. 2nd ed. Indianapolis, IN: Liberty Fund, 1998.
John J. Patrick
Indiana University