The first problem in political life is to secure order. The second problem is to confer legitimacy on the authority required to constitute order. What is the justification of political authority and the duty of obligation that it entails? Since antiquity God, nature, tradition, and superior force have been invoked as sources of political legitimacy. Out of the diffusion of authority in feudal society, constitutionalism emerged in early modern European history as a form of governance designed to reconcile the apparently conflicting yet intrinsically complementary relationship between liberty and authority in the Western political tradition.
The construction of territorial state sovereignty was intended to establish stable political order for the protection of citizens' individual rights of liberty, private property, and personal security against internal violence and external predation. Although rhetorically the concept of sovereignty resonates of power and majesty, in terms of historical sociology it emerged in response to social differentiation and economic exchange. The rationale of sovereignty was not more effective domination of persons, but recognition of their legal status as bearers of liberty and property rights capable of pursuing their interests apart from government tutelage and supervision.
Constitutionalism in America was a variation of the distinctive form of common law liberty and rights-minded nation-state sovereignty that issued from the English Civil War and Glorious Revolution of 1688. After a century and a half of substantially autonomous development under England's lightly regulated mercantile system, the American colonists rebelled against British rule. Declaring independence as a separate people and nation, they framed state constitutions of republican government for the protection of individual liberty and community security.
The constitutional rationale of American nationality appeared in the Circular Letter of the Massachusetts General Court, 1768, which stated that “in all free States the Constitution is fixed; & as the supreme Legislative derives its Power & Authority from the Constitution, it cannot overleap the bounds of it, without destroying its own foundation.” No less important was the assertion that “it is an essential unalterable Right, in nature … that what a man has honestly acquired is absolutely his own, which he may freely give, but cannot be taken from him without his consent” ( Beloff 1989 ).
In throwing off British authority the American people assumed responsibility, as it were, for resolving the conundrum of sovereignty in political modernity. How could unitary and indivisible supreme coercive authority, the received definition of sovereignty according to treatises on public law, be made compatible with individual natural rights? The answer lay in delegation, division, separation, and balance of government power institutionalized in representative republican constitutions.
The revolutionary convictions of the American people tended toward the making of a nation-state. In their geographic, social, and economic diversity, however, Americans had incentives to form a multiplicity of independent nation-states with the potential for internecine conflict. The solution to the problem of peacekeeping among rival states lay in transforming the practice of interstate treaty alliance or confederation into the principle of federal republican constitutional union.
To resist British authority, Americans in 1774 organized a Continental Congress of delegates appointed by each colony to act as an executive council representing the colonies as a whole. Congress prepared “Articles of Confederation and perpetual Union” between the states of America, which was ratified by the states in 1781. The thorny question of the locus of sovereignty was now transferred to the people of America. It was resolved in ambiguous language stating that “Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”
The Articles of Confederation failed to meet the country's external security and internal economic productivity needs. To strengthen the Union, a coterie of national-minded statesmen, with the approval of Congress, organized a Federal Convention in 1787. Deliberating in closed session and voting on the basis of state equality, delegates drafted a plan of government providing for a two-chamber legislature elected by the people and the state legislatures; an executive magistrate chosen by state-appointed electors; and a Supreme Court and inferior courts appointed by the president with the consent of the upper legislative chamber. The Constitution limited the powers of the states by creating a national government with direct authority to tax and legislate for citizens in the states, and by withdrawing state legislative authority with respect to commerce between the states, currency and finance, and contractual obligation.
By constitutional direction and with the approval of Congress, popularly elected state ratifying conventions debated the merits of the plan of government. Anti-Federalist critics objected that the Constitution would subvert the state governments and create a consolidated national government. Federalist supporters claimed that the Constitution, in the words of James Madison, provided “a Republican remedy for the diseases most incident to Republican Government,” that is, excessive and irresponsible exercise of state legislative authority in the name of the people. Madison believed the genius of American constitutionalism resided and was articulated in “the extended republic of the United States,” premised on the idea that “the larger the society, provided it lie within a practicable sphere, the more duly capable it will be of self-government.” The republican cause could thus be carried to a very great extent “by a judicious modification and mixture of the federal principle” ( Rossiter 1961, 325 ).
In the nineteenth century, territorial expansion, demand for internal improvements, and capitalist market development provoked constitutional controversy. The central issue concerned the disposition of sovereignty between the states and the federal government. From the Revolution to the 1830s Americans were sufficiently like-minded to recognize compromise as the price of Union. The moral and constitutional propriety of slavery in republican society, however, an issue over which Americans had agreed to disagree since the making of the Constitution, proved irreconcilable.
Conflicting southern and northern claims to national honor and constitutional fidelity produced a crisis of constitutional legitimacy. Following the election of President Abraham Lincoln in 1860, seven states adopted ordinances of secession. Four more states seceded in reaction to the president's proclamation calling state militia into national service to suppress rebellion against the United States. In 1863 Lincoln issued the Emancipation Proclamation, declaring that liberation of slaves in rebellious states was “an act of justice, warranted by the Constitution, upon military necessity.” After the Civil War, Congress adopted legislation organizing republican governments in the former rebellious states, and approved constitutional amendments to prohibit slavery and confer civil and political rights on all persons without regard to race, color, or previous condition of servitude.
The extent to which the Civil War and Reconstruction revised or revolutionized constitutional governance in the United States was bitterly disputed well into the twentieth century. Did the Reconstruction amendments complete the Constitution by fulfilling the promise of liberty and equality in the Declaration of Independence? Did mutually destructive exercise of the war power obliterate the commitment to limited government implicit in the federal system of divided sovereignty? Did Confederate defeat signify repudiation of state sovereignty and consolidation of power in the national government? And if secession was justified as an exercise of the right to revolution, did military conquest of the South expunge from American political theory the very ground on which the claim to national independence rested?
The end of the war was not a propitious moment for dispassionate reflection on its consequences for American governance. Perhaps the most judicious assessment of the constitutional significance of the war was implicit in Lincoln's judgment in April 1861 that secession was unjustified rebellion against the Constitution, and armed rebellion was war. The Union was saved, the Constitution was preserved, and the threat to national security from a new foreign government in North America was averted.
From the perspective of the twenty-first century it can be argued that the existence of slavery in the United States delegitimized American constitutionalism from the outset. In this view the destruction of slavery by military force was a revolution that redirected American governance from the low road of complicity with racial and minority group oppression to the high road of egalitarian, welfare-statist constitutionalism. This interpretation, however, puts the ideological cart before the constitutional horse.
Black enfranchisement after the Civil War conformed to classical liberal natural rights principles of private property, contract, and economic liberty. The conferral of statutory and constitutional rights demarcated spheres of liberty intended to limit the exercise of state power. Blacks were legally integrated into society on an individual basis rather than as members of a protected group or class. The persistence of white racial prejudice was an insuperable barrier to biracial social integration in the foreseeable future. Nevertheless significant Supreme Court decisions confirmed individual equal rights constitutionalism consistent with the limited government principles of the Founding.
The regulatory welfare state was confirmed in the era of World War II and the Cold War. In defending the United States against National Socialism in Germany in the 1940s and against Communism in the Soviet Union from the 1950s through the 1980s, Americans were moved to eradicate the incubus of racism that persisted after the abolition of slavery. Enactment of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, prohibiting discrimination on account of race and establishing equal protection of the laws, marked the high point of the civil rights movement and the “second Reconstruction.”
At the moment of its historic ascendancy, however, liberal constitutionalism was challenged by massive eruptions of urban violence, property destruction, and acts of civil disobedience. In response to popular demands for law and order, the political landscape changed. Liberal statists and participatory democrats joined in a coalition to defend and expand liberal welfare statism against a revitalized modern conservative movement calling for limited government, free-market capitalism, and individual natural-rights constitutionalism at home and strong national defense abroad. Throughout the Cold War era, Democratic and Republican administrations, resigned to a prudential if grudging kind of bipartisanship, maintained the basic structure of the New Deal regulatory welfare state.
The end of the Cold War in 1990 inspired dreams of world peace in a cosmopolitan, multicultural community. The basis on which such a society might be created, however, is not obvious. Globalization dissolves the principle of territorial national sovereignty on which modern constitutional government and international law are premised. The result is a borderless void, defiant of authority and order, in which the political interests of business corporations, financiers, and nongovernmental organizations clash all the more vigorously. In these circumstances the United Nations is not to be mistaken for a legitimate world government. The futurist imagination of progressive legal theorists therefore envisions a kind of surrogate authority in the form of populist neo-constitutionalism based on the values of equality, equity, freedom, and dignity. The trouble with this theory is that, in the absence of fixed constitutional forms and procedures historically developed in nation states, popular sovereignty tends to devolve into totalitarian oppression.
Constitutionalism is too political a subject to be confined in a zone of legal positivist moral neutrality. It is meaningless to say that because every society has ways of organizing and directing its political life it is a constitutional state. The normative challenge of constitutionalism is to determine the ends, principles, and institutional structures that define the content of legitimate political authority and obligation under which human beings may flourish.
In the modern era two paths toward state formation have been pursued. The first one is delineated in the sovereign nation-state of the eighteenth and nineteenth centuries, in which limited government power is legitimized by citizens' natural-law individual rights claims to liberty, property, contract, and political consent through representative republican institutions. The second path is twentieth-century sovereign corporate statism, in which coordination of social classes, industrial groups, and democratic masses results in a bureaucratically administered totality. In this form of governance, rights are not “spheres of liberty against the state” but entitlement to rights “objectively and politically satisfied by the state, normally through processes of material distribution and economic pacification” ( Thornhill 2008, 190 ).
After the collapse of Communism, the first path of modern constitutionalism in the form of the bourgeois liberal representative republic could plausibly present itself as the “resolved mystery” of the liberty vs. authority dyad and the coercive-mass-democracy vs. libertarianindividual-rights conundrum. The fundamental issue in modern governance concerns the real meaning of liberty in the constitution of political right. Does liberty consist in rights intrinsic to the nature of human beings as responsible individual moral agents free from restraints unjustifiably imposed by others? Or is liberty realized through class entitlement and egalitarian wealth transfer administered by centralized bureaucracy?
SEE ALSO Articles of Confederation ; Civil War Amendments ; Conservatism ; Constitution ; Constitutional Authority ; Constitutional Government ; Democracy ; Extended Republic, Theory of ; Federalism, Theory of ; Governance ; Government ; Liberalism ; Liberty ; Limited Government ; Madison, James ; Progressive Movements, 1890 to 1920 ; Republicanism ; Rights, Negative ; Rights, Positive ; Rule of Law ; Sovereignty ; State Constitutions .
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Hendrickson, David C. Peace Pact: The Lost World of the American Founding. Lawrence: University Press of Kansas, 2003.
Manent, Pierre. A World Beyond Politics? A Defense of the Nation State. Translated by Marc LePain. Princeton: Princeton University Press, 2006.
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Rossiter, Clinton, ed. The Federalist Papers, by Alexander Hamilton, James Madison, and John Jay. New York: New American Library, 1961.
Thornhill, Chris. “Towards a Historical Sociology of Constitutional Legitimacy.” Theory and Society 37, no. 2 (2008): 161–97.
Herman J. Belz
University of Maryland