Chapter 15
Constitutions and frames of government; fundamental law; charters and compacts.
256 passages · 118 principal · Covers the 49 volumes of primary texts
A constitution, in the sense these books give the word, is the fundamental law of a political body. It is the frame that sets out who governs, by what offices and procedures, and within what limits. It may be written in a single instrument or carried in usage and memory. It may be granted by a crown, sworn among confederates, or ordained by a people. The idea is a great one for the Harvard Classics because the collection contains more than reflections on government. It reprints the actual charters, compacts and frames under which English-speaking peoples lived. Beside them it places the most sustained argument in modern letters over whether such frames can be made at all, or must grow. The documents and the controversy illuminate each other. A reader can set Burke’s warnings about drafted constitutions beside the texts of the Instrument of Government and the Constitution of the United States, and test one against the other.
The oldest thought here is that a constitution is an agreement. In the Crito, Socrates grounds his obligation to the city in an implied contract between citizen and state1. That contract binds in deed and not only in word2. Rousseau gives the idea its modern shape. Early society, he says, rested on general conventions3. The political body is itself a contract whose fundamental laws bind all, and the magistrate may maintain the constitution but never alter it4. Burke, who agrees with Rousseau on little else, also calls the constitution a pact of society. It binds king and Parliament alike to keep public faith, and no branch may surrender its share5. He holds that James II broke the original contract between king and people6. Yet he enlarges the compact until it escapes any one generation’s control: each state’s contract is but a clause in the great primaeval compact of eternal society7. Adam Smith adds a prudential note. A constitution meant to be permanent should rest on necessary and unchanging circumstances, not accidental ones8.
Whether such a compact can be written out in advance is the question that most divides these authors. Descartes, though no political writer, judges the constitutions of states imperfect but thinks reforming them disastrous9. Burke turns that caution into polemic. He refuses to replace ancient landmarks with a geometrical and arithmetical constitution10. He mocks Sieyes’s pigeonholes stocked with ready-made constitutions of every pattern, all delivering pillage and murder11. Carlyle distrusts paper constitutions as the work of wholly self-conscious, mechanical men12. He holds that no cunning balance of self-interests can govern men, and that the French Revolution burnt such schemes like paper13. Emerson finds the English wanting a working constitution tested by trial rather than theory14. Lowell calls an unwritten constitution fortunate, since men tinker with their own handiwork but let time mend what time made15. Against all of this stand the imagined frames. The frogs in Aesop ask for a king and a proper constitution16. Gonzalo dreams of a commonwealth without magistrate, property or sovereignty17. The play treats the dream as a fable, not a plan.
Where does a constitution get its authority? The American documents give three answers. The first is the royal grant. Winthrop defends Massachusetts by appeal to the King’s Letters Patent, which made the colonists a body politic18. The Patent constituted the Governor, Deputy, Assistants and freemen19 and allowed the colony to set its own forms of magistracy20. Its clauses are cited for the freemen’s powers in the General Court21. Penn likewise obtained a charter and drew up a constitution on religious toleration22. Franklin shows how such grants became weapons. When Lord Granville claimed that the king’s instructions were colonial law, Franklin answered that the charters gave lawmaking to the Assemblies23. The Pennsylvania Assembly asserted its rights against proprietary instructions24.
The second answer is covenant among the settlers themselves. In the Mayflower Compact the signers combine into a civil body politic to enact just and equal laws25. In the Fundamental Orders three towns join in a commonwealth, a document the note calls the first written constitution limiting government26. The Body of Liberties ratifies fundamental rights for the colony and its posterity27, after deliberate review, with the General Court as sole interpreter28. Schiller’s William Tell supplies an older parallel in the Bond of the Three Cantons. It is a founding compact29, renewed when liberties were threatened30. In the play it is sworn as an oath of brotherhood31, with laws said to be graven in the heart32.
The third answer is the people in convention. Sir Henry Vane proposes that restraint be laid on the supreme power as a fundamental constitution before that power is erected, with the people’s free consent33. Sovereignty, he says, resides originally in the whole body34, and a convention should frame the conditions of civil incorporation, each member subscribing35. The editor notes that America later followed this course36. Marshall states the American doctrine plainly. The Constitution derives its whole authority from conventions of the people, not from the state governments37. Washington marvels that a government was established by the tranquil deliberation and voluntary consent of distinct communities38. Burke concedes, from the other side, that in the French scheme all powers are creatures of a founding convention39. He offers this as a description, not as praise.
Older than any of these is the appeal to an ancient constitution of inherited liberties. Goethe’s Egmont gives it dramatic voice. Vansen recounts the hereditary Netherlandish laws and the states that checked princes who overstepped them40. He reads Brabant’s charter, which binds the duke to the people as they are bound to him41, and forbids him to alter the constitution without consent of nobles and states42. Raleigh condemns Philip for breaking his oath to preserve the States’ ancient rights43. Schiller’s Swiss read old imperial charters as the basis of their freedom44. Voltaire deflates the most famous of such charters: Magna Charta chiefly made kings dependent on the Lords45, and the Commons, absent from it, grew only afterward46. Winthrop nonetheless proposes a law like Magna Charta to limit fines47.
Whether old rights should stand against change is debated across the ages. Cicero laments that his ancestors’ constitution has swerved, as ballot laws estrange people from the Senate48. Plutarch notes that Sylla’s usurpation came by usage to be accepted49, a reminder that innovation can itself become tradition. Dryden holds that altering fundamental laws kills the state as needless physic kills a healthy man50. Following Montaigne, he advises an honest man to accept the constitution of his ancestors51. Goethe’s Alva states the counter-thesis with force: all things change, and old rights become loopholes for the powerful52.
The British constitution is the hinge of the modern debate. Its supposed merit is balance. Machiavelli had already praised the French Parliament as arbitrator between nobles and commons53. Dryden calls English government well-poised between arbitrary power and anarchy54. Voltaire admires the division of legislative power between Lords and Commons under the king, an intermediate power Rome lacked55. Burke praises the “triple cord” of King, Lords and Commons as a mutual guarantee of rights and property56. He describes English liberties as an entailed inheritance that unites diverse parts57. His reading of 1688 is the boldest stroke of his argument. He denies that the Declaration of Right contains any right to choose, cashier or frame governors58. The Declaration, as he reads it, binds liberty and hereditary succession together in one act59,60. The nation, he says, regenerated the deficient part of the old constitution through its sound parts61, securing liberty by parliaments and impeachment rather than by revolution62. Liberties are traced back to Magna Charta63,64.
Not every author shares this reverence. Mill thinks the constitution’s aristocratic predominance an evil worth any struggle65. Lowell claims it is democratic beneath its disguises66. Carlyle observes that the praised Constitution has been followed by Reform Bills and endless treatises67. Sydney Smith mocks the habit of invoking it as sacred to refuse any boon68. Bagehot credits the Commonwealth with opening fundamental questions to popular debate69. The colonists turned the constitution against Parliament itself. The Declaration of Rights calls parliamentary taxation inconsistent with its spirit70, and the Declaration of Independence complains of charters taken away71. Adam Smith contrasts its protection of North America with company oppression in India72.
Burke’s anatomy of the French Assembly’s constitution sharpens every issue. He judges its three bases to be contradictory principles caged like wild beasts73,74. In his view it severs France into unconnected republics75,76 and is the reverse of Britain’s in principle77. He faults it for disqualifying experienced legislators78 and for forgetting to constitute a senate79. It abolished the old parliaments that preserved the constitution’s memory80 and left the army in strange relation to the republic81. The whole, he concludes, is puerile and pedantic, each defective part exposing the others82. His remedy is repair rather than remaking. The old French constitution, though not free83, could have been improved into a British one84,85. The innovators’ error was to treat government like dress and the compact as dissoluble at will86. In England, he says, one alters only to preserve87.
The frames in the collection show what drafting actually looks like. The Connecticut Orders fix offices, one-year terms and limits on re-election88,89,90. The Instrument of Government divides legislative authority between Protector and Parliament91. It fixes triennial Parliaments and their seats92 and lets bills pass without the Protector’s consent after twenty days93. It forbids members to alter government by one person and Parliament94. Franklin’s Albany plan proposes a president-general and grand council95. The Articles of Confederation declare a perpetual union, alterable only with every legislature’s confirmation96, and give each state one vote97. The Federalist presents the new Constitution as a remedy for a defective government formed amid war98,99. Its text ordains a more perfect union100, enumerates Congress’s powers101, establishes the executive and courts102,103, and declares itself the supreme law104. Lowell supplies a Burkean reading of the American achievement. The framers, he argues, adapted English precedents and distrusted theory, checking the people’s whim but not their will105. They gave conservative form to a democratic people106.
A written constitution raises the problem of interpretation. Marshall argues that a constitution marks only great outlines and must be expounded broadly107. A constitution meant to endure for ages cannot prescribe means like a legal code108. He reads the necessary and proper clause as a grant, not a restriction109. Any appropriate means plainly adapted to a legitimate end and not prohibited is constitutional110. Here a written charter takes on the adaptive character Burke reserved for unwritten ones. Lincoln qualifies judicial supremacy. Court decisions bind the parties, but they cannot fix national policy irrevocably without the people surrendering self-rule111. He also grants that no constitution can foresee every question112.
Amendment and perpetuity close the circle. Washington counsels caution in using the fifth article113. He calls the Constitution binding until changed by the whole people114. Experience, he says, not hypothesis, is the test of a constitution, and change should come by amendment rather than usurpation115,116. Lincoln affirms the right to amend and favors the convention mode117. He holds the Union to be perpetual, implied in fundamental law118, and secession ordinances void119. Lowell finds secession absurd, since the compact has no arbiter120. Johnson declares that no State may leave the Union of its own will121.
What remains open is the tension with which the collection began. One question is whether a constitution is a compact its makers may revise or an inheritance that binds them. Another is whether written words can hold a living people, or must be stretched by construction. Emerson reports critics who fear that license in construing the Constitution leaves no anchor122. Mill notes that fidelity to the Constitution restrained the North on slavery until rebellion shook that restraint off123. Burke and Washington agree that experience must judge. They differ on whether a people in convention may begin the experiment anew.
Introductory essay written by Claude Opus 5.5 from the outline and the notes on every passage below; quotations are checked against this edition.
See also: Liberty 7f
See also: National Character 4
See also: Revolution 7b · Monarchy 2a · Liberty 7b · National Character 4
See also: Democracy 4e
See also: Government 7b
See also: Taxation 2b · Citizen 2c · Law 9e · Government 7c
See also: Government 7c · Law 9e · Taxation 2b · Reasoning 5c
See also: Revolution 6c · Slavery 8d · Liberty 7e
See also: Government, Democracy, Liberty, Law, Revolution, Taxation