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A Constitutional History of the United States
Chapter I - Introduction
by McLaughlin, Andrew C.

To find a beginning of American constitutional history is a difficult or impossible task. Certain important principles of constitutional government were in existence long before the United States was founded; some of these principles are commonly, though rather loosely, said to have had their origin in Magna Charta. This means only that, to know fully the forces and ideas which are embodied in our constitutional system, it is necessary to know the main course of English constitutional history. There are — to choose a simple example — in the Constitution of the United States terms and provisions which disclose their full meaning only when studied as a part of English constitutional history — habeas corpus, bill of attainder, common law, trial by jury, and other phrases. Moreover, the institutions and the elementary, though all-important, constitutional principles were not suddenly begotten in the America of the eighteenth century. Even in recent years the courts of this country have found it necessary to examine the laws and constitutional principles of England which were very old when the Federal Convention met in Philadelphia in 1787.

Furthermore, institutional forms as distinguished from principles were the product of long growth; to some extent their developments can be traced in English history. They are, however, more distinctly seen in the American colonies. When these colonies became states, their institutions were patterned in very large measure on the actual institutions of the colonies as they had developed in preceding decades. The framers of the federal Constitution were in their turn guided by the state constitutions; they did not enter upon their great task by ignoring the past; they did not seek in any large degree to invent what was new and untried. A complete constitutional history of the United States would include, therefore, at least a full outline of colonial development. Indeed, the states as they stand to-day are a part of our system of government, and an exhaustive treatment of our history would necessarily deal with the origin and development of state institutional forms; it would, for instance, deal with the bicameral system and the position and authority of the governor. But if one is to compress his work within manageable and readable limits, he must begin somewhere and curb his anxiety to seek origins and to portray the forces which worked through the earlier centuries. The purpose of this work is to trace the main lines of constitutional development for more than a hundred and fifty years, beginning with the middle of the eighteenth century. State history must be largely neglected, but not totally lost to view.

Constitutional history, moreover, when viewed in its entirety, is of almost limitless extent, because to comprehend it fully one must have in mind social and industrial change and movement. Institutions and principles do not develop or move in a vacuum; they bear the impress of actual social need and of imperative adjustment, even though the waves of time often seem to dash in vain against the walls of habit and of established practice. But here again, there is so much to be taken into account that one must exercise continuous restraint. He must be satisfied by only occasional references to the pulsations of the social and economic life which cause constitutional controversies and account for important determinations by voters, legislatures, and courts.

In discussing the earlier period covered by this work, the purpose of the writer is to dwell upon the emergence of the constitutional system as embodied in the Constitution of the United States. Some attention must be paid to the transformation of colonies into self-governing commonwealths, and to the principles on which state constitutions were founded, for that was the heart of the Revolution. But I do not expect to enter upon more than incidental study of the growing irritation between the colonies and the home country. There is no need of prolonged examination of the dispute as a mere prelude to war. The causes of the conflict by arms which broke the empire in twain have been often told by competent scholars. Our main purpose must be to look for ideas, the announcements of doctrines, the unfolding of principles, which are of significance because they entered into the American constitutional system, when that system came into tangible existence.

There are two main thoroughfares which may be traced in traversing the three decades before 1788: (1) one of these marks the course of developing principles of limited government which was supposed to guard individual liberty. Legally limited governments were the impressive products of the generation which formed state constitutions and brought the United States as a body politic into being. (2) The other main thoroughfare is that which led on to the particular form which the United States assumed; with the adoption of the federal Constitution, a federal state was founded. This was a state almost, if not quite, new to the world, though to-day states of similar structure dot the earth. As a system of political order, federalism is characterized by a distribution of essential powers of sovereign authority among governments; each government has its distinct share of powers; and as long as the system remains unchanged by some constitutional process, each has its inviolable hold upon its field of activity. To put the case concretely — the United States is a federal state, because it is a composite or complex system of political organization; it has the quality of diversification, not of concentration or complete consolidation.[1] The central government on the one hand and each state on the other have their respective spheres of legal authority. The United States differs from a mere league of totally sovereign states and from a totally unitary state.

If we look upon the Revolutionary period as a period in which constitutional principles developed and found expression, and in which institutions were produced, if we are not content with the war and the cleavage of the old empire, if we examine the years to discover their creative character, we find the two main achievements which have already been mentioned — the establishment of limited government and the founding of the federal state. These were the products of discussion and aspiration. Every period in history must be evaluated by its results; only thus can its actual life be comprehended. The Revolutionary period, which lasted for a generation and ended with the adoption of the federal Constitution, was peculiarly prolific in ideas, principles, and political philosophy of a practical character; it ended in the successful building of a political structure which has survived.

Much of what is important to us as evidence of the creative forces of the Revolutionary period comes to light in an examination of the arguments used in the years before the war. Probably we can see better than did the statesmen of the time the full significance of the contest, because we know the results; we realize the implications of what was said and done as history brings them into the light. Our interest in those discussions is not due to any desire to discover whether, on the basis of the constitutional system of the old empire, the position taken by the colonists was legally sound or not. We must bear in mind the historical processes of preceding decades and also the immediate character of the controversy; but we must select those things which we find leading up to the end — the establishment of institutions and the crystallization of principles in the American constitutional system.

As one examines the speeches and pamphlets and resolutions which were put forth to support the colonial position, he discovers, quite naturally, that the lines which led on the one hand to limited government and were designed to protect individual liberty, and the lines which, on the other hand, led to the final foundation of the federal state — that is to say, the two lines of progress selected for special attention in this work — were interlaced; the arguments and pronouncements were mutually supporting. The declarations against parliamentary taxation included a demand for protection of the individual from arbitrary taxation and also the right of the colonies as constituent parts of the empire to tax themselves; they included, therefore, the striving for personal rights and for the recognition of colonial competence. The rights of the individual and the rights of each colony appeared, though logically distinguishable, to rest in some respects on a common foundation.

If chronological order is to be followed, rather than purely logical order, we may expect to find this interweaving; and in general it may be necessary to leave to the reader the comparatively easy task of determining whether the facts and arguments as presented point to the coming of limited governments guarded by written constitutions or give evidence of the principle of diversification which is embodied in the federal state. In the minds of the men of the time, the inevitable and fully-developed results of their own words were not of course perfectly plain. They were participants in a great movement, the full products of which could not be entirely appreciated.

[1] It would be easier to describe the United States as a body in which sovereignty is divided between state and nation. And that would probably be the definition of the men of the late eighteenth century. But that brings up the question whether sovereignty can be divided; and the vaguer definition given above seems therefore preferable here. If sovereignty is complete political authority, then there seems to be only one possessor of sovereignty in our system, viz., the power that can amend the Constitution of the United States.


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