A Constitutional History of the United States Chapter I - Introduction byMcLaughlin, 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.
