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The Origins Of Modern Constitutionalism
The Tradition of Constitutionalism
by Wormuth, Francis D.
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A constitution is often defined as the whole body
of rules, written and unwritten, legal and extralegal, which describe a
government and its operation. This is a permissible and indeed a highly
convenient usage. But there is a more restricted idea equally deserving of a
name — the idea of a constitution as a contrivance which not only
describes but confines government, at least in its everyday activities. The
argument for such confinement was stated by Alexander Hamilton in The
Federalist: "In framing a government which is to be administered by men
over men, the greatest 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
government; but experience has taught mankind the necessity of auxiliary
precautions."
To these auxiliary precautions we give the name constitutionalism. The
tradition of constitutionalism begins in ancient Athens and has had a long,
interrupted, and irregular history to the present day. It has embraced devices
of two kinds. Institutional arrangements of one sort or another have been
advocated on the ground that they protected substantial interests from
governmental encroachment. "Checks and balances" have been the machinery on
which most of these contrivances relied; they have been nothing less than a
fetish with constitution-makers. Furthermore, there has been a persistently
recurring idea of the character of law. Two inferences have been drawn from the
proposition that law is a rule of conduct — that it is general, and that
it is prospective. To implement this conception, the doctrine of the separation
of the legislative from the executive power was introduced, and it will be
argued below that judicial review relies heavily on the same idea.
Among substantial interests property is prominent, and it is natural
that the "auxiliary precautions" which take the form of institutional
arrangements should aim at the protection of property. In the ancient world,
with its republican institutions, the propertied class undertook to defend
itself against the propertyless; in the Middle Ages, when kingship was the
chief political institution, property opposed itself to the royal power. But
constitutionalism has been used to protect other interests as well. In Athens
in the fourth century before Christ there were institutional arrangements
intended to prevent the democracy from being overthrown by a tyrant. From the
beginning of modern constitution-making in seventeenth-century England, freedom
of conscience has been an object of primary concern. The American constitutions
of the eighteenth century gave great attention to the protection of persons
accused of crime.
Conscious constitution-making appears to have entered the Mediterranean
world when the clan organization weakened and the contest of rich and poor
became a significant factor in politics. Solon was perhaps the first
constitution-maker. Plutarch says of his legislation for Athens: "Wishing to
leave all the magistracies in the hands of the well-to-do, as they were, but to
give the common people a share in the rest of the government, of which they had
hitherto been deprived, Solon made an appraisement of the property of the
citizens."1 Property qualifications were established for
office-holding, but not for the franchise, a device intended to protect the
interests of both classes.
A sort of bicameralism was another classical device. The Athenian
Areopagus and the Roman Senate, in the days of empire-building, directed
foreign policy and shared domestic power with the popular assemblies. Cicero
found in the Roman Senate itself a combination of aristocracy and democracy
gratifying to both principles.2
But the constitutional arrangements of democratic Athens were the most
elaborate. When the oligarchic Areopagus had been stripped of its power, the
chief concern was the protection of the democracy. At the time of Demosthenes
the jurymen of the great popular court, the Heliaea, swore: "I will give
verdict in accordance with the statutes and decrees of the people of Athens and
the Council of Five-hundred. I will not vote for tyranny or oligarchy. If any
man try to subvert the Athenian democracy or make any speech or any proposal in
contravention thereof, I will not comply. I will not allow private debts to be
cancelled, nor lands nor houses belonging to Athenian citizens to be
redistributed. I will not restore exiles or persons under sentence of death. I
will not expel, nor suffer another to expel, persons here resident in
contravention of the statutes and decrees of the Athenian People or the
Council. ..."3
In addition, every Athenian citizen took this oath:
(1) All notes will be found on pp. 216 ff.
If it be in my power, I will slay by word and deed, by my vote and by my
hand, whosoever shall suppress the democracy at Athens, whosoever shall hold
any public office after its suppression, and whosoever shall attempt to become
tyrant or shall help to install a tyrant. And if another slay such an one, I
will deem him to be without sin in the eyes of the gods and powers above, as
having slain a public enemy. And I will sell all the goods of the slain and
will give over one half to the slayer, and will withhold nothing from him. And
if anyone shall lose his life in slaying such an one or in attempting to slay
him, I will show to him and to his children the kindness which was shown to
Harmodius and Aristogeiton and to their children. And all oaths sworn at Athens
or in the army or elsewhere for the overthrow of the Athenian democracy I annul
and abolish.4
But the chief constitutional device was the indictment for proposing
illegal measures, the graphe paranomôn. This turned largely on the
distinction between laws or nomoi and decrees or psephismata. The
nomoi were of greater dignity and were subject to change only at an
annual revision. If the citizens assembled in the Ecclesia so directed, a large
court of jurymen, Nomothetai, were chosen by lot from the Heliaea. Before them
might be brought proposals for the repeal of old nomoi and the enactment of
new. After hearing debate the Nomothetai ruled in favor of the new law or the
old. This procedure suggests that of a constitutional convention. If the nomoi
are compared to constitutional rules, the psephismata stand in the
position of statutory law. A psephisma was proposed by the Boulé
or Council of Five Hundred, a democratic body chosen by lot. It was approved,
with or without amendments, by the assembly of all citizens, the Ecclesia. But
no psephisma was valid which was inconsistent with a nomos, nor
was a nomos valid unless it expressly repealed any earlier inconsistent
nomos. Against the original sponsor of such an illegal measure, whether
decree or law, any citizen might bring the indictment called graphe
paranomôn. The passage of a proposed psephisma would be interrupted by
the indictment; a psephisma or nomos already passed would be
suspended until the decision of the case by one of the popular courts. If a
year had elapsed since the proposal of the measure, its mover was exempt from
prosecution, but the indictment might still be brought against the measure
itself. This procedure has points of resemblance to judicial
review.5
But what survived the ruin of the ancient world was none of these
devices; it was Polybius' fanciful description of the Spartan and Roman
constitutions as mixtures of monarchy, aristocracy, and democracy. In
seventeenth-century England this conception was drawn into the active current
of constitution-making, where it has remained to this day.
There appeared in the Middle Ages another point of view which was not
entirely ousted by revived Greek ideas. What the ancient and modern world have
understood by the state was unknown in the Middle Ages. Jellinek believed the
medieval idea to be Germanic in origin: "While the ancient state appears at the
beginning of its history as polis or civitas, as an undivided community of
citizens, the monarchical Teutonic state is from the beginning dualistic in
form — prince and people form no integral unity, but stand opposed to each
other as independent factors."6 Whether we accept the Germanic
attribution or explain this dualism in terms of the conditions of conquest and
the subsequent development of feudal institutions, we must recognize the
changes which it introduced. In the Middle Ages the state was hardly more than
the person of the king.
In certain spheres he possessed over his subjects a personal authority
unlimited and supreme; other areas, often opposed to him under the name of the
kingdom, but consisting in substance of property and feudal institutions, were
thought of as autonomous, self-organized, and withdrawn from political power.
Gierke attributed the revival of the unitary conception of the state to
Hobbes;7 he has fixed the time accurately enough, but the ascription
of authorship is unduly narrow. In spite of the return of the state to
politics, however, the medieval conception of a dualistic society — Gierke
called it the idea of "double majesty" — lingered long in English law, and
in this country it supplied the background of the characteristic American
distrust of government.
It was also during the English Civil Wars that the second feature of
constitutionalism mentioned above — the proposition that law should be
prospective and general — reappeared. This idea was recognized in both
Athenian and Roman jurisprudence, but its revival in the seventeenth century
does not seem to have resulted from classical influences. It very soon became
associated with the new doctrine of the separation of powers. If law is to be
general and prospective in character, it is improper for the legislative power
to deal with particular cases. The temptation to improvise a special rule may
prove too strong. Likewise it is improper for the executive power, which
applies rules to individuals, to possess legislative power, for once again
persons may be deprived of the advantage of known and settled rules. Among
arguments for separating the legislative and executive functions, these were
perhaps the most cogent.
The doctrine of separation of powers was immediately assimilated to the
mixed monarchy, with the king in the role of independent executive; a second
balance, that of legislature against executive, was added to the conventional
balance of king, lords, and commons. Here we have most of the elements of
modern constitutional thought. The complication of the doctrine of balance by
the recognition of a third power, the judicial, is usually attributed to
Montesquieu, but this seems not to have been Montesquieu's intention. This
misconception of Montesquieu may have helped make more plausible the American
doctrine of judicial review, but the true ancestry of that doctrine seems to be
the original distinction between legislative and executive power, which
reinforced the idea that the legislative function was merely to formulate
general rules for the future, and the medieval conception of a twofold society.
The English common law became the inheritor of the tradition of an autonomous
realm independent of governmental power, and in defense of the common law
American judges resisted the actions of government.
Gierke has said that "the principle of popular sovereignty never played
any serious part in the theory of constitutionalism."8 Rather, that
theory seems to have consisted of two strands, the one institutional and the
other jurisprudential, which were twined together during the Interregnum and at
a somewhat later date came into association with "double majesty." Among these
elements the jurisprudential idea seems central, and perhaps this alone
possesses permanent value.
NOTES
(1) Lives, Solon, 18 (B. Perrin, trans.:
Loeb Classical Library), i, 451.
(2) Laws, III, xii.
(3) Demosthenes, Against Timocrates, §§
149-151 (]. H. Vince, trans.: Loeb Classical Library), p. 469.
(4) Andocides, On the Mysteries, §§
97-98, in Minor Attic Orators (K. Maidment, trans.: Loeb Classical
Library), i, 415.
(5) William W. Goodwin, Demosthenes on the Crown
(Cambridge, 1901), pp. 318 ff.
(6) Declaration of the Rights of Man and of Citizens
(Farrand, trans.: New York, 1901), pp. 50-51.
(7) Natural Law and the Theory of Society
(Barker, trans.: Cambridge, 1934), i, 60.
(8) Ibid., p. 152.
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