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The Origins Of Modern Constitutionalism
The Tradition of Constitutionalism
by Wormuth, Francis D.


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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