When the thirteen British colonies in North America declared their independence in 1776, they laid down that governments are instituted among Men, deriving their just powers from the consent of the governed. In so doing they were consciously echoing the words of the Great Charter which King John had sealed 561 years before, wherein he had undertaken that no tax may be levied in our kingdom without its general consent.
However, while England had for centuries been intent on limiting the power of the absolute monarchy, American constitution-writers now focused on limiting the power and potential danger of the new “absolute ruler” – Congress, and the power of federal government institutions generally. This they sought to achieve not only through constitutional provisions and the Bill of Rights, but also through the celebrated “checks and balances” whereby two Houses, and the President as Executive, exercise discipline and restraint over one another. The judiciary was also placed to act as a restrictive force; indeed the US Supreme Court has traditionally seen itself as the ultimate discipline upon government power, and champion of the citizen against government excesses.
The supremacy of the constitution over any and all branches of government was seen by America’s Founders as the essential assurance of orderly and disciplined government, a view clearly described by Mr Hugo LaFayette Black, Associate Justice of the US Supreme Court, 1937-1971.
“The form of government which was ordained and established in 1789 contains certain unique features which reflected the Framers’ fear of arbitrary government and which clearly indicate an intention absolutely to limit what Congress could do.
“The first of these features is that our Constitution is written in a single document. Such constitutions are familiar today and it is not always remembered that our country was the first to have one. Certainly one purpose of a written constitution is to define and therefore more specifically limit government powers. An all-powerful government that can act as it pleases wants no such constitution – unless to fool the people. England had no written constitution and this once proved a source of tyranny, as our ancestors well knew. Jefferson said about this departure from the English type of Government: Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction.
“A second unique feature of our Government is a Constitution supreme over the Legislature. In England, statutes, Magna Carta, and later declarations of rights had for centuries limited the power of the King, but they did not limit the power of parliament. Although commonly referred to as a constitution, they were never the supreme law of the land in the way in which our Constitution is, much to the regret of statesmen like Pitt the elder. Parliament could change this English Constitution; Congress cannot change ours. Ours can only be changed by amendments ratified by three-fourths of the States.
“A third feature of our Government, expressly designed to limit its powers, was the division of authority into three co-ordinate branches, none of which was to have supremacy over the others. This separation of powers with the checks and balances which each branch was given over the others was designed to prevent any branch, including the legislative, from infringing individual liberties safeguarded by the Constitution.
“All of the unique features of our Constitution show an underlying purpose to create a new kind of limited government.”
[Completion of the Constitution was followed shortly after by James Madison's proposed ten additions or Amendments, these first ten Amendments becoming collectively known as the Bill of Rights. Mr Justice Black continues:]
“Central to all of the Framers of the Bill of Rights was the idea that since Government, particularly the national government newly created, is a powerful institution, its officials – all of them – must be compelled to exercise their powers within strictly defined boundaries. As Madison told Congress, the Bill of Rights’ limitations point sometimes against the abuse of the Executive power, sometimes against the Legislative, and in some cases against the community itself; or, in other words, against the majority in favor of the minority.
“Madison also explained that his proposed amendments were intended to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode.
“Mr. Madison made a clear explanation to Congress that it was the purpose of the First Amendment to grant greater protection than England afforded its citizens. He said: In the declaration of rights which [England] has established, the truth is, they have gone no farther than to raise a barrier against the power of the Crown; the power of the Legislature is left altogether indefinite. Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, came in question in that body, invasion of them is resisted by able advocates, yet their Magna Carta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed. The freedom of the press and rights of conscience, those choicest privileges of the people, are unguarded in the British Constitution.
“It was the desire to give the people of America greater protection against the powerful Federal Government than the English had had against their government that caused the Framers to put these freedoms of expression, again in the words of Madison, beyond the reach of this Government.”
The distinguished group of delegates who assembled in Philadelphia in May 1787 included many who would be important in the conduct of the new nation’s affairs. Among them were George Washington. James Madison. Edmond Randolph, and George Mason of Virginia; Benjamin Franklin, James Wilson and Gouverneur Morris of Pennsylvania: Alexander Hamilton of New York, John Dickinson of Delaware: and Charles Pinckney of South Carolina.
The Convention had been called for the purpose of revising the Articles of Confederation, but the delegates quickly decided to go beyond their mandate and construct an entirely new constitution. A new government had to be formed that could deal successfully with the critical issues of finance, commerce and security – a government that, in the words of James Madison, would achieve a balance between power and liberty. Despite the wide differences between those with nationalist leanings and those who supported states’ rights, a spirit of compromise ruled, and at length a constitution was hammered out. It was adopted by the Convention on September 17, 1787.
After the many debates and writings on individual liberties preceding the Revolution, it is surprising that the original Constitution did not contain a Bill of Rights. The only provisions reminiscent of the earlier demands for guarantees of rights and liberties are those of Article I, section 9, denying Congress the power to suspend the writ of habeas corpus or to pass bills of attainder or ex post facto laws: those of Article III, section 2, providing for jury trial in the federal courts, and section 3, placing limitations on trials for treason: and that of Article VI, section 3, prohibiting religious tests for officers.
The question of including a Bill of Rights was considered during the convention. Charles Pinckney submitted a list of thirteen propositions on the liberties of the citizen for consideration, but no action was taken on his proposal. As the final vote on the Constitution approached, George Mason urged that it be prefaced by a Bill of Rights to “give great quiet to the people.” This plea was brushed aside. Many members of the Convention, particularly the Federalists, believed that such a bill was unnecessary. Its purpose, they contended, was to protect the subject from tyrannical rulers, and such provisions had no place in a constitution in which the ultimate power was in the people: moreover, to specify particular rights was to limit constitutional protection to those rights only. This was the prevailing view: nevertheless, the omission of a bill of rights became a rallying point for the Anti-Federalists in the state ratifying conventions.
The Constitution of 1787 was a practical document aimed at creating a machinery of government. Inherent in that machinery was protection against arbitrary authority in the division of power among the executive, legislative and judicial branches. The Constitution represented an experiment in government, and was necessarily written with little basis in practical experience. Still, in the minds of many of the delegates were principles of the British constitution, which Pinckney declared to be “the best constitution in existence.” Those principles would be evidenced more clearly in the subsequently enacted Bill of Rights, as well as Constitutions of individual States.
Most of the original founder-States of the USA had produced their own Constitutions, and as territories were granted statehood, they too felt the need to set forth the essential procedures, obligations and limitations controlling the function and laws of their governments. Right from her very birth, America would espouse and never abandon the principles of constitutional supremacy and popular participation for which England had fought so hard and so long.
Constitutional tradition as it developed in Britain and spread later to America and much of the Commonwealth was indeed a slow and occasionally violent process. It is a thousand-year-old story, which may be said to begin in the year 1215 when the Great Charter sought to limit the powers of an absolute monarch. Yet despite the persistence of reformers and the progress made at the birth of the United States, the development of true constitutional security from autocratic rule is by no means complete today.
Indeed, when one compares the modern government, with its unlimited rights of taxation, its near-total lack of financial discipline, and the tenuous relationship between elected Members and their voters, one may reasonably wonder how far real and effective constitutional discipline over those wielding political power has progressed since the Great Charter of 1215.
The need for constitutional discipline over government today is every bit as great as was the need for constitutional discipline over the monarchy in 1215. It is therefore worth exploring the theory of constitutional government in more detail.