I. Introduction: The Taproots of American Constitutionalism

The American Constitution is the latest of a long line of efforts in Western civilization to limit the power of government. The American founders were trying to accomplish an old thing-republican self-government-in a new way. They were peculiarly conservative revolutionaries. They were men of the Enlightenment, excited about the discoveries of the revolution in natural science and the New World, of the Protestant Reformation as well as secular philosophy. At the same time, they were steeped in the tradition of the ancient (Greco-Roman) and medieval (Judeo-Christian) worlds. Alexander Hamilton noted that "The science of politics… like most other sciences, has received great improvement," and he began the Federalist Papers with the observation that "It seems to have been reserved to the people of this country, by their conduct and example to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force." Thus, a brief investigation of the taproots of western constitutionalism will set the context for American constitutional history.

Government under a written constitution, with institutional safeguards against abuse of power, is almost entirely a modern phenomenon. In the ancient and medieval period, government was responsible to a higher authority such as nature, reason, law, or God, in what is generally referred to as the "natural law" tradition, but there were few effective political and institutional means of applying such limits. The American Constitution attempted to give effect to what Jefferson in the Declaration of Independence called "the laws of Nature and of Nature's God."

The most basic idea of constitutional government for the western imagination derived from the Hebrews, who gave the world the idea of a political community responsible to a sovereign God. This God bound himself by law, particularly in the covenants that he entered into with man. The ideal form of government for the Hebrews was a sort of tribal theocracy, with God ruling through the occasional office of prophet or judge, the great charismatic figures from Moses to Gideon, Samson, and Samuel. The Hebrew people eventually demanded a king, to be like other nations. But Hebrew kingship was peculiarly limited. Kings were stewards of God's people and responsible to him, and the offices of prophet and priest remained separate. This separation of secular and ecclesiastical offices remained one of the most important ideas that preserved liberty and limited government into the modern period. At the same time, Hebrew political history also provided a justification for oppressive government, with its idea that God often used tyrants to punish the people for their sins-that tyrants were "the scourge of God."

The Hebrews were important in western constitutional thought because the western mind was fundamentally religious until the modern age. The founders of the American constitutional system were all well-versed in Scripture and, however religiously unorthodox some of them may have been, knew that they were legislating for an intensely religious citizenry. But the Hebrews did not often possess political independence or rule themselves, so there was not much Hebrew political history upon which to draw. Nor did the Bible, the only source of this history, provide much detail about the particular institutions or practices by which government was carried on. Christian Europe drew more deeply upon the ideas and experience of the Greeks and Romans.

The Greeks provided the first real political science for the West, arising out of the experience of the poleis, or city-states, of the classical period, particularly Athens. The Greeks defined themselves in this period by their political constitutions, in which the people of a community governed themselves. Their laws were not handed down by the gods or priests, nor were they slaves to a despot, like the Persians. The good life for the Greeks was the political life: in Aristotle's phrase, man was an animal intended by nature to live in a polis, or a political animal. "Freedom" for the Greeks meant the independence of their poleis, and the power to participate in government. The best life was to devote oneself to the polis and to sacrifice oneself to it. The more modern notion of individual liberty, to be free to live one's private life without public interference, the Greeks denigrated in favor of what has been called "positive liberty."

The Greeks, particularly Aristotle, also devised the basic classification of constitutions, depending on whether they were governed by the one, the few, or the many. The definition of good or constitutional government was whether the one (monarchy), the few (aristocracy), or the many (polity) governed for the good of the whole. If they governed only for themselves, they were the corrupt forms of tyranny, oligarchy, or democracy. Aristotle did suggest that a middle or mixed regime might be preferable, a way to avoid the excesses of any of the pure forms. Most importantly, Athens provided the most famous example of democracy in action. Fifth-century Athens was a regime in which every citizen (free, adult male children of citizens) was a legislator. But, for all the magnificent intellectual and cultural achievements of the city, its degeneration into civil war, defeat in the Peloponnesian War, and execution of Socrates made democracy a by-word for most of European history. Democracy's reputation for volatility, factional strife, and majority tyranny was alive and well in the minds of the American founders, who were all educated in classical history and philosophy.

The more practical-minded Romans gave more institutional solidity to Greek ideas of public life. The Romans shared the Greek idea of the polis in what they called the republic-government devoted to res publica, or public things, rather than to private ones. The Roman republic was probably the most widely-admired ancient regime for Americans of the founding period. The Greek philosopher-historian Polybius depicted the republic as the realization of the Aristotelian suggestion of a "mixed regime," in which the three social orders each had power and were able to keep one another in check. This idea of "checks-and-balances," however far removed it was from the realities of Roman political life, provided an appealing model for later generations. In particular, Anglo-Americans of the British Augustan age believed that the British constitution preserved liberty in a similar fashion, and the idea would be built into the Constitution of 1787. On the other hand, in its own descent from republic to empire in a bloodbath of factional strife, Rome provided the object lesson of overweening oligarchy.

The Romans expanded and elaborated on Greek political ideas. Cicero, the famous orator and statesman at the end of the republican period, gave immortal expression to the Greco-Roman idea of natural law. "The law is right reason in agreement with nature; it is of universal application, unchanging and everlasting. And there will not be a different law at Rome and Athens or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and times." The Roman empire provided Roman jurists with the opportunity to seek out the common elements of the laws of all peoples, compiling what they called the jus gentium, or law of nations, the foundation of international law. And, for all their devotion to public life, the Romans began to define a realm of private rights in what came to be called civil law.

Medieval Europe possessed a greater tradition of constitutional government than has usually been recognized. At the heart of medieval political history is the constant tension between secular and ecclesiastical authorities. Nobody imagined a "separation of church and state"; all assumed that secular powers had duties to the church and that church authorities had secular roles to play. The question was one of degree and priority. But the upshot of the constant wrangling over degree and priority was that Europe never succumbed to a consolidated church-state. This is in large part the explanation for the unusual degree of liberty and local self-government in western Europe, and in England in particular.

Natural law and Stoicism blended well with the universalization of Judaism that Christianity effected. Christianity did not provide a detailed political program. The most important instruction from the Gospels was Jesus' admonition to "render unto Caesar the things that are Casear's, and render unto God the things that are God's." The temporal and spiritual realms were not completely united, nor completely separate, but in tension. There were extremists on both sides who desired either complete liberation from all earthly authority, or who sought to fuse earthly and spiritual power in a theocracy. Until the Second Coming, at least, spiritual and temporal claims would continue to act on men. By the time of the collapse of the western Roman Empire, a "two swords" theory had taken hold, distinguishing the secular and ecclesiastical realms.

The chief characteristic of the political life of medieval Europe was fragmentation. Despite the ideal of Christendom or the res publica Christiana, where the temporal and spiritual powers worked together, the actual situation was one of competition within and among secular and ecclesiastical powers. Nobles and bishops often frustrated the designs of their superiors. Popes would often conspire with secular lords against their kings, kings would often intrigue with the bishops of their domains against popes. The second millennium saw the emergence of a social group with its own political agenda: the new urban bourgeoisie, townsmen who wanted to be free of both feudal and ecclesiastical control. This group in particular led the way toward civil liberty as we understand it today. The phrase that is often used is: "city air makes men free." Medieval cities were full of associations that engaged in all sorts of secular and religious activities-guilds, confraternities, communes, monasteries, and universities. These institutions constituted "civil society," the crucial organizations that mediated between the individual and the state, providing room of liberty and experience in self-government. The device of political representation also emerged in the Middle Ages, something that the ancient republics lacked and an element that would make modern republican government possible. Behind the disorder and complexity of medieval political life was a rough-and-ready constitutionalism that prevented absolutism.

One of the most important sources of medieval liberty was the principle of customary law, reinforced by the infusion of Germanic barbarian tribes into the Roman Empire. Unlike Roman emperors, Germanic kings could not simply make law-they had not acquired the sovereign power of the people as emperors claimed. Over time a doctrine emerged that separated gubernaculum, or the sphere in which kings could act with discretion, from jurisdictio, where they were controlled by customary law, in a way that preserved the lives, liberties, and property of their subjects.

The triumph of the secular nation-state and the breaking up of the Roman Catholic Church set the stage for modern constitutionalism. While the motives of the Protestant reformers were primarily theological, they also had important political aspects. All of them rejected papal supremacy within the church. Most, like Martin Luther, ware satisfied to substitute the secular prince for the pope, and to retain bishops and ecclesiastical authority. The Calvinists went further, vesting authority in smaller groups of churches and giving a prominent role to laymen-the Presbyterian form of government. This was particularly important for America, because Calvinist or reformed Protestantism was the deepest religious influence in American history. The Puritans who settled New England were radical Calvinists who believed that even Presbyterian government was too hierarchical. For them, each congregation was independent. And even nominally episcopalian churches in America practiced a sort of de facto congregational independence. Simply put, relatively democratic church government provided valuable experience for civil government. Calvinists in Europe found themselves persecuted by both Catholics and Episcopal Protestants; the most intense of the wars of religion in the seventeenth century involved such three-way contests.

There were two, opposite reactions to the catastrophic wars of religion. One was absolutism, the belief that the secular authorities needed complete control of the Church, and that there were no rights of religion or conscience against the state. On the other had, reformed Protestants began to develop a theory of religious toleration, to deny that the state had any power to coerce people regarding religious matters. The doctrine of absolutism prevailed on the continent, but in England the principle of toleration triumphed. The American colonies got their start and developed during this great battle in England of absolutism versus constitutionalism, and this provided the most immediate history for the framers of the American Constitution.

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Textbooks

• Michael Les Benedict, The Blessings of Liberty (1996).
• Kermit Hall, The Magic Mirror (1989).
• Alfred H. Kelly, Winfred A. Harbison, and Herman Belz, The American Constitution: Its Origin and Development, 7th ed., 2 vols. (1991).
• Andrew Cunningham McLaughlin, A Constitutional History of the United States (1935).
• Melvin Urofsky and Paul Finkelman, A March of Liberty (2001).

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Document Collections

• Leonard W. Levy, Kenneth W. Karst, and Dennis J. Mahoney, eds., The Encyclopedia of the American Constitution, 4 vols. (1986).
• Philip S. Kurland and Ralph Lerner, eds., The Founders Constitution, 5 vols. (1987).
• Francis N. Thorpe, ed., The Federal and State Constitutions, Colonial Charters and Other Organic Laws, 7 vols. (1909).

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History of Constitutionalism

• Herman J. Belz, A Living Constitution or Fundamental Law? American Constitutionalism in Historical Perspective (1998).
• Edward S. Corwin, The "Higher Law" Background of American Constitutionalism (1955).
• Carl J. Friedrich, Constitutional Government and Democracy: Theory and Practice in Europe and America, 4th ed. (1968).
• Charles Grove Haines, The Revival of Natural Law Concepts (1930).
• Charles H. McIlwain, Constitutionalism: Ancient and Modern (1947).
• Francis D. Wormuth, The Origins of Modern Constitutionalism (1949).

II. The Anglo-American Constitutional Experience

Up until the American Revolution, most American colonists thought of themselves as Englishmen, with all of the “rights of Englishmen.” England enjoyed a reputation for constitutional liberty and, while not without its mythological elements, the reputation was well deserved on the whole. All of the principles of Greco-Roman, Judeo-Christian, and medieval constitutionalism contributed to it. Most important, England withstood the challenge of absolutism in the sixteenth and seventeenth centuries, and could celebrate a “Glorious Revolution” in 1688. In the midst of these political and constitutional struggles, England founded colonies in North America where the seeds of liberty struck still deeper roots.

The most popular view of the development of English rights in the period of the American founding was that of primordial Anglo-Saxon liberty. In this story, the Germanic invaders brought their customs of tribal democracy and limited kingship from the forests of Germany to England. These ancient liberties were extinguished when the Norman conquerors of 1066 imposed the yoke of feudalism and Roman law, and the English began to recover it with Magna Carta in 1215. While often exaggerated and distorted, the myth contains a germ of truth, and it certainly had a powerful effect on the Anglo-American imagination for centuries, in ways that influenced their politics.

Magna Carta is the cornerstone of English constitutional liberty, establishing what would come to be known as the “rights of Englishmen.” Its first provision confirmed the freedom of the church. This kept alive the separation of church and state as bulwark against consolidated power. Article twelve provided for consent to taxation. This was probably the most important practical provision of the charter, for nothing more effectively limits government power than limiting government revenues. Other articles provided for trial by a jury of one’s peers, prohibited arbitrary deprivation of liberty or property, and guaranteed certain procedures in criminal prosecutions. Most of these were summarized in article thirty-nine, which said, “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” This came to be called “due process of law” or “the rule of law.”

It is true that Magna Carta was concerned only with the particular interests of a small group of people, the nobility of thirteenth century England. And it is true that later politicians and historians often inflated its importance and created something of a myth about the establishment of English liberty in 1215. But ideas often take on a life of their own, far beyond the intent of the men who first give expression to them. The barons at Runnymede were no philosophers, but they were giving concrete, historical form to principles of natural law—the separation of powers, consent, due process. They were interested in specific liberties, not liberty in general—and this was better for liberty in the long run than if they had been speculative about it. One thing more was needed to secure these rights: an institution of government. Magna Carta contained a very complicated procedure for making sure that the king kept his promises, but it was several decades before this developed into the body that would really do the job: Parliament.

Certainly the thirteenth century English already considered themselves an exceptionally free people, comparing themselves favorably with the French. In England the king was limited by law and custom; in France, under Roman law, the king was above the law. Henry of Bracton began to distinguish gubernaculum, or the realm of the kings’ prerogative and discretionary power, from jurisdictio, when the king was limited by legal procedure. Two hundred years later, Sir John Fortescue, chief justice under King Henry VI, directly denied that the Roman principle of imperial sovereignty applied to England. “A king of England is obligated by his coronation oath to the observance of the law,” Bracton wrote. “An English king cannot, by himself or his ministry, lay taxes, subsidies, or impositions upon the subject, of any kind whatsoever. He cannot alter the laws, or make new ones, without the express consent of the whole kingdom in Parliament assembled.”

Fortescue wrote just as the Tudor family was about to consolidate political control of England and face the country with the prospect of continental-style absolutism. It was the Tudor King Henry VIII who set off England’s peculiar religious reformation—not out of any theological convictions, but because he could not have his marriage annulled— bringing the English church as much under royal control as any of the continental churches. It was quite in keeping with the drift toward absolutism in Europe that the Tudors took over the English Church, destroying the ecclesiastical check on secular power that had characterized the Middle Ages.

Though it helped Henry to take over the Church in the sixteenth century, Parliament came to be the main opponent of royal power in the seventeenth century, along with the common law courts and the Calvinist churches. The Calvinists believed that the Church of England was Protestant in name only. The issue came to a crisis, twice, in the seventeenth century, when the English overthrew two kings. When the Tudor line ran out in 1603, James Stuart, king of Scotland, became king of England. James and his son Charles believed that kings were above the law, superior to parliaments, and could govern without them. They were particularly intent on getting money out of their subjects without Parliament’s consent, and created a number of new courts to collect them—courts that used Roman law, without juries. They also attempted to impose a high church Anglicanism on the English, which was offensive to both Catholics and Calvinists, and united them against the Stuarts. As one English historian put it, “The two religious bodies which have done the most to secure the rights of man are those which really cared least about individual liberty—the Roman Catholic Church and the Presbyterian.” That may sound a little harsh and bigoted, but it shows again how liberty and constitutional government has often been an unintended by-product of struggles for power.

When Charles again demanded funds from Parliament in 1628, he was met by the Petition of Right, in which Parliament reminded him that “no [tax] shall be levied by the king or his heirs in this realm, without the good will and assent of Parliament,” and that “No person shall be compelled to make any loans to the King against his will, because such loans are against reason and the franchise of the land.” They continued, “By the statute called the Great Charter of the Liberties of England [Magna Carta] it is declared that no freeman may be taken or imprisoned or be disseised of his freehold or liberties, or his free customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land. And of late great companies of soldiers and mariners have been dispersed into divers counties of the realm, and the inhabitants against their wills have been compelled to receive them into their homes, and there to suffer them to sojourn, against the laws and customs of this realm, and to the great grievance and vexation of the people.” Charles didn’t appreciated being lectured to in this fashion, so he dissolved Parliament and did not call another one until 1640.

This Parliament sat until the king was overthrown and executed, the House of Lords was abolished, and England became a republic. England was plunged into a civil war—one that was not as bloody as the wars if religion on the continent, but still traumatic enough. The conflict followed the pattern of most revolutions, with a democracy degenerating into anarchy and then into tyranny, a military dictatorship under Oliver Cromwell. After Cromwell’s death, Parliament invited the deceased king’s son, Charles II, to return from exile and restore the monarchy. Charles agreed to respect the “just, ancient and fundamental rights” of Englishmen, agreed to pardon all offenses committed during the civil war, and to freedom of conscience in religion. Charles was able to maintain the settlement for twenty-five years but his brother, James II, ended up raising suspicions of absolutism and Catholicism again. Parliament again overthrew the king, this time in the bloodless “Glorious Revolution” of 1688-89. Parliament invited William of Orange to be king, provided that he agreed to the terms of the Bill of Rights. The Bill of Rights was the most important statement of the rights of Englishmen for Americans of the colonial period. Many of its provisions are precisely those of our own Bill of Rights. It stated, “Whereas the late James II by the assistance of divers evil counselors, judges, and ministers employed by him did endeavor to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom, by assuming and exercising a power of dispensing with and suspending of laws, and the execution of laws, without consent of Parliament: By levying money for and to the use of the crown, by pretence of prerogative, for other time and in other manner than the same was granted by Parliament; By raising and keeping a standing army within this kingdom in time of peace, without the consent of Parliament, and quartering soldiers contrary to law; By causing several good subjects being Protestants to be disarmed, at the same time when papists were both armed and employed contrary to law; And excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of subjects; and excessive fines have been imposed; and illegal and cruel punishments have been inflicted; all which are utterly and directly contrary to the known laws and statutes and freedom of this realm.” This restated most of the fundamental principles of English constitutionalism—consent to taxation, no standing armies in time of peace, the right to bear arms, due process in criminal procedure—that would appear again in the Declaration of Independence and the American Bill of Rights. Parliament also asserted control over the succession to the crown, so that from this point on no claim of monarchical sovereignty would threaten England again. Rather, it was said that the sovereign in England was “the King in Parliament,” a kind of mixed government that would prevent tyranny and preserve liberty.

In England, as on the continent, people drew two opposite conclusions from the wars of religion—and the English Civil War and Glorious Revolutions were primarily religious wars. These were the absolutist and the libertarian reactions. Thomas Hobbes wrote in response to the Civil War. The war showed Hobbes that men were beasts and would live the lives of beasts—“solitary, poor, nasty, brutish, and short,” as he put it— unless an all-powerful government protected them from one another. This was the origin and nature of government, which needed to be absolutely sovereign, what Hobbes called the “Leviathan.” There were no natural rights, in Hobbes’ view—the law of nature was the law of the jungle. This is the essential argument of modern absolutism. John Locke, on the other hand, looked at government with the experience of the Glorious Revolution in mind and devised a libertarian theory of government. For Locke, men had rights in the state of nature, and formed governments to secure those rights more effectively. They did not surrender their natural rights to that government—such rights were inalienable—and gave that government only limited powers. And if the government abused those powers, the people could alter or abolish it. In essence, Locke was giving a theoretical explanation to justify what had taken place in the Glorious Revolution, a modest, peaceful, basically conservative revolution. Four score and seven years later, Thomas Jefferson would do the same for the American Revolution.

It was during the tumultuous seventeenth century that the English established their first colonies in the New World. It is easy today to see that the seeds of rebellion were sown very early, that America was conceived in liberty long before 1776. Edmund Burke was among the few English statesmen to recognize it in the eighteenth century. The same forces of Protestantism and parliamentary government that drove the English civil wars were planted along the Atlantic coast.

Almost all of the settlers were reformed Protestants, and even those who were Anglican became accustomed to a high degree of self-government in their churches. There were no bishops in America, just as there was no secular aristocracy. The first constitutions in America reflected this. The Mayflower Compact simply transferred the covenant that made a congregation into a constitution for civil government. Other colonies that were established as business corporations turned their charters into constitutions. This is how the Massachusetts Bay Company, a project undertaken by religious dissenters in England, evolved. The General Court (originally a meeting of stockholders) became a civil representative body, with membership based on membership in a Puritan congregation. In Virginia, the House of Burgesses was used as a promotional device to attract settlers, to assure Englishmen that they would have a say in the government of the colony. The charter of the Massachusetts Bay Company granted that every settler and his descendants “shall have and enjoy all liberties and immunities of free and natural subjects within any of the dominions of us, our heirs and successors, to all intents, constructions, and purposes whatsoever, as if they and every one of them were born within the realm of England.”

Every colony had a charter from the king, and all of them guaranteed the settlers that they retained their rights as Englishmen in the New World. Every colony had a popular assembly that looked like a little parliament, most of which actually exercised more real power than the Parliament in London. Every American constitution also provided a great deal of local self-government. Most political action took place at the county and town level. There already was a great deal of “federalism” within the colonies. The word itself reflects these origins, derived from the Latin foedus, or “compact.”

The colonists were the most highly educated people in the world, and legal knowledge was especially widely diffused among them. Lawyers were especially important in politics, and every liberally educated man in America was familiar with legal principles and constitutional history. The colonies were also prosperous. They were little republics, and were also commercial republics. This made the common English hostility to taxation even more intense in America. Property rights were especially important in a country where property was widely held, and where business was not disdained as it was in the Old World, where deference to nobility of blood and office remained strong. Even in that part of British North America where these traits were least evident, among the great plantation owners of the South, the spirit of liberty was just as intense, because slaveholders had first-hand experience with tyranny.

All of this was reinforced by the fact that the British had largely left their American colonies to fend for themselves for a century and a half. The whole issue of the American Revolution was really laid out in the Glorious Revolution of 1689. The question was whether the principles of the Glorious Revolution, expressed in the Bill of Rights and Locke, applied to the colonies. Americans believed that they did. Americans had participated in the Glorious Revolution themselves, overthrowing King James’ governors who, they believed, were going to establish “popery” and arbitrary government in America. They believed that they had vindicated the right to govern themselves by their assemblies just as Englishmen had established the supremacy of their Parliament in England. The British, on the other hand, never gave a direct answer to the question of whether colonial self-government was a right or a privilege. The charters and assemblies that James had dissolved were restored, but it was not clear whether this was a British gift or a colonial right. And for the next seventy years the British maintained their policy of salutary neglect, and the colonists continued to govern themselves. As long as no crisis brought the issue up, both sides were happy to let it alone.

In the meantime, the American colonists were developing a distinctly modern political culture. They certainly maintained a great many features of traditional political thought: acceptance of monarchy, hierarchy, and deference; a belief that it is government’s role to inculcate virtue and piety in the people; and a suspicion of democracy and faction or party. At the same time, American politics exhibited many traits of modern interest-group competition. With fifty perfect of adult white males enfranchised, the colonies were the most democratic polities in the history of the world. The popular branches of their legislatures were the dominant ones, able to control finances especially and to resist the royal governors. And these assemblies were often arenas for contests among a multitude of ethnic, cultural, religious, and economic groups. While the American Revolution would evoke the language of traditional republicanism, and while Americans would never be fully comfortable with partisanship, the latter was the prevailing trend in the 18th century. While these internal cleavages in American politics often threatened discord within and among the colonies, their common constitutional culture, expressed in their charters, institutions, traditions, and principles, united them more than these differences divided them.

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• Charles M. Andrews, The Colonial Period of American History, 4 vols. (1935-39).
• Matthew P. Andrews, The Founding of Maryland: Province and State (1933).
• Bernard Bailyn, The Peopling of British North America: An Introduction (1986).
• Bernard Bailyn, The Origins of American Politics (1970).
• Patricia Bonomi, Under the Cope of Heaven: Religion, Society, and Politics in Colonial America (1986).
• George A. Billias, ed. Law and Authority in Colonial American (1965).
• B. Katherine Brown, “Freemanship in Puritan Massachusetts,” American Historical Review 59 (1954).
• Robert F. Brown, Middle Class Democracy and the Rev in Massachusetts, 1691-1780 (1955).
• Wesley Frank Craven, The Colonies in Transition, 1660-1713 (1968).
• Wesley Frank Craven, New Jersey and the English Colonization of North America (1964).
• George M. Dutcher, “The Rise of Republican Government in the Untied States,” Political Science Quarterly 55 (1940).
• A. Roger Ekirch, “Poor Carolina”: Politics and Society in Colonial North Carolina, 1729-1776 (1981).
• David Hackett Fischer, Albion’s Seed: Four British Folkways in America (1989).
• David H. Flaherty, ed., Essays in the History of Early American Law (1969).
• Lawrence M. Friedman, A History of American Law (1973).
• Julius Goebel, Jr., History of the Supreme Court of the United States: Antecedents and Beginnings (1971).
• Jack P. Greene, Pursuits of Happiness: The Social Development of Early Modern British Colonies and the Formation of American Culture (1988).
• Jack P. Greene, Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States, 1607-1788 (1986).
• James Henretta, “Salutary Neglect:” Colonial Administration Under the Duke of Newcastle (1972).
• Mary Jeane Anderson Jones, Congregational Commonwealth: Connecticut, 1636-62 (1968).
• Stanley N. Katz, “The Origins of American Constitutional Thought,” Perspectives in American History 3 (1969).
• Leonard W. Labaree, Conservatism in Early American History (1948).
• George Langdon, Jr., Pilgrim Colony: A History of New Plymouth, 1620-91 (1966).
• Lawrence W. Leder, America, 1603-1789: Prelude to a Nation (1972).
• David S. Lovejoy, The Glorious Revolution in America (1972).
• Donald S. Lutz, The Origins of American Constitutionalism (1988).
• Donald S. Lutz, Colonial Origins of American Constitutionalism: A Documentary History (1998).
• Perry Miller, The New England Mind: From Colony to Province (1953).
• Samuel Eliot Morison, Builders of the Bay Colony (1930).
• William E. Nelson and Robert C. Palmer, Liberty and Community (1987).
• Herbert L. Osgood, The American Colonies in the Seventeenth Century, 3 vols. (1904-07).
• Herbert L. Osgood, “The Corporation as a Form of Government,” Political Science Quarterly 11 (1896).
• Herbert L. Osgood, “The Proprietary Province as a From of Government,” American Historical Review 2 (1897).
• Herbert L. Osgood, “The Political Ideas of the Puritans,” Political Science Quarterly 6 (1891).
• J.R. Pole, Political Representation in England and the Origins of the American Republic (1966).
• John E. Pomfret, Founding the American Colonies, 1583-1660 (1970).
• Robert C. Ritchie, The Duke’s Province: A Study of New York Politics and Society, 1664-91(1977).
• Clinton L. Rossiter, Seedtime of the Rep (1953).
• Ellis Sandoz, ed., The Roots of Liberty: Magna Carta, Ancient Constitutionalism, and the Anglo-American Tradition of Rule of Law (1993).
• Max Savelle, Seeds of Liberty: The Genesis of the American Mind (1948).
• Barry Alan Shain, The Myth of American Individualism: The Protestant Origins of American Political Thought (1994).
• Frederick B. Tolles, Meeting House and Counting House: The Quaker Merchants of Philadelphia, 1682-1763 (1948).
• Clarence L. Ver Steeg, The Formative Years, 1607-1763 (1964).
• Stephen Saunders Webb, The Governors-General: The English Army and the Definition of the Empire, 1569-1681 (1979).
• Benjamin F. Wright, Jr., American Interpretations of Natural Law (1931).
• Esmond S. Wright, The Search for Liberty: From Origins to Independence (1995).

III: The Revolution and the Constitution, 1763-89

The long period of “salutary neglect,” in which Great Britain largely left the colonies to govern themselves, came to an end in 1763. Britain defeated France in the Seven Years War (known as the French-Indian War in America), and acquired an immense North American empire, the problem of administering it, and an enormous war debt. As Englishmen on the two sides of the Atlantic grappled with their new situation, they entered upon a long chain of mutual misunderstandings and recriminations. Within a decade, the British came to see a set of rebellious ingrates. The Americans discerned nothing less than a tyrannical plot to enslave them. All of this brought to light the divergent political and constitutional development of the two sides that had been ignored over the previous century.

Britain’s policy got off to a bad start with the Proclamation of 1763, which forbade the colonists from settling beyond the crest of the Appalachian Mountains. The British feared that aggressive, land-hungry Americans would provoke Indian wars, and wanted to restrain them until they could guarantee military security and civil order. In the American perspective, what was the use of having expelled the French from North America if British Americans could not take advantage of it? Throughout the imperial conflict and for decades after—indeed, up to the American Civil War—the question of the organization and settlement of the vast American West was a paramount problem.

Further aggravating the situation was the British intent to maintain a regular army in America to police the frontier. This raised the specter of “standing armies in time of peace” that was now deeply embedded in the imagination of Anglo-Americans. Moreover, the unwillingness of the British to leave police work to the colonial militia showed the contempt with which the Mother Country viewed the colonial contribution to the recently-concluded war—a contempt which would also lead them to underestimate colonial capacity during the War for Independence, and which was part of the general condescension of the British toward colonial culture.

In addition to an army, the British realized that they would have to establish a more effective administration in the colonies, one that was not dependent, as the royal governors were, on appropriations from the tight-fisted colonial assemblies. They sought to establish a “civil list” of reliable imperial officers. Americans also came to believe that, along with the army and bureaucrats, the British would impose bishops of the Church of England. In theory, the Church of England was the established church in most American colonies; in fact, without bishops, the colonists governed their local churches just as they governed their local governments. Although there were no serious plans to send one, there was probably more alarm and ink spilled over the prospect of an Anglican bishop than over any other issue.

All of these plans would take money, and the conflict erupted as Parliament began to try to get it out of the colonists. The first attempt was the Sugar Act of 1764—a tax on molasses from foreign colonies, molasses being the main ingredient in the American manufacture of rum. The Act in fact lowered the duty on imported molasses, which heretofore American importers had evaded by bribing British customs officials. But the ministry expected to collect a greater revenue at the lower rate. What alarmed the colonists was the purpose of the act. It was not merely an effort to regulate imperial trade, part of the general mercantilist policy pursued by European Empires; rather, it was an attempt to raise revenue, which the colonists believed could not be done without the consent of their assemblies. (Ironically, after the American Constitution gave Congress the power to tax imports, opponents of tariffs would argue just the opposite: that tariffs could be for revenue only, and not to protect domestic manufacturing.) As well, offenders against the law (smugglers) would be prosecuted in Vice-Admiralty courts. These were royal “prerogative courts” that did not follow the rules of common law nor provide jury trials. Americans shared the English belief that non-common law courts were hostile to liberty. In addition, the nearest one was in Halifax.

Parliament’s Stamp Act of 1765 provoked an explosive reaction. It required the payment of a duty for nearly every printed document—newspapers, legal deeds, college diplomas, even playing cards. It was in no way connected to imperial trade; it was an “internal tax” designed to raise revenue. It also fell most heavily upon the most vocal, articulate, and politically active colonists: lawyers and publishers. The British ministry was utterly unprepared for the colonial reaction (as was Benjamin Franklin, the agent for several American colonies in London, who hoped to profit by being a stamp tax collector). Colonists published numerous resolutions and remonstrances against the act, and sent delegates to a Stamp Act Congress, the first effective continental congress. Most important, they organized an economic boycott, refusing to purchase British goods.

As a result of the boycott, English merchants persuaded a new Whig ministry to repeal the Stamp Act in 1766. At the same time, Parliament enacted the Declaratory Act, entitled “An Act to Better Secure the Dependency of His Majesty’s Dominions in America Upon the Crown and Parliament of Great Britain.” It emphatically declared that the King-in-Parliament “had, hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America, subjects of the crown of Great Britain, in all cases whatsoever.” In a sense, the whole issue of the imperial conflict rested on this point: sovereignty. In the decades since the Glorious Revolution, the British had come to reject the idea of government limited by higher law. The British remained committed to the political outcome of the Glorious Revolution--the supremacy of Parliament—but overlooked the principles behind it, articulated in the Bill of Rights and Locke’s Second Treatise. William Blackstone signaled this change in his Commentaries on the Law of England. This monumental work of jurisprudence, as widely read in America as in Britain, appeared in the same year as the Stamp Act. In it, Blackstone asserted, “The power and jurisdiction of Parliament [is so] transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds. It hath sovereign and uncontrollable authority in making, confirming, enlarging, restraining, abrogating, repealing reviving, and expounding of laws, concerning matters of all possible denominations--ecclesiastical, or temporal, civil, military, maritime, or criminal: this being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms.” If there were natural rights, there was no power above Parliament to define or protect them. This was the spirit of the Declaratory Act, and came close to a complete rejection of constitutionalism.

The Americans, on the other hand, adhered to seventeenth-century constitutionalism and rejected the notion of sovereignty altogether. Boston lawyer James Otis illustrated this when he argued against the Writs of Assistance in 1761. Writs of Assistance were general search warrants, which gave the King’s agents unlimited power to seek out violations of the customs laws. The writs ran in the King’s name, so had to be renewed when George III ascended the throne in 1760. Otis made the case that they were contrary to fundamental principles of justice and violated the rights of Englishmen. “It appears to me the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law-book,” Otis claimed. He described it as “a kind of power, the exercise of which in former periods of history cost one king of England his head and another his throne.”

Otis referred to a 1610 decision by Edward Coke the great common law judge and parliamentarian, a leader in the resistance against Stuart absolutism. “In many cases the common law will control the laws of Parliament, and sometimes it will declare them totally void, for when an act of the Parliament is contrary to the law and reason, or incompatible, or impossible to execute, the common law will control it and proceed to declare its nullity.” Otis’ appeal to natural law principles made an impression on another Massachusetts lawyer, John Adams. Though the Americans would appeal to natural rights only as a last resort, preferring to rely on the more concrete bases of their colonial charters and traditional rights as Englishmen, the law of Nature and of Nature’s God always lay behind their resistance to parliamentary sovereignty.

After the repeal of the Stamp Act, the British tried new taxes on imports, on the mistaken assumption (sowed in part by Benjamin Franklin) that the colonists would accept “external taxes.” The Americans refused to pay any duty whose aim was to raise revenue, imposed upon them “without their consent.” The British denied the colonists were being taxed without their consent. Colonists, they said, were represented “virtually” by every member of Parliament. Members of the House of Commons did not represent particular districts, constituencies, or electors; rather, each represented the whole Empire. Americans might not vote for members of Parliament, but neither did nine-tenths of Englishmen. The Americans rejected this concept of “virtual representation.” The interests of one part of England might be represented by a member of Parliament from another part of England, but no Englishman could fairly give the consent of colonists three thousand miles away in hugely different circumstances. This system might be satisfactory to the English, but the Americans were more accustomed to a system of “actual representation,” where the franchise was broad and representatives close to the voters. This is not to say that the colonists rejected the idea of virtual representation altogether: women, children, and propertyless males could be said to be virtually represented by colonial voters. But they had taken a step toward a more fully democratic idea of representation in their rejection of British policy.

Nor did the colonists seek representation in the British Parliament, where they would be outnumbered by British members, in addition to the difficulty of representation across an ocean that still required six weeks to cross at best. In the early stages of the imperial conflict, the Americans tried to limit parliamentary authority to particular, imperial ends—regulation of trade, most notably. This idea, known as the “federal theory of empire,” clashed with the British idea of parliamentary sovereignty, for sovereignty was by definition unlimited and indivisible. The federal theory posited the logically impossible situation of two sovereigns in the same space—an imperium in imperio, or empire within and empire. Thus, the Americans resorted to what was known as the “dominion theory of empire,” wherein their only connection to the British was through the King, to whom each colonial assembly was equal to the London Parliament. There was a logic to this theory, since all the colonial charters had been granted by the King, though historically Parliament had participated in colonial regulation and the Americans had accepted it. The dominion theory was a red flag to English Whigs, for it undermined parliamentary supremacy and might give the King new sources of power in the Empire. But George III remained firmly committed to parliamentary supremacy, and never responded to this temptation. The colonists persisted in this theory, eventually claiming that Parliament had never possessed any legitimate power over the colonies. They had submitted to parliamentary imperial regulations only as a matter of convenience and expediency, but never as a right. Thus the Declaration of Independence is addressed only to the King, and does not even mention Parliament by name.

Economic pressure from the colonies continued to limit British policy, and Parliament repealed all of the new duties except the one on tea by 1773. In that year the ministry, combining an effort to assist the East India Company with its attempt to raise colonial revenue, gave the company a monopoly on tea sales in the American colonies. Radicals in Boston dumped the company’s tea into Boston Harbor in the famous “Boston Tea Party” of December, 1773. Push now came to shove in a sustained way. Parliament responded to the Tea Party with a series of measures known as the Coercive or Intolerable Acts. Most important, they closed the Port of Boston, made General Thomas Gage the governor, and placed severe restrictions on colonial and local self-government.

Along with these acts, Parliament passed the Quebec Act, to organize the North American territory won from France in 1763. It included in the colony of Quebec all of the land north of the Ohio River. It provided no representative assembly (the French inhabitants had never had one), and allowed the colonists to support the Roman Catholic Church. It also continued French civil law, though it imposed the English common law of crimes. Though unrelated to the Coercive Acts, it appeared to the colonists as part of that punitive effort and a further step in the conspiracy to destroy their liberties. It touched the most passion-provoking of issues, religion. It evinced a pattern of continental absolutism, of “popery and arbitrary government.” In the colonial imagination, they were fighting the English Civil War or Glorious Revolution all over again, defending representative government and Protestantism. Many in the British government saw it likewise—the Massachusetts rebels being the very descendants of the republicans and Puritans who had decapitated Charles I.

But there was deep support for Massachusetts outside of the colony. In September, 1774, colonies sent delegates to the First Continental Congress. They rejected Pennsylvanian Joseph Galloway’s proposal for an explicit constitutional definition of the Empire. Galloway’s plan sketched a federal system, in which each colony would retain “its present constitution and powers of regulating and governing its own internal police.” For common, imperial matters, it envisioned a President General, appointed by the King, and a Grand Council, chosen by the colonial legislatures. Their body was to be “an inferior and distinct branch of the British legislature,” whose acts would require the assent of Parliament. Instead, the Congress endorsed the grievances of the Bostonians (the Suffolk Resolves), and adopted a continental statement of colonial complaints and rights. The Congress repeated the many grievances of the colonists and the grounds for their rights that had been developing over the past decade. They claimed a right to self-government, particularly consent to taxation, as a natural and God-given right, as their right as Englishmen, and explicitly stated in their colonial charters. In addition, Congress claimed that the toil and sacrifice of their ancestors, who had founded the colonies, gave them a title to self-rule. They complained of the statement of parliamentary sovereignty in the Declaratory Act, of the recent Intolerable Acts, the Quebec Act, and of the curtailment of legislative and judicial independence. But they abjured any desire for independence and claimed to act only in self-defense.

Even after armed conflict began in April, 1775, the Americans were reluctant to take the step to independence. In July the Second Continental Congress issued the “Declaration of the Causes and Necessity of Taking Up Arms,” while simultaneously appealing to the King in the “Olive Branch Petition,” on the belief that George III was being misled by wicked ministers. But the King and ministry were united to settle the controversy by force. Over the winter of 1775-76 a series of atrocities by British troops, together with the radical argument of Thomas Paine in his best-selling pamphlet, Common Sense, shifted American sentiment toward independence as well as toward republican government.

In the summer of 1776, realizing that they could not successfully defend their rights without foreign (particularly French) assistance, and that no foreign power would assist unless they declared independence, the Congress appointed a committee to draft a declaration. This document is the cornerstone of American national identity and the foundation of the Constitution. Thomas Jefferson, the principal draftsman of the declaration, claimed that he had written nothing original, but merely expressed “the common sense of the subject” among his contemporaries. In a sense, this was no undue modesty; the Declaration of Independence was largely a reprise and extension of earlier colonial statements. It is addressed to all mankind, and begins its argument with an appeal to the rights of man. In its most famous part, the second paragraph, it reiterates the theory of natural rights, largely from John Locke. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.” It asserts the right to revolution when a people suffer tyrannical government, and denounces “the present king of Great Britain” as such a tyrant.

The bulk of the Declaration, usually overlooked, is a list of specific grievances, complaints that the King has violated not only the natural rights of the colonists, but the particular, historical rights of Englishmen. Most of these had to do with the abuse of executive power by the King and his governors, subordinating the rights of colonial legislatures and judiciaries. In keeping with the Dominion Theory of Empire, the Declaration does not so much as mention Parliament by name, instead noting that the King “has combined with others to subject us to a jurisdiction foreign to our Constitution, and unacknowledged by our laws; giving his assent to their acts of pretended legislation.” Several acts of Parliament were then denounced, summarized in the Declaratory Act. It also called attention to concrete rights expressed in their charters, as well as “the circumstances of our emigration and settlement here,” the other commonly cited sources of colonial rights.

Next, the Declaration condemns the recent atrocities of the King’s armed forces— the burning of Norfolk, Virginia and Falmouth (today Portsmouth, Maine). The Declaration also denounced Virginia Governor Dunmore’s promise to slaves that they would gain their freedom if they rose up against their masters (euphemistically put, “He has excited domestic insurrections amongst us”), and the use of mercenaries and Indians—“the merciless Indian savages, whose known rule of warfare is an undistinguished destruction of all ages, sexes, and conditions.” Jefferson’s original draft of the Declaration contained a bold attack on the institution of slavery, attempting to blame the English government for imposing it on the colonists, but this was edited out by the Congress.

Finally, the Americans lament that their appeals to their erstwhile English brethren have gone unnoticed, and that the American people, now “free and independent states,” would regard the English “as we hold the rest of mankind, enemies in war, in peace, friends.” The Declaration of Independence was a kind of social contract for the American people, a statement of fundamental principles of right and justice. But it did not provide a form of government, nor answer the question of what the colonies’ relations to one another would be. It declared the creation of “one people,” yet announced them as “free and independent states.” The “imperial question” of the relationship of the colonies to Britain would now become the “federal question” of their relationship to one another.

The Continental Congress now directed the states to revise their constitutions in accord with their new condition of independence, and also began to consider a continental constitution. The years from 1776 to 1789 were the greatest constitution-making period in human history.

The starting point for the state constitution-makers was republicanism. Republicanism had a broad range of meanings, but at the fundamental constitutional level it meant a government that derived its powers solely from the people, without any aristocratic or monarchical elements. Eighteenth century political science regarded pure republics as unsound: they were prone to faction and demagoguery, volatile and ephemeral. As ancient models of the Greeks showed, they rapidly consumed themselves in civil war or became prey to foreign powers. The fatal problem of republics was that they depended on the virtue of the people—their willingness to sacrifice their private interests for the public good. But the bold step toward independence caused the Americans to undertake a new experiment in republican government. The English constitutional model of mixed government, composed of King, Lords, and Commons, was now denounced as the source of the corruption and oppression from which they had escaped. The flush of revolution convinced many Americans that they possessed the virtue that could make republican government succeed.

In accord with republican principles, states made their constitutions more responsive to the people. The most radical of them, Pennsylvania’s, did away with its upper house and relied on a unicameral legislature. They broadened the suffrage, lowering property qualifications. By the end of the century, Maryland became the first polity in history to provide universal male suffrage; even women (with property) could vote under New Jersey’s revolutionary constitution, which made no sex qualification. Annual elections would keep legislators in touch with the people, and legislatures were reapportioned to make representation more equal. Governors had fewer powers, being seen as monarchical. Pennsylvania’s constitution provided for a plural executive, a committee of delegates from each county. Rejecting the theory of “mixed government,” the state constitutions strove for “separation of powers,” wherein the executive would not influence legislation, for this was the mechanism of corruption in the English system. Not every state went as far as Pennsylvania—Connecticut and Rhode Island, for example, simply removed references to the King from their seventeenth century corporation charter and carried on as usual. But there was on the whole a democratic tendency in the revolutionary era.

Politics under the state constitutions confirmed many of the historical fears of republican government. The fundamental problem was that the legislatures possessed overwhelming power and began to act in an unrestrained fashion. As James Madison put it in Federalist 48, “The legislative department is everywhere extending the sphere of its authority and drawing all power into its impetuous vortex.” Legislatures were unchecked by the state constitutions, because they had written them themselves. Before the Massachusetts constitution of 1780, there was an imperfect sense that a constitution was a “higher law,” the work of the people, created outside of, and superior to, the legislature. In several cases where state judges attempted to protect rights against legislative encroachment—usually involving judicial process and jury trials—they were intimidated by overweening legislators. The most common abuse by legislative power involved property rights. The United States endured an economic depression after the War for Independence, and there was pressure from distressed debtors for relief. The legislatures responded with a variety of devices, inflationary paper money laws especially, that many regarded as violations of private, contractual rights and attempts to use force of numbers to redistribute the wealth. More generally, the laws of the states changed rapidly, sensitive to shifts in public opinion, and this further undermined the security of private rights.

At the same time, the national or continental government was even more defective. The Articles of Confederation were not ratified until 1781. While not completely feckless—it was able to arrange the Treaty of Paris in 1783 and the Northwest Ordinance in 1787—its main value was to provide an object lesson and experience for later constitution-makers. If the main defect of the state constitutions was that they were too close to the people, the Articles’ main weakness was that it was not connected to the people at all. In short, it was not a genuinely republican government, and therefore lacked the essential element of legitimacy. Rather, the Articles established what it called “a firm league of friendship” among the states. The document was entitled “Articles of Confederation and Perpetual Union,” implying unity, but was formed “between the states of New Hampshire, Massachusetts Bay, Rhode Island….,” emphasizing their independence. Article 2 stated quite clearly, “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States.”

The state legislatures chose and controlled the delegates to the Congress, and each state had equal voting power. The powers surrendered by the states and granted to Congress principally involved diplomacy, but there was no real basis for national power. The Congress lacked any revenue of its own; it could only request money from the states, and relied on the state to collect the requisitions. Its executive was amorphous; a committee of delegates had power to act when the whole Congress was not assembled. It provided for a complicated judicial process to settle disputes among states, but it was never used. Most important decisions required the assent of nine of thirteen states, and amendment required the unanimous consent of all state legislatures.

Consequently, paralysis usually characterized the government. The weakness of the Confederation made it impossible for the United States to “assume among the powers of the earth the separate and equal station to which the laws of Nature and of Nature’s God entitle them.” It was unable to pay its debts. It could not compel the British to fulfill their promises under the Treaty of Paris, in part because it could not compel the states to fulfill theirs. Nor could the Congress secure a commercial treaty with Britain, nor prevent Spain from using its control of the Mississippi River against the Untied States. It was similarly powerless to stop the states from discriminating against one another in commerce. In the winter of 1787, debtor farmers in the western part of Massachusetts broke out in rebellion (Shays’ Rebellion)—largely because the state constitution of 1780 did not produce the kind of legislative populism seen in other states—and the national government could render no assistance.

By this time there was considerable sentiment for serious constitutional reform. There was widespread consensus that the Articles needed strengthening for the sake of national unity and independence. Several states had already undertaken constitutional reforms: the Massachusetts constitution of 1780 provided an alternative to the radical republicanism of earlier constitutions. The devices of “mixed government,” called “checks and balances” in a republican setting, made a comeback. The value of bicameralism as a means of improving legislative deliberation and the utility of gubernatorial power also increased. In several states, judges attempted to hold legislatures to the written constitution, in cases that presaged judicial review. Massachusetts introduced the important feature of a special constitutional convention, a body of delegates elected by the people to draft the constitution, apart from the legislature, and a convention to ratify the document.

After an effort by several states to negotiate common rules for commerce on the Chesapeake Bay, the Continental Congress called for all of the states to send delegates to a Philadelphia Convention to devise “alterations and provisions [to the Articles] as shall… render the federal Constitution adequate to the exigencies of government and the preservation of the Union.” Twelve states (Rhode Island demurred) sent fifty-five delegates who began work in May of 1787.

The agenda was set by the Virginia delegation, which proposed a set of resolutions that would have radically consolidated national power. It included a bicameral legislature, in which representation in both houses would be apportioned according to population. It would have power “to legislate in all cases to which the separate states are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation; to negative all laws passed by the several states… and to call forth the force of the Union against any member of the union failing to fulfill its duty under the articles thereof.” It provided for a parliamentary executive, chosen by the legislature, and a council of revision, to include the executive and national judges, to review acts of Congress. It called for a higher authority, outside of the Congress, to enact future amendments, and proposed that the people in special conventions should ratify the amendments that they proposed.

Delegates from the less populous states knew that such a plan could never be accepted back home, and so made a counter-proposal, known as the New Jersey Plan. Rather than the sweeping grant of legislative power that the Virginians sought, it granted specific powers to the old Confederation, specifically that of raising revenue by tariffs. Most important, it would retain the equal power of states in the national legislature. The genuine desire of the small-state men for a real national government was evident in their sixth resolution, that “all acts of the United States in Congress… and all treaties made and ratified under the authority of the United states, shall be the supreme law of the respective states… and that the judiciary of the several states shall be bound thereby in their decision, any think in the respective laws of the individual states to the contrary notwithstanding,” and allowing the national executive to use armed force to compel recalcitrant states or individuals. This would be incorporated into the Constitution as the “supremacy clause,” one of the most important bases of national power.

The question of the structure of the national legislature provoked the widest disagreement at the convention. The populous states sought a legislature elected directly by the people, apportioned by population. The small states wanted what the Articles of Confederation provided, equal state representation chosen by the legislatures. The deadlock was broken by the Great Compromise. The House of Representatives reflected the wishes of the large states, being elected by the people according to population. The Senate was essentially the old Confederation Congress—equal state representation chosen by the state legislatures. This was the primary foundation of the Constitution as a federal system. With the lower house elected directly by the people, the new government was now genuinely republican, and thus promised to be more effective. Bicameralism would provide for more mature and deliberate consideration than in the annually elected state legislatures. Senators especially, with six-year terms and indirect election, would be insulated from public opinion. Moreover, the interests of the states would be protected by the upper chamber.

The Congress was granted a number of specific powers in Article I, section 8, including the power to tax and to regulate interstate commerce. Some were pointedly specific, such as the power “to provide for the punishment of counterfeiting the securities and current coin of the United States.” But it was also granted the power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers”—the so-called “elastic” or “necessary and proper” clause. The question of how strictly the enumerated powers should be read would be a crucial issue in the ratification debate, and for years thereafter. While certain powers were explicitly withheld from Congress in Article I, section 9, the implication of the document was that all powers not granted in the Constitution were withheld. The states, on the other hand, gave up specific powers in Article I, section 10—the usual ones having to do with foreign policy, but also the power to “make anything but gold and silver coin a tender in the payment of debts” and to “pass any law impairing the obligation of contracts,” in order to curtail state violations of property rights. Here the implication was that states reserved all powers not granted to Congress or foresworn by the states in the Constitution. In other words, the states remained general governments, with the “police power”—the general power to legislate on matters of safety, health, welfare, and morals. The national government’s powers were limited to the ends and objects specified in the Constitution. This would be reiterated explicitly in the Tenth Amendment.

Several specific policy matters produced compromises in the document. States wary of Congress’ power over imports and exports allowed it to impose tariffs by a simple majority vote, but won a prohibition on taxes on exports. Treaties required a two-thirds vote in the Senate for ratification. Slavery posed several moral and political problems for the convention. Antislavery men were reluctant to recognize the institution, and thus the words “slave” and “slavery” were not used in the Constitution. Slaves were referred to as “persons held to service or labor in one state, under the laws thereof.” Congress was forbidden to end the international slave trade for twenty years, a provision that was unamendable before then. The enumeration of slaves for purposes of representation and taxation posed another problem. Northerners would have liked to count them for taxation but not representation, while southerners would have liked to count them for representation but not taxation. In the end, five slaves were counted as three persons when representation in the House and direct taxes were apportioned. This provision greatly augmented the power of the slave states and did them no harm, since direct taxes were almost never levied--the southern states gained extra representation, but never paid extra taxes, on account of their slaves. Finally, the Constitution provided that fugitive slaves would be returned to their owners, although it did not specify how or by whom the return would take place. The antislavery framers of the Constitution believed that slavery was a declining institution, and that the problem would take care of itself. In the meantime, they made what compromises they must in order to keep the union together, lest the hope of liberty for anyone be lost.

The Constitution provided for a strong executive--a single president, with power to veto bills, make appointments, and issue pardons. He was to serve a four-year term, could be re-elected without limit, but could be impeached and removed by Congress. The chief problem regarding the office was the mode of selection. Thus Article II outlined a complex process where the president would be elected indirectly, by an electoral college, a body of men chosen however the state legislatures might direct. The college was also a federal institution, weighted to give more power to the smaller states. If anyone failed to garner a majority of electoral votes, the president would be chosen by the House of Representatives. This process was even more federalized than the electoral college, with each state casting one vote. And it was widely expected that, after George Washington, few men would be able to win wide enough support to be elected by the college, and that most would be chosen by the House. National political parties eventually made regular first-ballot elections the norm. The Constitution provided for a separate and independent judicial branch. It provided for a Supreme Court, and “such inferior courts as Congress may from time to time ordain and establish.” The justices and judges would be appointed by the President, with the approval of the Senate; they would enjoy life tenure “during good behavior,” and their salaries could not be reduced. Article III offered a potentially enormous grant of judicial power, defining the jurisdiction of the federal courts as extending “to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made under their authority,” including all controversies between citizens of different states. On the other hand, the composition of the lower courts was left entirely to Congress—it might ordain and establish none at all. The Constitution also narrowly limited the original jurisdiction of the only court that it required (the Supreme Court), and allowed Congress to control its appellate jurisdiction. There was thus a vast range between the potential power of the federal judiciary and the actual power that Congress might grant.

The convention also provided an amendment process. Two thirds of the Congress or two-thirds of the states could propose amendments, which would be ratified by three-fourths of the states, either by legislatures or by special conventions. All amendments turned out to be proposed by Congress, and all but one (the Twenty-First) ratified by the legislatures. This provision was particularly important because it allowed the advocates of the Constitution (the Federalists) to assuage their opponents (the Antifederalists) by promising that defects in the document could be amended. This was especially useful with regard to the Antifederalist complaint that the Constitution lacked a Bill of Rights.

When the convention finished its work in September, 1787, it submitted the document to the Confederation Congress. If there was any merit to the charge that the convention had acted illegally, writing a whole new Constitution instead of simply amending the Articles, it made little impression on the Congress whose powers the convention had allegedly usurped. The Congress submitted the document to the state legislatures, who had the option of calling for ratification conventions to approve it. Every state legislature but Rhode Island did so and all but one of these conventions (North Carolina) ratified the Constitution within a year.

The most serious complaint by the Antifederalists was that the United States was too vast a territory to be governed as a republic. Republics had to be small and relatively homogenous, with their governments close to the people. A country like the United States could only be ruled as an empire. If the Antifederalists had won this argument, the Constitution would have been defeated, for republicanism remained the touchstone of American politics in 1787. But James Madison explained that the size of America would actually improve republican government. In Federalist 10, Madison argued that the great defect of republics was faction, or self-seeking interest groups, and majority tyranny, as seen in many American states. Tyrannical majorities were more easily assembled in small settings; it would be much more difficult to put together a majority faction in a larger country. “Extend the sphere, and you take in a greater variety of parties and interests; you make it less probably that a majority of the whole will have a common motive to invade the rights of other citizens,” he wrote. “In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government.” Much in the same way that Madison saw religious pluralism preventing sectarian oppression, or in the way that Adam Smith saw self-interested economic behavior making everyone more prosperous, Madison argued that the vices of republicanism could be turned against themselves for the common good. And the American political system, if it could not dispense with the need for public virtue altogether, at least would depend on it to a less dangerous degree. Madison’s argument underscored the fact that America would be a modern, liberal, commercial republic.

In the Federalist Papers and other local venues of debate, the Federalists were able to convince the people that the Constitution would provide a government strong enough to protect rights, but not so strong as to overwhelm them. They also promised that the First Congress would propose a Bill of Rights to amend the Constitution. The Federalists on occasion had to resort to strong-arm tactics, as in getting the Pennsylvania legislature to call a ratification convention, and it is true that only a minority of American adults could vote for delegates to the conventions, but the United States Constitution was the most democratically debated and ratified national document in the history of the world to that point. For behind the debate were deeply held national principles that united Federalist and Antifederalist, and enabled the parties to work together after the ratification conflict. These principles had developed out of English seeds and grown in colonial soil before the Revolution. They flowered in the Declaration of Independence and state constitutions, and the Constitution is best understood as pruning and preserving them.

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• Douglas Adair, “That Politics May Be Reduced to a Science: David Hume, James Madison, and the Tenth Federalist,” Huntington Library Quarterly 20 (1957).
• Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era (1980).
• Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (1991).
• Charles M. Andrews, “The American Revolution: An Interpretation,” American Historical Review 31 (1926).
• Charles M. Andrews, The Colonial Background of the American Revolution: Four Essays in American Colonial History (1958).
• Hadley Arkes, Beyond the Constitution (1990).
• Bernard Bailyn, The Ideological Origins of the American Revolution (1967).
• Bernard Bailyn, “The Central Themes of the American Revolution,” in Essays on the American Revolution, ed. Stephen G. Kurtz and James H. Hutson (1973).
• Carl L. Becker, The Declaration of Independence (1922).
• Richard Beeman et al., eds., Beyond Confederation (1987).
• Daniel J. Boorstin, The Genius of American Politics (1953).
• Edward S. Corwin, “The Progress of Constitutional Theory Between the Declaration of Independence and the Meeting of the Philadelphia Convention,” American Historical Review 56(1969).
• Martin Diamond, “The Separation of Powers and the Mixed Regime,” Publius 8 (1978).
• John P. Diggins, The Lost Soul of American Politics: Virtue, Self-Interest, and the Foundations of Liberalism (1984).
• Stanley Elkins and Eric McKitrick, “The Founding Fathers: Young Men of the Revolution,” Political Science Quarterly 76 (1961).
• David F. Epstein, The Political Theory of ‘The Federalist’ (1984).
• Edward J. Erler, “The Problem of the Public Good in The Federalist,” Polity 12 (1980).
• Max Farrand, ed., The Records of the Federal Convention of 1787, 4 vols. (1911-37). Lawrence Henry Gipson, The British Empire Before the Revolution, 14 vols. (1936-38).
• Merrill Jensen, The American Revolution Within America (1974).
• Cecilia Kenyon, “Men of Little Faith,” William and Mary Quarterly 12 (1955).
• Ralph Lerner, the Thinking Revolutionary: Principle and Practice in the New Republic (1987).
• Michael Lienesch, New Order of the Ages: Time, The Constitution, and the Making of Modern American Political Thought (1988).
• Donald S. Lutz, Popular Consent and Popular Control: Whig Political Theory in the Early State Constitutions (1980).
• Pauline Maier, American Scripture: Making the Declaration of Independence (1997).
• Pauline Maier, From Resistance to Revolution: Colonial Radicals and the Development of American Opposition to Britain, 1765-76 (1972).
• Jackson Turner Main, The Antifederalists (1961).
• Frederick W. Marks III, Independence on Trial: Foreign Affairs and the Making of the Constitution (1973).
• Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (1985).
• Andrew C. McLaughlin, “The Background of American Federalism,” American Political Science Review 12 (1918).
• Andrew C. McLaughlin, The Confederation and the Constitution, 1781-89 (1905).
• Charles H. McIlwain, The American Revolution: A Constitutional Interpretation (1922).
• Edmund S. Morgan, The Birth of the Republic, revised ed. (1977).
• Richard B. Morris, The Forging of the Union, 1781-87 (1987).
• Charles F. Mullett, Fundamental Law and the American Revolution, 1760--76 (1933).
• Allan Nevins, The American States During and After the Revolution, 1775-89 (1924).
• Alison G. Olson, “Parliament, Empire, and Parliamentary Law, 1776,” in Three British Revolutions: 1641, 1688, and 1776, ed. J.G.A. Pocock (1980).
• Peter S. Onuf, Statehood and Union: A History of the Northwest Ordinance (1987).
• Thomas L. Pangle, The Spirit of Modern Republicanism: The Moral Vision of the American Founders and the Philosophy of Locke (1988).
• John Phillip Reid, The Constitutional History of the American Revolution, abridged ed. (1995).
• Jack N. Rakove, The Beginnings of National Politics: An Interpretive History of the Continental Congress (1979).
• John P. Roche, “The Founding Fathers: A Reform Caucus in Action,” American Political Science Review 55 (1961).
• M.J.C. Vile, Constitutionalism and the Separation of Powers, revised ed. (1998).
• Thomas G. West, Vindicating the Founders: Race, Class, Sex and Justice in the Origins of America (1997).
• Morton White, The Philosophy of the American Revolution (1978).
• Gordon S. Wood, The Radicalism of the American Revolution (1992).
• Gordon S. Wood, The Creation of the American Republic, 1776-87 (1969).
• Michael P. Zuckert, “Federalisms and the Founding,” Review of Politics 48 (1986).

IV: The Early National Period

The new government faced and adjusted to several major challenges through the first half of the nineteenth century. Almost simultaneous with the ratification of the Constitution, the French Revolution began. The twenty years of warfare generated by the revolution influenced American politics, finally drawing the United States into another war with Great Britain in 1812. At the same time, the domestic program of the Federalists sparked partisan controversy. After the often bitter political contentions of the 1790s, the US in 1800 was able to transfer power from one party to another. The new republic also provided an unprecedentedly strong and independent judiciary under Chief Justice John Marshall. Finally, the US developed the first mass democratic political system in world history, with nearly universal white male suffrage, together with a modern party organization to manage it. But slavery was the one issue that was beyond the political and constitutional capacity of the American to resolve peacefully.

When the First Congress convened in 1789, the Federalists kept their promise to propose a Bill of Rights as amendments to the Constitution. Though today most Americans regard the Bill of Rights as the shield of individual liberty, this was not the main concern of those who demanded the amendments. Antifederalists wanted a Bill of Rights was to preserve state power, not individual rights. Their chief concern was federalism. They were concerned less with the substance of rights than the procedural matter of who would define and regulate rights. James Madison proposed that the Bill of Rights apply to the states as well as to the federal government, but the Senate did away with this provision. Thus the First Amendment reads, “Congress shall make no law respecting an establishment of religion….” States were free to do so—Massachusetts maintained an established church until 1833. It was not until the 1920s, by way of the Fourteenth Amendment, that the Bill of Rights began to restrict the states. And some of its provisions, most notably the Second Amendment, have not been applied to the states. Since the federal government seldom abridged the rights enumerated in the Bill of Rights, they were of little constitutional significance until well into the twentieth century.

George Washington, elected unanimously as the first president, went a long way toward establishing the vigorous but limited executive envisioned by the Federalists. Washington took seriously the idea that the president should be above partisanship, and drew upon widespread admiration of him as the embodiment of republican virtue. He asserted presidential power over executive personnel, particularly in the removal of executive officers—a point upon which the Constitution was silent apart from impeachment. But Washington was on the whole deferential to the legislature, which showed itself jealous of its primary role in a republican constitutional system—after a long debate, the Congress decided that it would eschew monarchical titles and address the chief executive simply as “Mr. President.” He was more assertive in foreign policy, establishing the prerogative of the president to recognize foreign governments, to interpret treaty obligations, and to declare neutrality in the emerging wars of the French Revolution. He also defended the right of the president to maintain confidentiality in diplomatic negotiations—a custom later called “executive privilege.”

The principal opposition to the President arose from the plans of his Secretary of the Treasury, Alexander Hamilton. The Anglo-American tradition of keeping taxes close to the people was expressed in Congress’ requirement that the Treasury Department report to the legislature as well as to the president. Hamilton tried to use this connection as a means to act as Washington’s prime minister, to promote his plan of national economic development. Hamilton sought to develop the economy by establishing a national bank, funding the national debt and assuming state debts, a protective tariff, and infrastructure or “internal improvements.” He hoped to bind important economic interests to the new government and to strengthen national identity. His opponents, especially southern and states-rights men, objected that these policies—particularly a congressionally-chartered national bank—were beyond the powers granted by the Constitution. They feared that Hamilton sought to “influence” or corrupt the legislature in order to build up an urban-commercial elite, a parasitical “paper aristocracy,” at the expense of the independent yeomen farmers who alone possessed the virtue necessary for republican government. James Madison, Hamilton’s erstwhile nationalist ally, led the opposition in the House of Representatives, and Thomas Jefferson, Secretary of State, joined him. Their followers came to be known as “Republicans.” Hamilton was partially successful, but these issues of national mercantilism would continue to cause political and constitutional controversy for decades. Along with the partisan positions on the French Revolution—the Federalists favoring England and the Republicans France—Hamilton’s policies led Republicans to denounce the Federalists as monarchists, and the Federalists to accuse the Republicans of being Jacobins.

The crisis of the Federalist administration came during the term of John Adams, who had the confidence of neither the Jeffersonian opposition nor of Hamilton and his “high Federalist” allies. Adams did his best to keep the United States out of war with an increasingly hostile France, but the preparations that the Federalists made for war provoked a hostile public reaction. The most famous and constitutionally significant of these were the Alien and Sedition Acts, aimed at controlling the anti-administration views of pro-French elements in America and, more broadly, of the Jeffersonian Republicans. The Constitution gave Congress no power to punish seditious libel— speech or writing that brought the government into contempt or ridicule—the Jeffersonians argued; the Federalists claimed that there existed a common law of seditious libel, which the federal government could prosecute even without a statute. This was an alarming idea, for it suggested that Congress was not limited to the powers enumerated in Article I, section 8 of the Constitution, but might legislate on any matter of the common law. The Republicans also noted that the Sedition Act violated the First Amendment’s free speech and press provisions. But the Federalists interpreted “freedom of the press” to mean “no prior restraint”—that is, publications could not be censored, but slander and libel were punishable after publication. Moreover, the Federalists claimed that the act mitigated the common law of seditious libel, by making truth a defense against the charge, and allowing juries to determine guilt. President Adams had not sought but did sign the act, which was often vigorously enforced by Federalist prosecutors and judges.

Madison and Jefferson worked with the legislatures of Virginia and Kentucky to write protests against the acts, known as the Virginia and Kentucky Resolutions. Generally denouncing the Alien and Sedition Acts, the fundamental principle of the resolutions was that the Constitution was a compact among the states, not the work of the people of the United States. The states, not the federal government, were the ultimate arbiters when disputes arose about the extent of federal power. They declared that the states had the power to “interpose” against or “nullify” unconstitutional congressional acts, but did not specify how such action might be implemented. The first Kentucky Resolution noted that further abuses would “drive these states into revolution and blood,” and Jefferson privately sought an explicit threat to “sever ourselves from [the] union,” though Madison dissuaded him. However unpopular the Alien and Sedition Acts were, no other state legislature endorsed the Virginia and Kentucky Resolutions, and several condemned them.

Combined with new taxes to support a new army, the Sedition Act provided a platform for the Republicans in the election of 1800. They won large majorities in Congress, but the presidential election was very close. State legislatures still chose most electors and, while Jefferson probably would have won a popular-vote contest, the Republicans benefited from the extra electoral votes that the three-fifths clause gave to slave states, where the party was strongest. Moreover, the Republican electors gave an equal number of votes to Jefferson and Aaron Burr, which threw the election into the lame-duck Federalist House of Representatives. Regarding Jefferson as less radical than Burr, the House chose him. In 1804 the Twelfth Amendment provided that electors should cast separate ballots for President and Vice-President, making electoral college ties less likely.

Although intense partisan feelings led people to speak of the “revolution of 1800,” the transfer of power was not revolutionary at all. The Republicans brought to the capital a different constitutional emphasis—states-centered federalism, the state-compact theory of the union, legislative supremacy, strict construction of the Constitution—but did not change the nature of the government. Jefferson himself took pains to conciliate moderate Federalists—as he said in his inaugural address, “We are all Republicans; we are all Federalists.” Jefferson was a moderate Republican who wanted to put an end to partisan strife. Above all, circumstances and events led the Republicans to adopt many of the nationalist tactics of the Federalists.

While Jefferson managed Congress effectively in an informal manner as party leader, his public stance was deferential. He no longer appeared in person before Congress, and did not veto a single act of Congress. He removed few Federalist officeholders and, while the government retrenched taxing and spending, it did not dismantle the Federalist program altogether. Perhaps most important, Jefferson thwarted radical Republican attempts to remove Federalist judges and left the Federalist-dominated judiciary largely intact. The Republicans enjoyed continued electoral success, and the Federalist party never made a comeback.

Jefferson was fortunate to have taken office during a lull in the wars of the French Revolution, but Napoleon Bonaparte soon renewed conflict, and this posed great challenges to the Republicans. The first of these was Napoleon’s offer to sell the vast Louisiana Territory to the United States. Such an acquisition presented the opportunity to double the size of the county, to control the Mississippi River—of vital importance to western farmers—and to provide the space in which to build an agrarian-Jeffersonian “empire of liberty.” But the Constitution contained no provision for territorial purchase, and the impetuous French dictator might not wait for a constitutional amendment. Jefferson thus overcame his strict-constructionist scruples and agreed to a treaty in 1803.

With Great Britain and France at war again, the United States faced the problem of having the belligerents respect its trading rights as a neutral power. The Republicans attempted a number of economic sanctions to get them to do so. Toward the end of Jefferson’s second term, Congress enacted an embargo, forbidding Americans to export goods abroad. The Constitution gave Congress no power to embargo—indeed, the Federalists complained, a Constitution that forbade the taxation of exports could hardly allow for their prohibition. The policy was especially unpopular in New England, whose economy depended on foreign trade, and where it was regarded as a piece of spiteful sectional and partisan oppression. Jefferson regarded the New England merchants as devoid of republican virtue, more interested in profit than national honor, and resorted to treason prosecutions to enforce the act. Congress repealed it as Jefferson left office. His successor, James Madison, fared no better in getting the French and British to change their behavior, and in 1812 reluctantly asked Congress to declare war on Great Britain.

The war exposed many of the weaknesses of Republican policy, which had left the nation unprepared for war: largely bereft of an army and navy, unable to move the forces that it had, and with little money or credit (the Federalist Bank of the United Sates having expired in 1811). The nation was divided about the war, and opposition was intense in New England. State governments resisted the war and sent delegates to a convention at Hartford, Connecticut in 1814 to consider their grievances. Although there was informal talk of secession, the convention produced only a proposal for constitutional amendments that would limit the power of the South and West that northeasterners believed had led to a sectional war. While the proposals were arguably less disunionist than the Virginia and Kentucky Resolutions, they were seen as unpatriotic and led to the final destruction of the Federalist party.

Though the war went badly for the United States, Britain, exhausted by the European war, gave generous terms in the Treaty of Ghent to end hostilities. President Madison and the Republicans, realizing the dangerous effects of weak central government and full of postwar national enthusiasm, returned to Federalist policies that they had earlier denounced. Madison overcame his objections and agreed to a second Bank of the United States in 1816. Congress adopted the first protective tariff that year, to reduce America’s industrial dependency. But Madison drew the line at federally-sponsored internal improvements. And the ambitious and unbridled nationalism of John Quincy Adams, elected in 1824, caused a major political realignment and reassertion of states-rights principles, as the second Massachusetts president suffered the fate of his father.

The Supreme Court made important contributions to this postwar nationalism, and came into its own as a significant branch of the national government. The Constitution had provided for a separate, independent, and potentially quite powerful judiciary. Judges, appointed by the president and confirmed by the Senate, were to enjoy life tenure during good behavior, and could not have their salaries reduced while in office. The Constitution also gave the federal judiciary a vast grant of jurisdiction: “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and Treaties….” Indeed, some Antifederalists feared that the federal judiciary would help destroy state power. But this was not a serious objection to the Constitution. More common was the Anglo-American sense that courts were defenders of individual liberty against arbitrary government, as the common law courts had resisted Tudor-Stuart absolutism. Thus Alexander Hamilton was able to dismiss fear of judicial oppression in the Federalist, calling the judiciary “the least dangerous branch,” one that could never harm the liberties of the people—so long as it respected the distinction between law and politics.

In addition, the Constitution gave the judiciary a vast potential power; in fact its composition and jurisdiction were almost entirely under Congress’ control. The Constitution required only a Supreme Court, and limited its original jurisdiction to a few matters of little importance. The remainder of the federal judicial system would consist of “such inferior courts as the Congress may from time to time establish.” Congress also controlled the appellate jurisdiction of the Supreme Court. Thus, when the First Congress considered a judiciary act it was effectively writing a whole new Article III.

The Judiciary Act of 1789 went a long way toward establishing s strong national judiciary, but also made significant concessions to state power. It established a three-tier structure: a district court in each state, a Supreme Court of six justices, and an intermediate circuit court composed of district judges and Supreme Court justices together. Its most important provision was section 25, which allowed appeals of constitutional questions from the highest state court to federal courts. Without this provision, state judges could be the ultimate arbiters of federal questions, and there might be as many constitutional interpretations as there were states. On the other hand, the act shared jurisdiction between federal and state courts, particularly in small suits.

In its first decade the Supreme Court was not a very busy or prestigious institution. It carefully avoided involvement in political controversies, limiting itself to legal “cases and controversies” only. It declined, for example, to give advice to President Washington on international law, and to serve as arbiters for the claims of Revolutionary War veterans. It did hear challenges to acts of Congress (always upholding them), and enforced treaty obligations against state laws that confiscated British and Tory property or repudiated debts. But when a creditor won a suit against the state of Georgia in 1793, state interests proposed a constitutional amendment that prevented states from being sued in federal courts. But in time the federal courts found ways around the Eleventh, “sovereign immunity” amendment, ratified in 1795.

The federal judiciary became a political football after the election of 1800. Having lost control of the executive and legislative branches, the lame-duck Federalist Congress enacted a new judiciary act in March, 1801. The act remedied some legitimate defects in the system, such as relieving the Supreme Court justices of the arduous duty of “riding circuit.” It did this by creating sixteen new circuit-court judgeships, all of which were given to Federalists—the courts being “packed,” Republicans complained, with “midnight judges.” The act also reduced the size of the Supreme Court from six to five—ostensibly because of the reduced work load, but apparently to deprive President-elect Jefferson of his first appointment. Finally, it expanded the jurisdiction of the federal judiciary, ending the power-sharing arrangement with the state courts.

Republicans did not attempt to repeal the act until the end of the year. Federalists claimed that the repeal was unconstitutional, since the new judges had been appointed for life terms. But the Supreme Court, most notably new Chief Justice John Marshall, upheld the repeal. The judicial system essentially reverted to its 1789 form.

Chief Justice Marshall also deftly handled another politically sensitive case, in the first instance of the Supreme Court overturning an act of Congress. The lame-duck Federalist Congress had also enacted a law for the government of the District of Columbia, creating several justice of the peace offices. President Adams appointed William Marbury to the office and signed his commission, which was sealed by then-Secretary of State John Marshall. Marshall left it on his desk; the new administration never delivered it. Marbury then brought suit in the Supreme Court, as provided by section 13 of the Judiciary Act of 1789, for a writ of mandamus—a court order to an executive officer to do his duty—ordering the new Secretary of State, James Madison, to deliver the commission.

Marshall’s opinion made a strong statement of the Court’s power to interpret, as well as the power to order the executive to enforce, acts of Congress. Marbury was entitled to his commission, and it was the duty of the executive to deliver it. However, in a deft maneuver, Marshall concluded that the Court had no power to issue the mandamus, because Congress had no power to give the Court original jurisdiction to issue it. Article III of the Constitution strictly defined the Court’s original jurisdiction, and did not include such power. That is to say, section 13 of the Judiciary Act was unconstitutional.

These details of the case are important because Marbury v. Madison is a frequently misunderstood case. In the twentieth century it has been interpreted as the foundation of judicial review, given Marshall’s refusal to follow an act of Congress contrary to the Constitution. “It is emphatically the province and duty of the judicial department to say what the law is,” the Chief Justice said. But Marshall made no claim to supreme or exclusive judicial power over constitutional questions. It was widely understood that the Supreme Court would necessarily have to review acts of Congress, but it was expected that, as in Marbury, they would be cases of a peculiarly judicial nature, involving judicial procedure and jurisdiction especially. In this case, Marshall was declining to exercise a power given to the Court; in other state cases, courts reacted to legislative encroachments on the judicial power. More controversial was Marshall’s threat to compel executive officers to enforce the law—the step that his adroit opinion avoided. The Supreme Court did not strike down another act of Congress until the Dred Scott case in 1857, which had disastrous consequences. Nor were any significant acts of Congress overturned until the end of the nineteenth century. Recent scholarship has cast doubt on the view that the pedigree of modern judicial activism is not traceable to John Marshall.

Marshall’s moderation in Marbury was answered by Jefferson’s frustration of radical Republican attempts to impeach Federalist judges. Led by John Randolph of Virginia, the Republicans believed that impeachment was a legitimate political weapon to keep the judiciary responsible to the sovereign people. Moderates countered that it could only be employed in cases of criminal conduct—that the Constitution’s standard of “treason, bribery, or other high crimes and misdemeanors” was equivalent to indictable offenses. The radicals were able to impeach and remove district judge John Pickering, but only because he was obviously habitually drunk and insane. Supreme Court Justice Samuel Chase, on the other hand, was accused of political intemperance and partisan bias. Due to a political falling out between Jefferson and Randolph, the President used his influence to win acquittal for Chase, which put an end to the impeachment campaign.

The outcome of these judicial skirmishes was political domination of the moderate Republicans and independence and stability for the federal judiciary. Jefferson made three appointments to the Supreme Court and James Madison two, all of whom were won over to John Marshall’s side. From 1811 to 1823 there were no new appointments to the Court, allowing Marshall to consolidate his control of the institution, and to move ahead to augment political nationalism in the postwar years.

The Marshall Court’s most important legacy was upholding the supremacy clause of the Constitution: that “This Constitution, and the laws of the United States… shall be the supreme law of the land… any thing in the constitution or laws of any state to the contrary notwithstanding.” Even before 1801, the Court had forced states to abide by federal treaty obligations, and in 1809 the Marshall Court vindicated federal maritime jurisdiction over state interference. The next year, Marshall began to make vigorous use of the contracts clause—Article I, section 10’s command that “No state shall… pass any law… impairing the obligation of contracts.” The Georgia legislature, almost completely bribed, had sold a vast amount of state land to real estate speculators in the notorious “Yazoo land fraud” of the 1790s. A subsequent legislature revoked the sale. When third-party purchasers sued to regain it, the Supreme Court sided with them in the 1810 case of Fletcher v. Peck. Marshall ruled that, albeit tainted by fraud, the sale was a valid contract that a state could not abridge. The decision was characteristic of Marshall Court decisions in its concern for private property rights and the effect it had of encouraging entrepreneurship. The Court later applied the contract clause to state grants of tax-exemption, interstate compacts and, most important, corporation charters. The Court helped to development of the idea of a private corporation, since corporations had traditionally been regarded as public bodies. In one of the Marshall Court’s most famous decisions, it prevented the state of New Hampshire from taking over Dartmouth College, interpreting the college’s 1769 royal charter as a contract. The Court was also largely able to prevent states from reviving the kind of debtor-relief laws that plagued the Confederacy in the 1780s.

The Marshall Court’s most important decision was probably McCulloch v. Maryland (1819), sustaining the Second Bank of the United States against Maryland’s attempt to tax it out of existence. Marshall emphasized that the American Constitution was the act of the sovereign people, rather than a compact among sovereign states. He admitted that the people had empowered government at two levels, and that the national government was one of limited, enumerated powers. But within its sphere of delegated powers, it was supreme. While the power to charter a bank was not among the enumerated powers, Marshall claimed that the Constitution, especially the necessary-and-proper clause, allowed for implied powers. A Constitution could not provide a specific provision for every possible contingency of the future, he said. It could only mark the general purposes of government, and must be read broadly.

Marshall also began to give strength to the Constitution’s grant of power to Congress to “regulate commerce… among the several states.” In 1824 he struck down a New York monopoly grant on Hudson River steamboat traffic, as conflicting with a federal coasting act. He argued for a broad definition of “commerce.” “Commerce, undoubtedly, is traffic, but it is something more: it is intercourse,” he said. Similarly, the Court struck down a Maryland law that discriminated against out-of-state importers. Here, too, the Court promoted a national free market.

Marshall had established important precedents in a broad range of cases. The Court almost always spoke unanimously, and usually through the Chief Justice, who dissented in only one important case. As Marshall recognized that postwar patriotism would sustain his defense of federal power, so he restrained himself when the Jacksonian states-rights reaction set in. In 1829 the Court recognized a “dormant commerce power”—that states could affect interstate commerce in the absence of federal legislation. It also ruled that corporate charters did not give their holders extraordinary privileges such as tax exemption. Finally, the Court reaffirmed the fact that the Bill of Rights did not limit state power.

Andrew Jackson’s 1828 election ushered in a new period in American political history. It marked the movement away from constitutional nationalism and toward a states-rights federalism, weakening the power of the central government, and culminating in secession and civil war. It also brought forth the rise of modern political parties. Nearly all of the restrictions on white male suffrage were gone by the 1820s, and the principle of unfettered majority rule was ascendant.

Whereas the founding generation denounced political parties as “factions” and threats to republican government, the antebellum generation came to accept and embrace them as safeguards to constitutional government. They were useful institutions in organizing and communicating with the mass of new voters. They also helped to make American politics less extreme and ideological, drawing people’s attention away from divisive issues like slavery, and preventing or controlling the personal ambitions of politicians. Martin Van Buren in particular espoused the value of permanent, intersectional party organization, in the aftermath of the 1820 crisis over slavery in Missouri, and the heated, disorganized presidential election of 1824. Voter participation was never higher than in the period from the 1840s to the 1880s. But there was a price to be paid for the party system. They were not able to deal with morally charged issues like slavery, and tended to make partisan power an end in itself. People worked for their parties for the socioeconomic benefits that political power conferred—most obviously in government employment and “patronage.”

The Jacksonian Democratic party was in large measure the successor to the Jeffersonian Republican party. It was predominantly southern and western, and composed largely of peripheral ethnic and religious groups (other than blacks), including the large numbers of new immigrants who came to America after the end of the wars of the French Revolution. The party believed in the separation of church and state, and generally frowned on government interference in cultural and moral matters. It believed that the states rather than the national government ought to guide economic development, though radical Jacksonians were laissez-faire libertarians. The Democrats differed from the old Republicans in their acceptance of an active executive role. Andrew Jackson was a vigorous president, who believed that, as the only officer elected by the entire people, he embodied the popular will.

These party positions, particularly the energetic executive, gave rise to an opposition party, the Whigs. The Whigs followed the Federalists as constitutional nationalists. The party was strongest in the northeast and was composed of the “core” ethno-cultural groups—primarily British Protestants, but also blacks where they could vote. The Whigs embraced a strong central government, and advocated the Hamiltonian policy of national mercantilism. They tended to be more censorious than the Democrats, and were willing to use government power to impose cultural and moral norms. They reacted strongly to Jackson’s use of executive power, taking the name “Whig” as opponents of the man they called “King Andrew the First.”

The Democrats generally devolved government functions to the states. The federal budget surplus was simply distributed to the states, despite the doubtful power of Congress to do this under the Constitution. Jackson similarly allowed the states to take over Indian policy, allowing Georgia to oust the Cherokees. In this conflict, the Supreme Court denied that Indians were citizens who could sue in federal courts, defining them as “domestic dependent nations.” In a subsequent case the Court held that Georgia could not exercise political power in Cherokee lands (Georgia had prosecuted white missionaries for preaching in Indian territory without the state’s permission), but Georgia ignored the Court. The issue was resolved politically before a final confrontation between the President and the Chief Justice.

The most significant assault on national power came in Jackson’s “war” against the Second Bank of the United States. The nascent Whigs moved to renew the charter of the bank in 1832, hoping to make an election issue of it. In a blistering veto, composed by his attorney general and future Chief Justice, Roger B. Taney, Jackson vetoed the bill. Denying that the Supreme Court’s decision in the McCulloch case settled the issue of the constitutionality of the bank, Jackson asserted the equal right of each branch of the federal government to interpret the Constitution. He also defended the participation of the president in legislation and policy-making. The message also contained a forceful presentation of Democratic socioeconomic views. His dander up, Jackson next proposed to punish the Bank by removing the funds of the United States from the Bank, despite the fact that the government may have been legally obliged to maintain them. He had to fire two Secretaries of the Treasury who refused to withdraw the money, finally installing Taney, who carried out his orders. This led the Senate to “censure” the President, which Jackson regarded as being an unconstitutional act. (When Democrats regained control of the Senate, the resolution of censure was “expunged” from the record.) But Jackson was easily re-elected in 1832.

But Jackson’s nationalist spirit was kindled by South Carolina attempt to “nullify” the protective tariff. John C. Calhoun, who had been a strongly nationalist Secretary of War and Jackson’s first-term Vice-President, led the effort to force the government to reduce the tariff. Based on state-sovereignty and state-compact theories of the Union, Calhoun argued that the states had the power to suspend the operation of federal laws that were beyond the power of Congress to enact. If the other members of the Union chose, they could amend the Constitution to give Congress such power, but the nullifying state had the final option to secede from the Union. When a special popular convention voted to nullify the tariff in 1832, Jackson responded forcefully. He defended the popular sovereignty view of the Union, declaring that the Constitution formed a genuine government, not a league of sovereign states. He warned the South Carolinians that “Disunion by armed force is treason,” and asked Congress for a “Force Act” to enable him to suppress rebellion. But so ardent was Jackson’s response that moderates began to be as concerned about the danger of executive power as they were about the nullification threat. Jackson ended up having to accept a compromise brokered by his political opponent, Henry Clay, in which the tariff would be reduced over the course of a decade. South Carolina simply repealed its ordinance of secession, but did not repudiate the doctrine itself.

In his second term, Jacksonians took control of the Supreme Court. Chief Justice John Marshall died in 1835, and Jackson appointed Roger B. Taney to succeed him. Taney had been rejected by the Senate when appointed to an associate justice seat the previous year, but was now confirmed. Jackson and his successor, Martin Van Buren, appointed every member of the Supreme Court except for Joseph Story, the lone survivor of the Marshall Court. While nervous nationalists anticipated a judicial revolution, the Taney Court most often continued Marshall Court precedents. There was sometimes a subtle shift toward the states in federalism questions, and the Taney Court was marked by plurality rather than unanimity in its opinions. But the Court was finally polarized and wracked by the slavery issue, and Taney’s decision in the Dred Scott case has indelibly tarnished his otherwise distinguished career.

In its first term, 1837, the Taney Court signaled a change of emphasis. It overturned a Marshall Court decision that prevented states from issuing paper money, by allowing state-chartered banks to do so. In the term’s most important decision, the Charles River Bridge case, the Court held that corporation charters did not give their holders implied monopoly privileges. In this case, it allowed Massachusetts to charter a new bridge across the Charles River, despite the fact that it would reduce the value of the first bridge company’s charter. “While the rights of private property are sacredly guarded,” Taney wrote, “we must not forget that the community also have rights, and that the happiness and well being of every citizen depends on their faithful preservation.” Although Whigs feared that the decision was the opening of a democratic assault on property rights, an invitation for popular majorities to dispossess minorities, it was not that at all. The decision gave impetus to new, innovative entrepreneurship, in keeping with the “creative destruction” typical of capitalist economies.

The Taney Court showed its sympathy to economic enterprise in other areas. It prevented states from enacting debtor-relief legislation that impaired contracts, and prevented municipalities from repudiating bond issues. It also gave corporations some of the rights of “citizens” under the Constitution—especially access to federal courts, which were generally more pro-business than state courts. The Court also tried to revive the idea of a federal common law in commercial matters, but did not succeed in fashioning a uniform national commercial code. Rival federal and state business law remained a problem. These cases were indicative of the Taney Court in that it was generally in favor of states rights, but also exercised federal judicial power. It was something of a paradox that the Taney Court helped to centralize the American market economy at the same time that political and constitutional power was decentralizing. The antebellum political and constitutional system ultimately ran aground on the shoals of slavery.

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• Lance Banning, “Republican Ideology and the Triumph of the Constitution,” WMQ 31 (1974).
• Clinton L. Rossiter, Alexander Hami