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.

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).

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).

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).