The Constitution of the United States / A Brief Study of the Genesis, Formulation and Political Philosophy of the Constitution

by James M. Beck

All this developed in the colonists a powerful sense of constitutional morality, and its pertinency to my present theme lies in the fact that when each of the thirteen colonies became, at the conclusion of the War of Independence, a separate and independent nation, they were more concerned, in establishing a central government, to limit its authority and to maintain local self-government than they were to give to the new-born nation the powers which it needed. They carried their constitutionalism to extremes, which nearly made a strong and efficient central government an impossibility.

Nothing was less desired by them than a unified government. It was destined to be wrung from their hard necessities. The Constitution was the reflex action of two opposing tendencies, the one the imperative need of an efficient central government, and the other the passionate attachment to local self-rule. Co-operation between the colonies had been a matter of long discussion and earnest debate, and primarily resulted from the necessity of defence against a common foe the French in Canada, and the Indians of the forest. In 1643 four of the New England colonies united in a league to defend themselves. In 1693 William Penn made the first suggestion for a union of all the colonies. In 1734 a council was held at Albany at the instance of the Crown to provide the means for the defence against France in Canada, and it was then that Franklin submitted the first concrete form for a union of the colonies into a permanent alliance. It was in advance of the times, for, conservative as it was, it was unfortunately opposed both by the Crown and the colonies themselves.

The time was not ripe for any such union, and the reason was apparent. The colonies differed very much in the character of their populations, in the nature of their economic interests, and in their political antecedents. They were not wholly of the English race. Many nations in Europe had already contributed to the population. For example, New York was partly Dutch, and in Pennsylvania there was a considerable element of the Swedes, Germans, and Swiss. Moreover, the colonists were as widely separated from each other, measured by the facilities of locomotion, as are the most remote nations of the world to-day. Only a few men ever found occasion to leave their colony to journey to another, and most men never left, from birth to death, the community in which they lived. Outside of the few scattered communities in the different colonies there was an almost unbroken wilderness, with few wagon roads and in places only a bridle path. The only methods of communication were the letters and still fewer newspapers, which were carried by post riders often through an almost trackless wilderness.

Obviously, a working government could not easily be constituted between peoples of different religions, races, and economic interests, who, for the most part, never met each other face to face and with whom frequent communication was impossible.

The differences between the colonies and the mother-country with respect to internal taxation slowly developed into an issue of constitutionalism rather than of legislative policy. As in England, the immediate question affected the power of the Crown to give to the customs inspectors the power to make general searches and seizures, to enforce the navigation laws. In 1761 James Otis, of Massachusetts, made a fateful speech before the colonial legislature, in which, asserting the illegality of the search warrants on the ground that they violated the constitutional rights of Englishmen to protection in their own homes, he asserted that Acts of Parliament which violated the sanctity of the home were void and that, more specifically, they violated the charter granted to Massachusetts. Asserting the doctrine which at that time was the doctrine of the English common law, as stated by Coke and three other Chief Justices, he said:

"To say the parliament is absolute and arbitrary is a contradiction. The Parliament cannot make two and two five. Omnipotency cannot do it…. Parliaments are in all cases to declare what is for the good of the whole; but it is not the declaration of parliament that makes it so: there must be in every instance a higher authority, viz., GOD. Should an Act of Parliament be against any of His natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity and justice, and consequently void; and so it would be adjudged by the Parliament itself, when convinced of their mistake."

It is a curious fact that in the reaction from the tyranny of the Stuarts your country abandoned this principle of the common law by substituting for the omnipotence of the Crown the omnipotence of Parliament, while in my country the somewhat vague and unworkable principle of the common law, which gave the judiciary the power to invalidate an act of the legislature, when against natural reason and justice, was developed into the great principle, without which institutions in an heterogeneous and widely scattered democracy would be unworkable, namely that the powers of government are strictly defined, and that neither the executive, the legislative, nor the judicial departments of the government can go beyond the precise limits established by the fundamental law. Like the common law, the Constitution was thus the result of a slow evolution. Mr. Gladstone, in his oft-quoted remark, gave an erroneous impression when he said:

"As the British Constitution is the most subtle organism which has proceeded from progressive history, so the American Constitution is the most wonderful work ever struck off, at a given time by the brain and purpose of man."

This assumes that the Constitution sprang, like Minerva, armed cap-à-pie, from the brain of the American people, whereas it was as much the result of a slow, laborious, and painful evolution as was the British Constitution. Probably Gladstone so understood the development of the American Constitution and recognized that its framing was only the culmination of an evolution of many years.

When the constitutional struggle between the colonies and the Parliament became acute, the necessity of a union for a common defence became imperative. As early as July, 1773, Franklin recommended the "convening of a General Congress" so that the colonies would act together. His suggestion was introduced in the Virginia House of Burgesses in May, 1774, and as a result there met in Philadelphia on September 5 of that year the first Continental Congress, styled by themselves: "The Delegates appointed by the Good People of these Colonies." Nothing was further from their purpose than to form a central government or to separate from England. This Congress only met as a conference of representatives of the colonies to defend what they conceived to be their constitutional rights.