III
American constitutionalism was derived, historically,
from the views of the
English common law lawyers
and judges, and the natural law, social contract
phi-
losophers. During the period of
colonial tutelage, the
American colonists, in their perennial disputes with
the
government in London, looked for protection of what
they regarded
as their rights in the colonial charters,
thus forming the habit of
appealing to a higher law
stated in documents. As the colonists moved
from
protest to revolution, American revolutionary doctrine
was, on
the whole, in line with English philosophy and
historical precedents. Those
who articulated the polit-
ical theory of the
revolutionary movement did not even
claim that their ideas were original.
On the contrary,
speaking of “Revolutionary
principles,” John Adams
declared that “they are the
principles of Aristotle and
Plato; of Livy and Cicero; and Sydney,
Harrington and
Locke; the principles of nature and eternal reason; the
principles on which the whole government over us now
stands”
(Works, IV, 15). It is, of course, wholly under-
standable that the leaders of a
revolution should appeal
to familiar principles. The ideas of natural law and
social
compact spelled out in the Declaration of Inde-
pendence found wide acceptance among the people
precisely
because they were thoroughly familiar ideas.
The keystone of American constitutionalism has been
the written national
Constitution of 1787, for this
document is deeply rooted in a complex
mythology
which makes the American higher law doctrine truly
meaningful and effective. To begin with, the Consti-
tution was drafted in a special way, by a
convention
of delegates selected for this one purpose, and ratified
in
a special way, by conventions selected for this single
function in the
states. This is a far cry from the ordinary
process of national
legislation, which is in the hands
of Congress and the President. In
addition, there is a
special method of amending the Constitution, by
an
extraordinary two-thirds vote of Congress plus ap-
proval by three-fourths of the states, which is alto-
gether different and more complicated
than the
method available for amending legislation. These spe-
cial procedures have the effect of
highlighting the
distinction between constitutional law and statute
law.
Other provisions of the Constitution underscore the
supremacy of
the former over the latter.
Thus the preamble recites the fact that “We the
People of the
United States... do ordain and establish
this Constitution for the United
States of America.”
This is consistent with the widely accepted
notion that
the people are the true and original source of all gov-
ernmental authority, that government is
their agent,
not their master, that government is based on the
popular
will. In addition, Article VI declares that this
Constitution
“shall be the supreme Law of the Land,”
and goes on
to say that “the Judges in every State shall
be bound thereby,
any thing in the Constitution or
Laws of any State to the Contrary
notwithstanding,”
and provides that all national and state
officials must
take an oath or affirmation to support this
Constitution.
Furthermore, all civil officers of the United States
are,
under the terms of Article II, Section 4, subject to
impeachment
if they betray the people's trust.
Finally, the Constitution achieves viability as a
higher law through the
practice of judicial review,
which means that the judges, and ultimately
the Jus-
tices of the United States Supreme
Court, have the
power to refuse to enforce legislative or executive
acts
found to be contrary to the Constitution. While the
Constitution
does not provide for judicial review in
clear and unequivocal language, it
was established
early in the history of the document as a natural out-
growth of higher law doctrine and colonial
experience.
That courts have the power of judicial review was first
established in the jurisprudence of the United States
Supreme Court, in
1803, by Chief Justice John Marshall
in the celebrated case of Marbury v. Madison
(1 Cranch
137). For Marshall the choice before the Court was
a simple
one: either the Constitution controls any
legislative act repugnant to it,
or, in the alternative,
the legislature may change the Constitution by
ordi-
nary legislation. There is, he
insisted, no middle ground
between these alternatives.
The constitution is either a superior paramount law, un-
changeable by ordinary means, or it is on a level
with
ordinary legislative acts, and, like other acts, is alterable
when the legislature shall please to alter it. If the former
part of
the alternative be true, then a legislative act contrary
to the
constitution is now law: if the latter part be true,
then written
constitutions are absurd attempts, on the part
of the people, to limit
a power in its own nature illimitable.
John Marshall maintained that a written Constitution
is intended to serve as
the nation's “fundamental and
paramount” law. He went
on to say that
it is emphatically the province and duty of the judicial
department to
say what the law is. Those who apply the
law to particular cases, must
of necessity expound and
interpret that rule. If two laws conflict with
each other,
the courts must decide on the operation of each. So if
a
law be in opposition to the constitution; if both the law
and
the constitution apply to a particular case, so that the
court must
either decide that case conformably to the law,
disregarding the
constitution; or conformably to the consti-
tution, disregarding the law; the court must determine
which
of these conflicting rules governs the case. This is
of the very
essence of judicial duty. If, then, the courts are
to regard the
constitution, and the constitution is superior
to any ordinary act of
the legislature, the constitution, and
not such ordinary act, must
govern the case to which they
both apply.
However the cogency of this reasoning may be chal-
lenged—and there have been challenges—this
aspect
of the Constitution as judicially-enforceable higher law
has
prevailed in subsequent American history. Judicial
review by an independent
judiciary, that is, a judiciary
independent of the political branches of
the govern-
ment, is an indispensable element
of American consti-
tutionalism.
This aspect of constitutionalism has been stated and
restated by many
members of the United States Su-
preme Court.
Thus, in the landmark case of ex parte
Milligan (4 Wall. 2), decided in 1866, the point was
made that
the Constitution is the supreme law of the
land even in time of war. In
this case, Justice Davis
said:
The Constitution of the United States is a law for rulers
and
people, equally in war and in peace, and covers with
the shield of
its protection all classes of men, at all times,
and under all
circumstances. No doctrine, involving more
pernicious consequences,
was ever invented by the wit of
man than that any of its provisions can be suspended
during
any of the great exigencies of government. Such a
doctrine
leads directly to anarchy or despotism...
(4 Wall. 120).
The nature of the theory of constitutionalism was
explained by Chief Justice
Hughes in De Jonge v.
Oregon (299 U.S. 353, 365),
decided in 1937, in the
following language:
The greater the importance of safeguarding the community
from
incitements to the overthrow of our institutions by
force and violence,
the more imperative is the need to
preserve inviolate the
constitutional rights of free speech,
free press and free assembly in
order to maintain the oppor-
tunity for
free political discussion, to the end that govern-
ment may be responsive to the will of the people
and that
changes, if desired, may be obtained by peaceful means.
Therein lies the security of the Republic, the very founda-
tion of constitutional government.
The concept of constitutionalism was spelled out
from a different angle of
vision by Justice Jackson in
the Flag Salute Case of 1943, West Virginia State Board
of Education v. Barnette
(319 U.S. 624, 638), where
he wrote:
The very purpose of a Bill of Rights was to withdraw certain
subjects
from the vicissitudes of political controversy, to
place them beyond
the reach of majorities and officials and
to establish them as legal
principles to be applied by the
courts. One's right to life, liberty,
and property, to free
speech, a free press, freedom of worship and
assembly, and
other fundamental rights may not be submitted to
vote;
they depend on the outcome of no elections.
This statement goes to the very heart of the American
concept of
constitutionalism, that the constitution is
a fundamental written law
superior in obligation to
all other forms of law. Indeed, there is a
standard for
measuring the justness of governmental acts which is
not
only binding upon all agents of the government,
but which is independent
even of the will of the current
popular majority. While the American system
is com-
mitted to majority rule as being
preferable to rule by
elites or by divine right, it is also committed to
the
proposition that government must be righteous and
just, in spite
of majority rule. These objectives are
sought through a variety of devices,
including judicial
review by an independent judiciary, an enforceable
Bill
of Rights, the guaranty of equality before the law, the
diffusion
of governmental power through territorial
federalism and functional
separation of powers, checks
and balances, and the subordination of
military to civil
authority. The government is obliged to observe the
fundamental law, and the Constitution cannot be
changed except in some
special way.
American constitutionalism has been remarkably
successful, if success is
measured by such criteria as
longevity and consensus. The American Constitution
is the
oldest written national constitution in service
today, and mere survival is
a benchmark of success in
the difficult, complex world of government. Further-
more, age alone confers
respectability, although the
veneration of the United States Constitution
is attrib-
utable to many other sources.
Derived from the solid
authority of “We the People,”
it was drafted by a
convention which included many of the nation's
most
revered national heroes. It was not imposed upon the
people by
outside authority, but was, rather, an act
of free will. In an age which
believed that only a social
contract created legitimate government, the
Consti-
tution, as a written document,
was regarded from its
inception as the very model of what a soundly con-
ceived social contract should say.
The success of the American economy has been tied
in with the success of the
Constitution, the one inter-
acting with the
other. Above all, American consti-
tutionalism has succeeded because it has been sup-
ported by a general popular consensus. This does not
mean that the people have been in agreement on
everything, since such
agreement has never existed
anywhere. But it does mean that there has been
general
acceptance of basic institutions and procedures that
matter
most, and that have the potentiality of becom-
ing the sort of issues that men fight about. As a bare
minimum,
consensus as the underpinning of consti-
tutionalism is possible only if there is very wide agree-
ment on such vital matters as the regime
itself, the
form of government, the basic methods for making and
unmaking policy decisions, and the fundamental goals
of the society.
