The Online Library of Liberty

A project of Liberty Fund, Inc.

• About the Author
• Preface
• Part 1: The Constitution’s Deep Roots
• Points to Remember
• The Meaning of Constitutional Government
• The Lamp of Experience
• The Constitutions of Antiquity
• English Origins of America’s Constitution
• The Growth of Parliament
• The Challenge of Parliamentary Supremacy
• The Common Law Tradition
• The Republican Tradition and the Struggle For Constitutional Liberty
• The Influence of Continental Thinkers
• The Education of the Founders
• The French and American Revolutions Compared
• Appendix A: Relevant Chapters of Magna Charta (1215)
• Appendix B: Petition of Right (1628)
• Appendix C: The English Bill of Rights (1689) an Act For Declaring the Rights and Liberties of the Subject, and Settling the Succession of the Crown.
• Part 2: America’s First Constitutions and Declarations of Rights
• Points to Remember
• Colonial Governments
• Relations With Great Britain
• Local Government In the Colonies
• Civil Liberties In the Colonies
• The Movement Toward Independence
• The Declaration of Independence
• The Rights Proclaimed
• The First State Constitutions, 1776–1783
• The Articles of Confederation
• Appendix A: the Mayflower Compact
• Appendix B: Fundamental Orders of Connecticut
• Appendix C: Declaration and Resolves of the First Continental Congress
• Appendix D: Declaration of the Causes and Necessity of Taking Up Arms
• Appendix E: the Declaration of Independence (1776)
• Appendix F: Virginia Bill of Rights
• Appendix G: Thoughts On Government
• Appendix H: Massachusetts Constitution of 1780
• Appendix I: Articles of Confederation (1778)
• Part 3: The Achievement of the Philadelphia Convention
• Points to Remember
• The Problems of the Convention
• The Delegates to the Convention
• A Wide Range of Talents
• Plans and Progress At Philadelphia
• The Meaning of “federal”
• The Virginia Plan: a Supreme National Government
• Hamilton’s Concept of a Unified America
• The New Jersey Plan:checks Upon Central Power
• The Benefits of Compromise
• Compromise and Consensus
• Appendix A: Virginia Plan
• Appendix B: New Jersey Plan
• Appendix C: Constitution of the United States of America (1787)
• Part 4: Basic Constitutional Concepts: Federalism, Separation of Powers, and Rule of Law
• Points to Remember
• A.: Federalism
• Powers Delegated to Congress
• Powers Denied to Congress
• Powers Denied to the States
• The Division of Powers
• The Supremacy Clause
• National and State Obligations
• Obligations of the National Government to the States
• Obligations of the States to the National Government
• Obligations of the States to Each Other
• The Role of the States In the Amendment Process
• The Federalism Factor
• The Advantages of Federalism
• The Future of Federalism
• B.: the Separation of Powers
• Checks and Balances
• Checks Upon the Congress
• Checks Upon the President
• Checks Upon the Judiciary
• The Independence of Congress
• The Independence of the President
• The Independence of the Judiciary
• Summary and Review
• Separation of Powers: a Critical Evaluation
• Separation of Powers At the Crossroads
• C.: The Rule of Law
• The Basic Principles of the American Constitution
• Appendix A: the Federalist No. 10
• Appendix B: the Federalist No. 45
• Appendix C: The Federalist No. 47
• Part 5: Defending the Constitution: the Struggle Over Ratification and the Bill of Rights
• Points to Remember
• A.: the Anti-federalist Persuasion
• The Constitution Establishes a Consolidated Empire
• The Constitution Establishes an Aristocracy
• The Constitution Confers Too Much Power
• An Imperial Congress
• An Elected Monarch
• An Omnipotent Judiciary
• B.: the Federalist Response
• The Constitution Limits and Distributes Power
• Congress Is Not an Oligarchy
• The President Is Not a King
• The Judiciary Is the Least Dangerous Branch
• Whether a Bill of Rights Was Necessary
• The Clash of Values
• C.: The Bill of Rights
• The First Amendment: Religious Freedom, and Freedom to Speak, Print, Assemble, and Petition
• The Second Amendment: the Right to Bear Arms
• The Third Amendment: Quartering Troops
• The Fourth Amendment: Search and Seizure
• The Fifth Amendment: Rights of Persons
• The Sixth Amendment: Rights of the Accused
• The Seventh Amendment: Trial By Jury In Civil Cases
• The Eighth Amendment: Bail and Cruel and Unusual Punishments
• The Ninth Amendment: Rights Retained By the People
• The Tenth Amendment: Rights Retained By the States
• Rights Versus Duties
• Appendix A: the Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents
• Appendix B: Northwest Ordinance (1787)
• Part 6: Interpreting and Preserving the Constitution
• Points to Remember
• Principles of Statutory Construction
• The Doctrine of Judicial Review
• The Supreme Court As Final Interpreter
• The States As Final Interpreters
• Strict Versus Loose Construction
• The Independence of the Judiciary
• A.: Origins of Judicial Independence
• B.: the Judicial Power
• C.: Jurisdiction
• Appendix A: Marbury V. Madison
• Appendix B: Martin V. Hunter’s Lessee
• Appendix C: Washington’s Farewell Address (1796)
• Part 7: Changing the Constitution—together With an Explanation of the Amendments Added Since 1791
• Points to Remember
• Our Living Constitution
• Our Changing Constitution
• Amending the Constitution
• The Limits of the Amending Power
• The Amended Constitution
• A.: Amendment Xi (1798)
• B.: Amendment Xii (1804)
• C.: Amendment Xiii (1865)
• D.: Amendment Xiv (1868)
• E.: Amendment Xv (1870)
• F.: Amendment Xvi (1913)
• G.: Amendment Xvii (1913)
• H.: Amendment Xviii (1919)
• I.: Amendment Xix (1920)
• J.: Amendment Xx (1933)
• K.: Amendment Xxi (1933)
• L.: Amendment Xxii (1951)
• M.: Amendment Xxiii (1961)
• N.: Amendment Xxiv (1964)
• O.: Amendment Xxv (1967)
• P.: Amendment Xxvi (1971)
• Q.: Amendment Xxvii (1992)
• Conclusion

The Meaning of Constitutional Government

Two centuries ago, fifty-five men met at Philadelphia to draw up a constitution for the United States of America. The thirteen States that once had been British colonies urgently needed a more reliable general government, a better common defense against foreign powers, a sounder currency, and other advantages that might be gained through establishing “a more perfect union” founded on a solemn agreement, or fundamental law, called a constitution.

Today, the fundamental law of the United States of America still is that Constitution of 1787, a written document which is respected and obeyed almost as if it were a living thing. This book examines that Constitution, inquiring how it was developed, what its provisions mean, why it has functioned so well, and how it affects everybody’s life in America today.

What do we mean by this word constitution? As a term of politics, constitution signifies a system of fundamental principles—a body of basic laws—for governing a state or country. A constitution is a design for a permanent political order.

A constitution does its work through what is known as the rule of law: that is, people respect and obey laws, rather than follow their own whims or yield to the force of somebody else. Every country develops a constitution of some sort, because without a regular pattern of basic law, a people could not live together in peace. Lacking a tolerable constitution, they never would know personal safety, or protection of their property, or any reasonable freedom. Even savage tribes may be said to be governed by “constitutional” customs of a simple nature.

The most widely admired of all constitutions is the United States Constitution. It was written in 1787 and took effect in 1789. It was, and is, rooted in the experience and the thought of many generations of people. This is a major reason why the American Constitution still flourishes in our day. Like some great tree, the Constitution of the United States is anchored and nurtured by roots that run deep into the soil of human experience. Those constitutional roots are the political institutions, the laws, the social customs, and the political and moral beliefs of earlier ages and other lands.

Nowadays we tend to think of a constitution as a written document, but actually constitutions may be partly or even wholly unwritten. These unwritten constitutions are not based on a single document but are made up of old customs, conventions, statutes, charters, and habits in public affairs. The British Constitution is an example of this sort of basic body of laws. Until the Constitution of the United States was agreed upon in Philadelphia, all national constitutions were “unwritten” and informal. A few years after the American Constitution was drawn up, written constitutions were adopted in Poland and France. Even the American Constitution is not entirely set down upon paper, however.

For it has been said that every country possesses two distinct constitutions that exist side by side. One of these is the formal written constitution of modern times; the other is the old “unwritten” one of political conventions, habits, and ways of living together in the civil social order that have developed among a people over many centuries. Thus, for instance, certain important features of America’s political structure are not even mentioned in the written Constitution of 1787. For example, what does the written Constitution of the United States say about political parties? The answer is—nothing. Yet political parties direct the course of our national affairs. What does our written Constitution say about the President’s cabinet, with its secretaries of state, of the treasury, agriculture, defense, education, and the like? The answer again is nothing; yet the President could not function without a cabinet.

So it is possible to speak of a “visible” and an “invisible” constitution, and of a “written” and an “unwritten” constitution. In this book we are concerned principally with the written Constitution of the United States, although from time to time we will refer also to aspects of our basic political system that have not been set down in writing.

A constitution is an effort to impose order for the achievement of certain ends. Those ends are often set forth in a preamble to the document, as in the American Constitution, which states that the “People of the United States” have established the Constitution “to form a more perfect union, establish justice, ensure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.”

Liberty, order, and justice, it may thus be seen, are the primary objectives of the American political system. They are probably the most important and all-embracing of the many goals we pursue as a nation. The significance of liberty, order, and justice is reflected in other constitutions as well. Thus the constitution of the Republic of Korea (1980) asserts that its purpose is “to consolidate national unity with justice,” “destroy all social vices and injustice,” “afford equal opportunities,” and “strengthen the basic free and democratic order.” Portugal’s constitution (1974) seeks to “safeguard the fundamental rights of citizens,” “secure the primacy of rule of law,” and build a “freer, more just” country. The constitution of Venezuela (1972) states that its purpose is to ensure “the freedom, peace, and stability of its institutions,” and to provide for “social justice” and support of “the democratic order.” Inspired by the nobility of purpose stated in the American Constitution, the preamble to Argentina’s constitution of 1853 claims that the fundamental law of this South American republic aims toward “ensuring justice, preserving the domestic peace, providing for the common defense, promoting the general welfare, [and] securing the blessings of liberty to ourselves, to our posterity. …”

Liberty, order, and justice are all made possible by sound constitutions; but a constitution is only a “parchment barrier,” and even a well-conceived constitution will fall short of its goals if the people fail to support it. Many of the Framers of the American Constitution were of the opinion that constitutional government requires, above all, a “virtuous” citizenry if it is to endure. Certainly a constitution cannot last if it is willfully ignored, or if there is no common understanding among the citizens and their elected leaders as to what the achievement of liberty, order, and justice requires.

What did the Framers mean, then, when they dedicated themselves and their fellow countrymen to the pursuit of these ideals? Let us briefly define these important terms as they have been traditionally understood: liberty (or freedom) means the absence of coercion or force, or the ability of an individual to be a thinking and valuing person and to carry out his own plans instead of being subject to the arbitrary will of another. Order means the arrangement of duties and rights in a society so that people may live together in peace and harmony. By ordered freedom we mean individual freedom that recognizes the need to limit freedom in some respects and rejects the notion that the individual should have absolute freedom to do as he or she pleases irrespective of the rights of others. Without the restraint of law and order, freedom cannot exist. Justice means the securing to persons of the things that rightfully belong to them, and the rewarding of persons according to what they have earned or deserve. Equality of opportunity and equality before the law are normally regarded as attributes of justice in a free society, as distinguished from equality of result or condition, which must be imposed by coercion.

To understand liberty, order, and justice, think of their opposites: slavery, disorder, and injustice. The aim of a good constitution is to enable a society to have a high degree of liberty, order, and justice. No country has ever attained perfect freedom, order, and justice for everyone, and presumably no country ever will. This is because human beings and human societies are both very imperfect. The Framers of the Constitution of the United States did not expect to achieve perfection of either human nature or government. What they did expect was “to form a more perfect union” and to surpass the other nations of their era, and of earlier eras, in establishing a good political order.

Over the centuries, constitutions have come into existence in a variety of ways. They have been decreed by a king; they have been proclaimed by conquerors and tyrants; they have been given to a people by religious prophets such as Moses, who gave the Ten Commandments and laws to the Israelites; they have been designed by a single wise man such as Solon, who gave a new constitution to the people of Athens in ancient Greece six centuries before Christ. Other constitutions have grown out of the decisions of judges and popular custom, such as the English “common law.” Or, constitutions can be agreed upon by a gathering called a convention. The constitutions that have been accepted willingly by the large majority of a people have generally been the constitutions which have endured the longest.

But because people are restless and quarrelsome, few constitutions have lasted for very long. Nearly all of those that were adopted in Europe after the First World War had collapsed by the end of the Second World War a quarter of a century later; many of the newer constitutions proclaimed in Europe, Asia, and Africa not long after the Second World War ended in 1945 have already have been tossed aside or else do not really function anymore. There are today more than one hundred national constitutions in force throughout the world. Nearly all of them were written and adopted after the Second World War. The oldest and most respected constitution is the Constitution of England. It dates back to the beginning of the thirteenth century.

Much of the written Constitution of the United States is derived from the “unwritten” English Constitution—or, to be more precise, from the English Constitution as it stood during the latter half of the eighteenth century. For England’s constitution developed and changed over the centuries. By 1774, when the American struggle for independence began, the fundamental laws of England were very different from what they had been in 1215, the year when King John accepted the constitutional document known as the Magna Charta. All good constitutions change over the years because the circumstances of a nation change. As the great parliamentary leader Edmund Burke put this in the eighteenth century, “Change is the means of our preservation.” But good constitutions also contain many provisions that are permanent. These are principles and rules of law that help prevent rash or hasty changes which might work mischief. Unlike the English Constitution, which can be changed by a mere statute of Parliament, the American Constitution can be formally changed only when a large majority of the people, through their States, approve an “amendment.”

The American Constitution is like the English Constitution in another way. Both are based on the principle that liberty, order, and justice are difficult to achieve and must be preserved through fundamental laws that should be respected and not easily cast aside to serve a temporary expedient or to satisfy the whims of a transient majority that is here today and gone tomorrow.

What is a good constitution supposed to accomplish besides protecting liberty, order, and justice? We may set down below four primary characteristics of a good constitution.

First, a good constitution should provide for stability and continuity in the governing of a country. The subjects or citizens of a political state should be assured by their constitution that the administering of the laws and of major public policies will not change continuously from one day or year to another day or year. What was lawful yesterday must not suddenly be declared unlawful tomorrow unless through a formal amendment to the Constitution. People must be able to live their lives according to certain well-known rules. A good constitution also helps a country to achieve economic prosperity. When a country’s constitution does not guarantee stability and continuity, no man or woman can plan for the future. When we make decisions, it is important that we know with reasonable certainty what the consequences will be.

Second, a constitution should restrain government from assuming powers that rightfully belong to other political entities or to families or individuals. This can be accomplished by limiting and dividing power. A wise constitution may allocate certain powers to a central government and other powers to regional or local governments; or it may assign certain functions and prerogatives to each of the major branches of government—the executive, the legislative, the judicial. Certainly a prudent constitution will provide safeguards against arbitrary and unjust actions by persons who hold power.

Third, a constitution should establish a permanent arrangement that enables public officials and others with political authority to represent the people they govern. To put this another way, with a good constitutional order the people ought not to be ruled by a group or class of persons quite different from themselves who do not have at heart the best interests of the majority of the people. This does not necessarily mean that a constitutional government has to be totally democratic. It also does not mean that a good constitution must necessarily provide for “one man, one vote.” There have been decent constitutional systems that were monarchical, or aristocratic, or under which the right to vote was limited.

Fourth, a good constitution holds public officials directly accountable to the people. This means that the governing class or public officials must be held responsible—under the constitution—for the actions they take while in public office. Under a truly constitutional government, no man or woman can be permitted to exercise arbitrary power—that is, to disregard laws or popular rights whenever it is thought convenient to do so. All officials must be held accountable to established authorities such as the courts of law, to the legislature, and to the voting public, and should not be allowed to exempt themselves from the laws they enact. Public officials should also be held accountable to fiscal inspectors, and should be subject to removal from office through impeachment for “high crimes or misdemeanors,” such as the abuse of power or the misuse of public funds.

Various other characteristics of a sound constitutional system might be named. The four above are particularly important, however, and are now found in one form or another in the constitution of every country that enjoys a high degree of liberty, order, and justice.

These characteristics of a good constitution help us to recognize what can and cannot be achieved through constitutions.

A good constitution, in the first place, ought not to incorporate detailed regulations to cover every contingency. On the contrary, the constitution should be concerned with first principles of government; it should not be an endeavor to provide rules of administration for a multitude of concerns. The longer a constitution is, the fewer people will read it, and the harder it will become to distinguish its major provisions from details of relatively small importance. Respect for a constitution will be diminished if it becomes an entire code of laws dealing with every conceivable subject.

Second, a written constitution ought not to conflict with the “invisible constitution” or long-established patterns of institutions, customs, and beliefs that have strongly influenced a country’s politics for many generations. A constitution invented by radicals, one deliberately designed to break down a people’s traditional ways, must meet with strong resistance or evasion. The framers of a constitution ought to understand the political traditions of their time and country. A good constitution, in other words, should conform to the character, habits, and mores of the people who will live under it. Because civilizations differ, a constitution that is suitable for one country may be unsuitable for another. It would be unrealistic, for example, to suppose that the entire American Constitution can be exported to foreign nations. A country without a strong democratic tradition of self-government and a well-educated population may also have difficulty preserving a constitution, particularly if that constitution presupposes a level of political understanding and maturity to which the people have not risen. For merely creating an idealistic paper constitution will not bring about substantial improvement in liberty, order, or justice. The “paper constitutions” of many new African states that were proclaimed during the 1950s and 1960s collapsed altogether within a very few years.

Third, a good constitution should be neither easy to alter nor impossible to amend. This is because, on the one hand, a constitution is meant to be permanent and to assure a people that the political pattern of their country will not drastically change. On the other hand, the word permanent does not mean eternal. It is simply not possible for people who are living near the end of the twentieth century to draft an unalterable constitution for their great-grandchildren who will be living in a century to come.

This is true because, in the course of a century or two centuries, there may occur significant political, economic, technological, military, or even physical changes in the circumstances of a nation. Therefore a good constitution must be elastic enough to allow for modification of certain of its provisions without the need to abolish the whole constitution.

This understanding of what a constitution should do and cannot do is derived chiefly from the success of the Constitution of the United States. “The American Constitution is the most wonderful work ever struck off at a given time by the brain and purpose of man,” wrote William Gladstone, an English statesman, in 1878. That may seem to be extravagant praise. But surely no body of men has ever achieved a political result more ennobling and more enduring than that which the Framers of the Constitution produced in the summer of 1787.

The following sections of this book explain the historic roots of the American Constitution, the events of the “Great Convention” of 1787, the major political principles of the Constitution, why the Bill of Rights was added to the original articles of the Constitution, the process of ratification, the meaning of the document’s important provisions, how they are to be interpreted, and how they may be changed.

Presumably, nearly all the people who read this book will continue to live under the protection of the Constitution of the United States, so they may find it worthwhile to understand just what the Constitution does, and how it influences their lives, their family, their community, and their nation.