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James Mackintosh on how constitutions grow and are not made (1799)

The Scottish Whig politician and moral philosopher Sir James Mackintosh (1765-1832), writing during the French Revolution, believed that a free constitution was one that evolved gradually over time and was not created in one piece by men in an act of violence:

Such a body of political laws (the constitution of a state) must in all countries arise out of the character and situation of a people; they must grow with its progress, be adapted to its peculiarities, change with its changes, and be incorporated with its habits. Human wisdom cannot form such a constitution by one act, for human wisdom cannot create the materials of which it is composed. The attempt, always ineffectual, to change by violence the ancient habits of men, and the established order of society, so as to fit them for an absolutely new scheme of government, flows from the most presumptuous ignorance, requires the support of the most ferocious tyranny, and leads to consequences which its authors can never foresee,—generally, indeed, to institutions the most opposite to those of which they profess to seek the establishment.

It is impossible in such a cursory sketch as the present, even to allude to a very small part of those philosophical principles, political reasonings, and historical facts, which are necessary for the illustration of this momentous subject. In a full discussion of it I shall be obliged to examine the general frame of the most celebrated governments of ancient and modern times, and especially of those which have been most renowned for their freedom. The result of such an examination will be, that no institution so detestable as an absolutely unbalanced government, perhaps ever existed; that the simple governments are mere creatures of the imagination of theorists, who have transformed names used for convenience of arrangement into real politics; that, as constitutions of government approach more nearly to that unmixed and uncontrolled simplicity they become despotic, and as they recede farther from that simplicity they become free.

By the constitution of a state, I mean “the body of those written and unwritten fundamental laws which regulate the most important rights of the higher magistrates, and the most essential privileges of the subjects.” Such a body of political laws must in all countries arise out of the character and situation of a people; they must grow with its progress, be adapted to its peculiarities, change with its changes, and be incorporated with its habits. Human wisdom cannot form such a constitution by one act, for human wisdom cannot create the materials of which it is composed. The attempt, always ineffectual, to change by violence the ancient habits of men, and the established order of society, so as to fit them for an absolutely new scheme of government, flows from the most presumptuous ignorance, requires the support of the most ferocious tyranny, and leads to consequences which its authors can never foresee,—generally, indeed, to institutions the most opposite to those of which they profess to seek the establishment. But human wisdom indefatigably employed in remedying abuses, and in seizing favourable opportunities of improving that order of society which arises from causes over which we have little control, after the reforms and amendments of a series of ages, has sometimes, though very rarely, shown itself capable of building up a free constitution, which is “the growth of time and nature, rather than the work of human invention.” Such a constitution can only be formed by the wise imitation of “the great innovator Time, which, indeed, innovateth greatly, but quietly, and by degrees scarce to be perceived.”† Without descending to the puerile ostentation of panegyric, on that of which all mankind confess the excellence, I may observe, with truth and soberness, that a free government not only establishes a universal security against wrong, but that it also cherishes all the noblest powers of the human mind; that it tends to banish both the mean and the ferocious vices; that it improves the national character to which it is adapted, and out of which it grows; that its whole administration is a practical school of honesty and humanity; and that there the social affections, expanded into public spirit, gain a wider sphere, and a more active spring.

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Mackintosh’s “Discourse on the Law of Nature and Nations” (1799) poses a dilemma for defenders of the American Constitution since it seems to have been created in one piece by specific men at a specific place after an act of violence. These were the very things which Mackintosh warned would lead to not only unintended consequences but to the creation of “institutions the most opposite to those of which they profess to seek the establishment”. The founders of the American Constitution might counter with the argument that the free constitution Mackintosh extolled, one that “arise(s) out of the character and situation of a people; (which grows) with its progress, (adapts) to its peculiarities, change(s) with its changes” was being denied the colonists by Britain, hence the need to change matters. Mackintosh’s perspective is one which is very much within the Fergusonian and Hayekian traditions which sees societies, law making, and constitutions as the “result of human action but not of human design.” Nevertheless, he does raise the problem of what to do when a constitution evolves in an increasingly despotic direction: can such a society “evolve its way out” of despotism towards liberty, or is some kind of circuit-breaker required like the American Revolution to set it off in a new pro-liberty direction?

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