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 Influence of Continental Thinkers

It should come as no surprise that only a handful of contemporary European thinkers on the continent had much influence in the colonies. Most European states were governed by powerful monarchs who were strangers to constitutional government. Germany and Italy, divided into principalities, did not even exist as sovereign nations. Although the Europeans had experimented with confederation government, political power was almost everywhere centralized, and there was no tradition, as in the American colonies, of local self-government to serve as a model for building a modern federal system with two levels of government. The predominant view in Europe, as expressed by Jean Bodin in his De Republica (1576), was that national sovereignty could not be divided and was “unrestrained by laws.” The European legal system, based on the civil law of ancient Rome, but differing from one nation to the next because of the infusion of local customs and practices, differed substantially from Anglo-American common law. It was far less hospitable to the kinds of civil liberties that the English-speaking peoples had come to expect, and as we have already seen did not even allow for jury trials.

A few educated Americans were familiar with the works of some of the great international law jurists—Jean Jacques Burlamaqui, Emmerich Vattel, Samuel Pufendorf, and Hugo Grotius—who wrote on the law of nations and had much to say about the meaning of justice and ethical practices in international relations; but probably the bulk of their influence in America came later, after the United States had become an independent country, adopted the Constitution, and entered into diplomatic relations with foreign governments.

There was considerable intellectual activity in France, which in the eighteenth century had become the center of radical political theory; but the Americans showed little interest, and when they did, as in the case of John Adams, they often expressed profound disagreement. Few American leaders embraced the wild and visionary doctrines of Jean Jacques Rousseau (the patron saint of French revolutionaries), or subscribed to the views of Helvetius, Turgot, or Condorcet. Holbach’s System of Nature (1773), an attack on religion and government anticipating in many respects the ideas of Karl Marx, seems to have had few if any followers in the American colonies. Many of the French works, in fact, had not been translated into English.

The single great exception was Charles Montesquieu’s Spirit of the Laws (1748), one of the most widely read and frequently cited authorities relied upon by the Americans in framing a new system of government. Montesquieu did not advocate utopian solutions to the problem of despotism in his age. He favored constitutional reform. His practical aim was to analyze the constitutional conditions upon which freedom depends, in the hope of restoring the ancient liberties of Frenchmen. The Spirit of the Laws provided a learned, though not always correct, analysis of governments of all ages and nations. Montesquieu admired the English Constitution in particular, and argued convincingly that the preservation of liberty required a separation of powers.

American constitution-makers were much attracted to his separation of powers doctrine but had difficulty applying it. It was based, in part, on an erroneous interpretation of the English Constitution, and Montesquieu’s treatment of the subject lacked clarity and precision. The separation of powers system that he advocated only vaguely acknowledged the need for an accompanying check and balance system, and there was some doubt whether the system could be implemented in America, because Montesquieu believed that a republican form of government could work only in a small territory. The Anti-Federalists were therefore critical of the proposed Constitution of 1787 because it departed from Montesquieu’s ideas. Ingenious at adapting Old World ideas to the American situation and revising them to suit their needs, the Framers argued on practical and theoretical grounds that Montesquieu’s principles, though basically sound, required some modification. The State constitutions written between 1776 and 1780, particularly the Massachusetts Constitution, showed that a system of checks and balances actually strengthened the separation of powers. Montesquieu’s assumption that only small territories were suited for republican government was brilliantly challenged by James Madison in Federalist No. 10. Montesquieu’s ideas, while serving as an inspiration and catalyst for constitutional change before the Revolution, thus lost some of their purity when the Framers got down to the business of putting them into practice.