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.
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?