The Reasons the Constitution Exists
“In all free states the constitution is fixed.”
Samuel Adams and James Otis Jr. -.along with the rest of the founders and old revolutionaries – knew that freedom cannot exist with a government that doesn’t have strict rules. A clear line in the sand that it’s not allowed to cross.
In other words – when government determines the extent of its own power.
The lessons they learned in the American Revolution gave birth to the written constitution. But what they told us are the reasons for it – are completely ignored by the government-run “education” system.
THE FOUNDATION
One of the most important outcomes of the American Revolution is one that few of us are ever taught. St. George Tucker called it something new in history.
“The American revolution seems to have given birth to this new political phenomenon: in every state a written constitution was framed, and adopted by the people, both in their individual and sovereign capacity, and character.”
In order to understand how that happened – and the real reasons for the constitutions which followed – we have to first go back to the core reasons for the American Revolution.
And no, it wasn’t about getting representatives to tax them. It was about power.
Thomas Paine couldn’t have been more clear: there is only one word for it when government gets the final say over what it will or will not do. When it decides the limits of its own power.
Despotism.
“A despotic government knows no principle but WILL.”
No rules, no constitution – nothing. Just the person or people with power doing whatever they can get away with.
“Whatever the sovereign wills to do, the government admits him the inherent right, and the uncontrouled power of doing. He is restrained by no fixed rule of right and wrong, for he makes the right and wrong himself and as he pleases.”
On the other end of the spectrum, John Dickinson explained the position of the American Revolutionaries. A real “land of the free” exists only where government not only has clear constitutional rules, but is slapped back into place as soon as it gets out of line.
“For who are a free people? Not those, over whom government is reasonably and equitably exercised, but those, who live under a government so constitutionally checked and controuled, that proper provision is made against its being otherwise exercised.”
Adams and Otis understood that a constitutional-system where government goes beyond the constitutional limits whenever it wants? It’s not much different than having no constitution at all.
“And as the supreme legislative derives its power and authority from the constitution, it cannot overleap the bounds of it without destroying its own foundation”
THE CONTROVERSY
You might be thinking “there was no constitution in 1768!” But even without a written constitution there still was a constitution, the unwritten British Constitution. And all the founders referred to it as “the constitution.”
In practice, since Parliament claimed sovereignty- final authority – Every act of Parliament was, in essence, part of the constitution. In the British view, it was an absurdity to claim an act of Parliament was “unconstitutional.” Since it was sovereign, anything Parliament did was, by their definition, automatically “constitutional.”
Parliament even went so far as to assert this power by passing that claimed unlimited power over everyone – for all time. The Declaratory Act of 1766 said that Parliament had “full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America, subjects of the crown of Great Britain, in all cases whatsoever.”
That same law also attempted to nullify merely questioning the extent of British power.
“All resolutions, votes, orders, and proceedings, in any of the said colonies or plantations, whereby the power and authority of the parliament of Great Britain, to make laws and statutes as aforesaid, is denied, or drawn into question, arc, and are hereby declared to be, utterly null and void to all in purposes whatsoever.”
Despite that, the Americans persisted, and continued to publicly insist that government power was strictly limited. Thomas Jefferson’s Summary View in 1774 also made it pretty obvious that they didn’t care if the “law” held that saying so was null and void.
“The true ground on which we declare these acts void is, that the British parliament has no right to exercise authority over us.”
This was the entire basis of the controversy between the British and the colonies. As Alexander Hamilton explained just months after Jefferson, it was whether the rules given to government would be strictly followed, or whether government could change them as they saw fit.
“What then is the subject of our controversy with the mother country? It is this, whether we shall preserve that security to our lives and properties, which the law of nature, the genius of the British constitution, and our charters afford us; or whether we shall resign them into the hands of the British House of Commons, which is no more privileged to dispose of them than the Grand Mogul?”
The result? James Madison wrote that the British learned a lesson the hard way. Claim unlimited power, and you just might find out you have none at all.
“The assertion by G.B. of a power to make laws for the other members of the Empire in all cases whatsoever, ended in the discovery, that she had a right to make laws for them, in no cases whatsoever.”
THE LESSON
The Founders also learned an important lesson from the Revolution. As Tucker explained, power that isn’t clearly defined quickly turns into unlimited power. So the starting power is to clearly spell it all out.
“The advantages of a written constitution, considered as the original contract of society must immediately strike every reflecting mind; power, when undefined, soon becomes unlimited; and the disquisition of social rights where there is no text to resort to, for their explanation, is a task, equally above ordinary capacities, and incompatible with the ordinary pursuits, of the body of the people.”
This should be obvious, but in case it’s not. John Dickinson made it clear. Just writing a constitution – no matter how good it is – isn’t enough on its own.
“A good constitution promotes, but not always produces a good administration.”
That’s because, as all the founders understood, Constitutions don’t enforce themselves: Never could and never will. James Madison told us that something more than words on paper is needed to prevent tyranny.
“A mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”
TWO REASONS
With that background, St. George Tucker told us the reasons for a written constitution. First and foremost it’s about making it clear who’s in charge – and who’s the hired help.
“By this means, the just distinction between the sovereignty, and the government, was rendered familiar to every intelligent mind; the former was found to reside in the people, and to be unalienable from them; the latter in their servants and agents”
Everyone knew – as Thomas Paine so clearly described, the very existence of a written constitution explained this hierarchy of power.
“A constitution is a thing antecedent to a government, and a government is only the creature of a constitution. The constitution of a country is not the act of its government, but of the people constituting its government.”
Second – it lays out the structure of the system: the rules for the hired help, which spell out what they’re authorized to do.
“By this means, also, government was reduced to its elements; its object was defined, its principles ascertained; its powers limited, and fixed; its structure organized; and the functions of every part of the machine so clearly designated, as to prevent any interference, so long as the limits of each were observed.”
The same structural principles that Tucker was describing in state constitutions also apply under the constitution for these United States.
“The same reasons operated in behalf of similar restrictions in the federal constitution.
Accordingly we find the structure of the government, its several powers and jurisdictions, and the concessions of the several states, generally, pretty accurately defined, and limited.”
First Chief Justice John Jay also explained these same two core reasons for the written constitution.
First, to assert that the people are in charge and government is their agent. And second, to make it clear that these agents are authorized to exercise only those powers that the people have decided to allow them to exercise.
“The Constitution only serves to point out that part of the people’s business, which they think proper by it to refer to the management of the persons therein designated”
THE STRUCTURE
But even with the rules written out, the founders understood, as John Dickinson put it, people with power will still do everything they can to expand their power.
“All artful rulers, who strive to extend their power beyond its just limits, endeavor to give to their attempts as much semblance of legality as possible.”
So, in response to Anti-Federalist warnings about ambiguity pervading the Constitution, they added two amendments to explain the entire structure of the system. First, Tucker noted, was one about powers delegated and reserved.
“But to guard against encroachments on the powers of the several states, in their politic character, and of the people, both in their individual and sovereign capacity, an amendatory article was added, immediately after the government was organized, declaring; that the powers not delegated to the United States, by the constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people.”
Ten months to the day before it was ratified, Thomas Jefferson called this one amendment the foundation of the entire constitutional system.
“I consider the foundation of the Constitution as laid on this ground: That all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.”
They added another amendment about rights that are off limits. Because it’s impossible to list them all out.
“And, still further, to guard the people against constructive usurpations and encroachments on their rights, another article declares; that the enumeration of certain rights in the constitution, shall not be construed to deny, or disparage, others retained by the people.”
This was built off Article II of the Articles of Confederation.
“Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”
Today, we know these as the 10th and 9th amendments in the Bill of Rights. Tucker explained how they work hand in hand in the Constitution.
“The sum of all which appears to be, that the powers delegated to the federal government, are, in all cases, to receive the most strict construction that the instrument will bear, where the rights of a state or of the people, either collectively, or individually, may be drawn in question.”
THE FINAL BOSS
Dickinson also made an interesting observation about the other end of the spectrum: Even a bad constitution doesn’t guarantee a bad administration.
“As a good constitution not always produces a good administration, a defective one not always excludes it.”
That’s because – once in a while – even in a system of unlimited power, the people with that power respect the rights of the people.
“And though the sovereigns cannot even in their ministers, be brought to account by the governed, yet there are instances of their conduct indicating veneration for the rights of the people, and an internal conviction of the guilt that attends their violation.”
As Patrick Henry put it, this is really nothing more than good luck.
“If you have a good President, Senators and Representatives, there is no danger-But can this be expected from human nature?”
But in his view, liberty was far too important to leave to chance – and doing so guarantees it will eventually be lost.
“Without real checks it will not suffice, that some of them are good. A good President, or Senator, or Representative, will have a natural weakness-Virtue will slumber. The wicked will be continually watching: Consequently you will be undone.”
Dickinson then asked the essential question: If paper isn’t a real check on government, and government isn’t a check on itself – Who or what is?
“But, notwithstanding, it must be granted, that a bad administration may take place. What is then to be done?”
The answer, he said, is “the supreme sovereignty of the people.”
“IT IS THEIR DUTY TO WATCH, AND THEIR RIGHT TO TAKE CARE, THAT THE CONSTITUTION BE PRESERVED; or in the Roman phrase on perilous occasions—To PROVIDE, THAT THE REPUBLIC RECEIVE NO DAMAGE.”
And that’s the final – and most important reason for a written constitution. By establishing the hierarchy of power – people at the top, then the constitution, and government at the bottom – it also tells us the real enforcement mechanism. The true checks and balances.
“Political bodies are properly said to be balanced, with respect to this primary origination and ultimate destination, not to any intrinsic or constitutional properties. It is the power from which they proceed, and which they serve, that truly and of right balances them.”
The entire American system is based on that foundation: Government is the hired help, not the boss. And the people themselves are the final check on government power.
That’s how John Hancock explained it as well.
It’s not the constitution that protects the people, it’s the people who are supposed to protect and defend their own constitution and their own liberty – whether the government likes it, or not.
“The powers reserved by the people render them secure.”
They just need to understand them – and use them.
Latest posts by Michael Boldin (see all)