To My Fellow Citizens:
We Americans have a constitutional history going back further than we usually think. It is an instructive history. We were a constitutional people long before we became a nation. For nearly 170 years, England's North American colonists lived and prospered under the English (later British) constitution and thus enjoyed the rights and liberties of Englishmen. They had colonial charters, of course, and they learned to cherish representative government. But the wellspring of their rights and liberties, as they understood them, was the English constitution itself. Unlike our present U.S. Constitution, the English constitution is unwritten. In the seventeenth and eighteenth centuries it was best understood as a set of judicial precedents and institutional arrangements, developed over time, which ensured a balanced government.
This balance guaranteed that no branch of the government (though they didn’t think in terms of branches the way we do) would become too powerful. According to the English Whig historical narrative, the Glorious Revolution of 1688-89 expelled the would-be tyrant King James II, elevated Parliament, and thereby preserved English liberty through constitutional balance. In a late-feudal and early-modern European world of absolute monarchies, English parliamentarians declared that royal power had limits. Small wonder, then, that England's North American colonists thought themselves the freest people on earth.
But as Americans became more integrated into the British Empire, they came to understand liberty and constitutionalism in ways that differed from their brethren across the Atlantic. Britain's clumsy efforts to extract revenue from the colonists—stamp taxes, tea taxes, etc.—ignited a great constitutional struggle. When Parliament claimed the power to make laws for the colonies, America's political leaders met this claim with defiance. "The true ground on which we declare these acts void," Thomas Jefferson argued, is "that the British parliament has no right to exercise authority over us." In short, Jefferson and his compatriots declared independence from the British Empire in large part because they realized that the unwritten British constitution meant whatever Parliament said it did.
Recognizing that an unchecked legislature posed as great a danger to liberty as did an absolute monarch, America's revolutionaries commenced the second act of our constitutional story when they set about drafting written constitutions, including the U.S. Constitution of 1787. History had shown that even in the English-speaking world power and liberty were constantly in tension.
Societies need their governments to exercise power for the common benefit, but that power requires meaningful limits. Fully discarding both divine right monarchy and parliamentary sovereignty, America's constitution-makers appealed to the sovereign consent of the people to impose limits on government authority and instruct public officials in what powers they may wield.
The constitution-makers divided these powers among the three branches and between federal and state jurisdictions. They wrote bills of rights to serve as redundant checks in case any public official forgot the popular source and limited nature of government's powers. To exercise powers not granted by the people through their written constitutions, Jefferson wrote in 1791, was to "take
possession of a boundless field of power, no longer susceptible of any definition." In the ensuing decades, America's post-revolutionary statesmen did not always agree on the precise meaning and limits of constitutionally enumerated powers. Universally, however, they acknowledged a good people's sovereignty channeled through written constitutions as America's salvation from arbitrary rule.
This firm belief in the relationship between liberty, the sovereign people, and enumerated constitutional powers persisted into the twentieth century, when American progressives launched the third act of our constitutional drama. For more than a hundred years the United States had grown and prospered. Americans built canals and railroads, settled the trans-Mississippi West, and assimilated millions of immigrants. Despite a cataclysmic rebellion and civil war, the Founders' constitutional order survived. By the early 1900s, however, many came to believe that industrialization and modernization posed challenges for which the Founders' Constitution was inadequate. National problems, Theodore Roosevelt insisted, required national solutions.
As I noted in an earlier letter, progressives' belief in the inadequacy of eighteenth-century governments to deal with twentieth-century problems compelled them and especially their intellectual heirs on the political left to adopt a kind of "living" constitutionalism. The U.S. Constitution, they say, is organic; it must evolve as society’s challenges multiply. It is true that on four separate occasions the first generation of progressives at least had the decency to amend the Constitution. As they discover more and more "national" problems, however, modern progressives grow impatient with constitutional restraints and the people's sovereignty. They turn more and more readily to virtually lawless government-by-experts. When asked to identify constitutional authority for one or another proposed progressive remedy, they sometimes react with utter astonishment.
There is a strange irony in the name "progressive," for the progressives' "living constitution," in replacing enumerated powers and the sovereignty of the people with the unlimited sovereignty of government, resembles the British constitution we rejected over two centuries ago. The next historic act in America’s constitutional drama is to recover the Founders' Constitution.