AMERICAN CONSTITUTIONALISM

The United States of America is credited with the establishment of the modern idea of the constitution as a central, single document that operates as a paramount law representing the fundamental compact between people and their government, with popular sovereignty being expressed and preserved by the paramount status of the constitution.

While the Constitution of the United States, drafted in 1787 and ratified the following year, came to represent the core of this constitutional tradition, one should take account of “the complex of political concepts observable in certain documents, procedures, and institutions that came into being within the United States during the founding period from 1776 to 1791” (Billias 1990: 2).

The constitutional experience of the United States was also shaped by the struggle of the colonies for independence from British imperial power, which apparently caused the American constitution-makers to be particularly concerned with certain specific features of their project: “First and foremost, a constitution must list the fundamental principles and individual rights which lawmakers were bound to respect because they were, in the words of the American Declaration of Independence of 1776, ‘truths’ held to be ‘self evident’” (Preuss 1995: 30). The practical legal consequence of this idea was that the power of lawmakers must be limited since the lawmaking assembly itself was created on the basis of the constitution. That conception represented “the truly revolutionary idea that political sovereignty is first created by a constitution and is not a preexisting entity whose powers a constitution merely limits” (30). The notion that constitutions constitute government in the first place was an evident truth to people of the American colonies, since it was the constitution that would settle and regulate the kind of government they had in mind.

The second fundamental attribute of American constitutionalism, according to Preuss, was that it had to have a normative character. Precisely because they had to contest the absolute power of the British Parliament, the framers of the American constitution were determined to have a constitution that would have “the binding force of a higher law whose infringement would give people the right to rebel” (Preuss 1995: 31). The ultimate source of authority regarding the legal exercise of power had to rest in clearly defined principles whose authority exceeded that of men. The normative status of constitutional dictates would mean that any particular government could not conveniently interpret the constitution to suit its own purposes.

Another reflection of the normative character of a constitution related to its codification in a single written document, which is to be viewed as “sacred.” To secure legitimacy as a foundational statement of paramount law, a constitution had to be a categorical, unambiguous statement of principles, which is best achieved by stating them in a single document. As written law, the constitution had to be presented like a sacred document, in order to have “the same status for American settlers and their political intentions that Luther’s translation of the Bible had for the German Protestants” (Preuss 1995: 32). Still, it should be emphasized, the written constitution was only a stage in a long process, part of subsequent as well as earlier developments rather than an autonomous, self-contained, and conclusive “event.”

A third key feature of American constitutionalism is the manner in which the principle of the sovereignty of the people is organized. “The Constitution set up a system of government based on the idea, however circumscribed in its application, that sovereignty ultimately resided not with ‘the nation’ (as the French would have it) but with ‘the people’” (Keller 1987: 678). The reason for this difference may have been that the citizens of the United States did not see themselves as a nation, with a national culture and history, as those of France perceived themselves at the time.

American constitutionalism was fed as well by the swelling popular nationalism of nineteenth century American culture. Like its European counterparts, American nationalism required legends, heroes, totems; unlike them, it had no deep traditions of an American volk on which to draw. The sanctification of the Constitution (like tales of valor in the Revolution and the War of 1812, the popular hagiography of the lives of Benjamin Franklin, George Washington and other founders, and the veneration of the Declaration of Independence) helped meet that need. (Keller 1987: 680)

These associations may well have helped to create or sustain the resonance of the constitution as sacred among American settlers. Another reason for the initial success of American constitutionalism was that, in contrast to France at the time, there was no support for any kind of monarchy in competition with the republic (Keller 1987: 680). But the point to emphasize for my purposes here is that there are different ideas of sovereignty in the British, American, and French histories of constitutionalism. This is true for the manner in which popular sovereignty is authorized as political power, as well as for the manner in which the people are defined. Moreover, whatever notion of the “people” was dominant in early America and reflected in the constitution, that has in turn reinforced that idea and helped strengthen it in American political and public life.

In Keller’s view (1987), Power and Rights are the two major themes in American constitutionalism. The first century of American constitutionalism (late eighteenth and nineteenth centuries) reveals a focus on control and demarcation of power; the second century (twentieth century) on civil liberties, and the rights of individuals and groups. For my part, it is important to note that the constitutional protection of rights in the American constitution refers to a particular societal conception of liberties. On the one hand, the American constitution “has come to stand for individual rights, protected even against legitimate authority, even against the elected representatives of the people, and in large measure, even when they act in good faith and the public interest” (Henkin 1990:1). On the other hand, “The idea of rights is not explicit in the U.S. Constitution.... The individual’s rights then do not derive from the Constitution. They are not, strictly, ‘constitutional rights.’ But they are pro-tectedby the Constitution” (3). Thus, as in the British case noted earlier, rights in the American setting are also understood in terms of a wider notion of liberties. The vital difference between these two traditions is that these liberties are positively protected in the American constitution as opposed to the British model, where they are upheld in the negative sense of not prohibiting them.

American constitutionalism is credited with exceptional influence not only on the constitutions of many other countries, but on the concept of constitutionalism itself. Thomas Paine’s analysis of the American constitution, often called the first clear elaboration of the modern sense of the term (Sartori 2003), include the following key points (Mcllwan 1940: 11):

· There is a fundamental difference between a people’s government and that people’s constitution, whether the government happens to be entrusted to a king or to a representative assembly.

· The constitution is antecedent to the government.

· The constitution defines the authority which the people commit to their government, and in doing so they thereby limit it.

· If the distinction is not actually observed between the constitution and the government, the state will in fact be despotic because the will of the government has no check upon it.

The preceding brief review confirms the view that American constitutionalism is first and foremost a product of its own history, process and context; constantly evolving and adapting in response to its own challenges, internal and external. Secondly, American constitutionalism is sustained by its own culture, institutions, and nationalist mythology. All these underlying factors evolved in dynamic interaction with each other over several centuries, rather than being a given state of affairs from the start. The following reflections on the French experience, without attempting a detailed discussion of all relevant developments, suggest similar conclusions in that case as well.