Ideals of Constitutionalism
Reviewing momentarily the very beginnings of political and social evolution, the first, fundamental step in political development is the movement from total lawlessness, or anarchy, to some kind of centralized law and order. The politically developed nations have of course long accepted the concept of a central authority or government, and the Rule of Law which sets restraints upon the scope of people's actions; but this nevertheless remains as the foundation of government and of a nation's compact with its government.
When power, that is the ability to physically influence the behavior of others, is centralized, the rule of law is thus imposed. Instead of individuals arguing and settling their differences in a continuing series of battles based on personal power, the authority to establish decisions on social conduct together with the power necessary to enforce them is vested in a centralized institution – a monarch, dictator, or elected parliament.
Society can benefit from the stability afforded by centralized rule of law. And if government can formulate and enforce fair, just and universal rules of social conduct, citizens will be able to live at peace with one another in positive and productive collaboration.
However - and this is a major qualification – when the people hand the power of decision over their lives and livelihoods to a centralized institution, they would be well advised before doing so, to qualify that power with strict rules of procedure, and so ensure that the power thus delegated can never be misused.
"We The People" have over the years given to government, or we have stood by while government has taken and continues to take, more and more power over our lives. Constitution sets the conditions on which that power can be used.
That of course is nothing more than an ideal. Power is not handed over conditionally by the people to their newly delegated public administrators. Centralized power is established by strength, then used to benefit those who hold it. Thus in practice any rules attempting to delineate and discipline the use of centralized power must be introduced after the event, generally with considerable resistance on the part of the rulers.
Today we understand clearly and accept fully the idea that constitution limits absolute power. Yet for early reformers it was a contradiction in terms to talk of limiting absolute power. If the power is absolute, then how can it be limited except through a greater power, and what is the nature of that greater power?
The "greater power" which sets limits on autocrats and parliaments is the power of reason, conscience, and custom.
"The idea of constitutionalism is older than the existence of written constitutions. Constitutionalism places limits upon government, proscribing the means by which official power may be exercised. Constitutionalism establishes boundaries between the state and the individual, forbidding the state to trespass into certain areas reserved for private action.
"Constitutionalism also has a deeper and older connotation, demanding adherence by government to recognized customary procedures. The idea of a constitution in this procedural sense can be traced all the way back to Aristotle, who in his Politics and the Constitution of Athens described all the known political arrangements of ancient Greece."
[Constitutions that have made History Ed. Blaustein and Sigler, Paragon House, NY, 1988.]
Though constitutionalism, the spirit of constitution, had already been alive and practiced for many years, England's Magna Carta, the Great Charter of 1215, is now widely accepted by general consent of history as the world's first major constitutional document. Indeed it is interesting to read the constitutions of the USA, both the federal constitution and those of individual states, as well as the constitutions of many Commonwealth countries, and to note how many passages from Magna Carta have simply been copied word for word.
Magna Carta provided Britain's reformers with a firm foundation, a cornerstone on which subsequent constitutional documents could be added to form the assemblage which, combined with unwritten custom, is commonly referred to as Britain's "constitution" today.
Constitution limits absolute power. This it achieves by placing conditions on the use of that power, by requiring the sharing of power with those subject to it through a process of debate, and by establishing boundaries beyond which the law may not intrude.
No government, president or monarch, no institution of law or enforcement, should be created or be allowed to exist and to function without a constitution. No one should have power over others, unless and until that power and the conditions of its use have been strictly defined. In the words of Thomas Paine: "government without a constitution is power without right".
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The Great Charter of 1215
A thousand years ago, in late Anglo-Saxon times, England was united into one kingdom ruled by a king and his council, and the institution of kingship was already established as having limited powers.
The king was bound by his Coronation Oath to defend the church, to punish crime and violence, and to rule with clemency and mercy. He was also bound by customary rules of law, and to some extent his power was restricted by his council. He was viewed as a religious and moral leader, a protector of the people in war and in peace.
Following earlier tradition, the English king was not generally regarded as a source of law, although occasionally he might declare the law with the consent of his council or issue written laws called "dooms". The great body of Anglo-Saxon law was the unwritten folk law, handed down from one generation to the next, giving the common people rights and duties of what we would today call citizenship, and setting out procedures for determining fault or guilt and methods of punishing wrongdoers. While change was not impossible, arbitrary alteration of the rules was considered improper, and indeed, bordered on impiety.
This tradition did not of course preclude the frequent occurrence of abuse by monarchs keen to enhance their own powers, or simply reluctant to recognize any form of constraint over their conduct. In such cases it would be the powerful barons and clergy who would bring the king to order in the name of constitutional custom, reinforced by a growing body of written constitutional documents agreed by the kings either freely or under pressure.
When Henry I succeeded to the English throne in 1100 his first aim was to secure his claim more firmly by pacifying the people's and particularly the barons' anger, which had been roused by the irresponsible and expensive conduct of his predecessor William Rufus.
Henry therefore issued a Coronation Charter, also known as the Charter of Liberties, in which he promised to observe the feudal code and to correct the abuses of his predecessors against the barons and the church. He further commanded the barons, his tenants-in-chief, to behave in like manner to their own tenants. Most significantly, he made the charter applicable to all his subjects: "I henceforth remove all bad customs through which the kingdom of England has been unjustly oppressed."
While the charter was no more than a proclamation of intentions and promises binding only insofar as Henry saw fit to observe them, its form – a written royal grant – gave it legality and lasting significance. Its chief importance was its admission by the king that even his royal powers were limited under the feudal contract. It also helped to strengthen the principle of defined and disciplined constitutional rule, and as such it was to be influential in the formulation of a later and much more famous constitutional document: the Great Charter sealed in 1215 by King John.
The youngest child of Henry II and Eleanor of Aquitaine, John was born in Beaumont Palace, Oxford on December 24th, 1167. When his elder brother King Richard the Lionheart died, John succeeded to the throne on April 6th, 1199. He was crowned in Westminster Abbey on the 27th of May in that same year.
Richard the Lionheart had been totally preoccupied with foreign wars, holy crusades and French conquests, and had given very little time or energy to the affairs of his own country. As a result the barons, knights and free men had to a large extent become the true governors of England, though all was still done in the king's name.
At first John neither diminished those powers nor undermined the authority of the council, and for a while England enjoyed the twin advantages of a strong and active king, and a powerful council within which the voice of the subjects could be heard and from which power was to pass to the knights of the shires and to all free men.
Shortly after John's accession however, the King of France had invaded Normandy, of which John was Duke, then pursuing his conquest throughout all the other provinces of the English kings. John fought expensively but unsuccessfully to defend his lands and by 1204, five years after his accession, Normandy, Anjou and Maine were lost. All that remained were the Channel Islands and the province of Gascony. The barons, now deprived of all but their English possessions, were angered by the king's defeat. They, as well as humbler men, were shocked and humiliated by the nation's losses. In derision they nicknamed the king John Lackland. More seriously, the nation now had to pay for his unsuccessful wars.
In 1205 John rejected the Pope's nomination of Stephen Langton as Archbishop of Canterbury. A papal interdict was laid over the whole country in 1208 and John was excommunicated. John was forced to submit at last by resigning his kingdom to the Pope and receiving it back as a fief of the papacy before the interdict and excommunication were ended in May 1213, a humiliating experience for the whole nation.
In 1214 John conducted another campaign in France and suffered a catastrophic defeat at Bouvines. During his absence the barons banded together under the leadership of Stephen Langton to protest against the longstanding misgovernment of the realm.
Gathered at Bury St. Edmunds (in the coastal county of Suffolk, SE England) in November 1214, the barons agreed to petition the king to grant the liberties and laws set forth in the Coronation Charter of Henry I, swearing that if he refused they would renounce their allegiance to him and go to war.
The Battle of Magna Carta.
Battle? Surely that's one that doesn't figure in the history books. But battle it was. It was a battle which began in 1215 and remains today in the background of governance, in the competing inter-relationships of politics. The Rule of Law requires the existence of centralized power to give law its authority. And there is an on-going battle for power between the users of power and those who would set constraints on its use. In 1215 it was Magna Carta versus Monarch. Subsequently it has become limitation versus exploitation, respect versus abuse. Today a universal lack of constitutional discipline allows corruption of varying degrees from the most extreme to the "soft" corruption of the over-staffing and over-payment which results from government's non-competitive environment.
The Battle of Magna Carta is an on-going intellectual battle. In 1215 it was real.
In January of 1215 a deputation of barons placed a list of their demands before the king; dressed in full armour they would have left the king in no doubt as to their mood. King John asked for and was granted three months to consider these weighty matters. But his ultimate response was clear: "Why, among these unjust demands, did the barons not ask for my kingdom as well? Their demands are vain, foolish, and utterly unreasonable."
This was taken as a declaration of war. On May 17 the barons' army marched on London; the city opened its gates to them and they were joined by many others who had hitherto stayed out of the conflict. The king took refuge in Windsor castle where he became a virtual prisoner. John sent emissaries to the barons, this time with the message that he was willing to grant the charter of liberties they demanded.
On June 10 the two parties met on neutral ground in a green meadow by the River Thames at Runnymede, midway between the king's castle at Windsor, and London which was now the barons' stronghold. The name Runnymede suggests that this was not the first time councils had been held there; the first part is an old English word Runieg, meaning Council Island; mede being a flat field or meadow.
After considerable negotiation a preliminary document was formulated, briefly listing forty-nine points upon which the king was willing to yield. To it King John attached his seal and upon the basis of that initial document a formal Charter was to be drawn up for signature by the king at a further meeting a few days later.
The title of this preliminary document is significant. It read: These are the Articles which the Barons require and which the King concedes.
King John had been compelled by force of arms to comply with the demands of the barons who had risen in armed and successful rebellion against him, and the preliminary heads of agreement recorded that the king conceded the demands which the barons required.
Yet the final, formal version of the Great Charter to which John acceded a few days later on June 15, the Charter we know today, begins with a greeting from the king to his loyal subjects, and records that he has acted with their advice. This change in wording clearly shows that the stability of the monarchy was considered as important as its reformation, and nothing was done to diminish the apparent authority of the king even in the hour of his humiliation and defeat.
With the formal sealing of the Charter, the monarch had confirmed the essential principles of constitutional discipline: the obligation to rule responsibly, to rule in consultation with his peers, and to conduct himself within the bounds of established law and custom.
The Magna Carta was dependent for its observance largely on the monarch's goodwill, which was not always forthcoming. But in one respect at least, the king's subjects had a degree of leverage; it was upon them that the king depended for money to carry on his government and foreign wars, not to mention maintaining his lavish royal lifestyle.
Clause 12 of Magna Carta had already made the raising of taxes (aid or scutage) dependent on the general consent of the kingdom, and clause 14 laid down the method whereby the general consent was to be obtained:
"To obtain the general consent of the realm for the assessment of an aid or scutage we will cause the archbishops, bishops, abbots, earls, and greater barons to be summoned individually by letter... to come together on a fixed day and at a fixed place."
The periodic convening of his influential men by the king continued during the 14th, 15th and 16th centuries, developing gradually into an early form of parliament which would later challenge and claim precedence over the power of the king.
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England after Magna Carta
One of the first major writers on the subject of English constitutional law and custom following Magna Carta was Henry Bracton.
Bracton was born, lived and worked in the southwestern county of Devon during the early 1200s (his birthdate unknown, he died in Exeter, in 1268). He was both a cleric and a justice – as indeed was common at that time, for few but the clergy could read. From 1245 he was an Itinerant Justice for King Henry III, and from 1247 to 1257 was a judge of the Coram Rege which later became the King's or Queen's Bench.
His (Latin language) document On the Laws and Customs of England is one of the oldest systematic treatises on English common law. It also deals in depth with the obligations of, and disciplines upon royal power, concentrating on three major themes: that the king should himself be subject to and act within the law, that he should rule wisely and justly, and that he should rule in consultation with his peers, the "eminent men" of the land.
The king must first of all be subject to, and act within the law.
In stressing the king's relationship with the law, Bracton identifies two aspects of law and the apparent contradiction between them. One aspect of law consists of orders and regulations, and in this sense the king is the source of law. The other aspect of law is the body of custom we would now call the constitutional framework; here the king must himself be subject to law, for the king and the very institution of monarchy owe their existence to law in this constitutional sense.
So Bracton insists that "the king must be under God and under the law, because the king's position owes its very existence to the wider framework of law.
"Let him therefore in his laws, observe the due process of law through which he himself exists. For the king is not fulfilling his legal obligations when he rules by personal will, rather than by due process of law under the ultimate will of God."
Bracton also expects the king to obey his own laws, for the king, though the source of law, is not outside the law:
"What the king is bound by virtue of his office to forbid to others, he ought not to do himself. Let him, therefore, temper his power by the due process of law, which is the discipline upon power, that he may live according to the laws, for the law of mankind has decreed that the lawgiver should be bound by his own laws.
"Nothing is more fitting for a sovereign than to live by and within the laws, nor is there any greater sovereignty than to govern according to the due process of law, and the sovereign ought properly to yield to the tradition and process of law that makes him king."
Bracton strengthens his argument with this forceful reference to Christian example:
"That the king must bow to the process and formality of law is parallelled in the example of Jesus Christ. Though many ways were open to Him to fulfil His destiny in the redemption of the human race, He chose to destroy the devil's work, not through the arbitrary use of His great powers, but by subjecting Himself to the existing laws of justice. In this way He willed Himself to be under the law that He might redeem all those who must live under it. He chose to use not force, but judgement."
Monarchs of England and Europe have often claimed to rule by Divine Right. The kings themselves interpreted the concept of Divine Right as placing them above and beyond the reach – or reproach – of the law, and of those whom they ruled.
Bracton however voices an earlier understanding of Rule by Divine Right, namely that the king is God's minister, and as such is under obligation to rule wisely and responsibly:
"The King is vicar and minister of God on earth, and from God comes the power of justice. Therefore the King's power is that of justice, not injustice. The power of injustice is from the devil, not from God.
"The king will be the minister of him whose work he performs. Therefore as long as he does justice he is the vicar of the Eternal King, but he is the devil's minister when he deviates into injustice or injury.
"The king is called King, not from reigning, but from ruling well, since he is a king as long as he rules well but a tyrant when he oppresses by violent domination the people entrusted to his care."
Bracton also stresses the requirement of participation in the formulation of laws:
"The king should not propose or enact laws rashly by his own will or whim; the law should be properly decided with the counsel of his peers, the king giving it formal authority only after full joint deliberation and consultation."
Bracton thus set out the three major ideals of constitutional monarchy: that the king should himself be subject to and act within the law, that he should rule wisely and justly, and that he should rule in consultation with his peers.
The spirit of Magna Carta lived on and indeed thrived during the Middle Ages. In 1297 King Edward confirmed Magna Carta, declaring that the king's courts shall incorporate its provisions into the common law. Four years later in 1301, again under Edward I, the Charter was elevated to the position of a fundamental statute.
In 1594 Sir Edward Coke was appointed Attorney General to Queen Elizabeth I. Tracing the medieval origins of common law, he collected ancient precedents that later filled the volumes appearing under the title The Institutes of the Laws of England and the Reports of Sir Edward Coke Kt. in English in Thirteen Parts Compleat. A subsequent document, his Reports and Institutes were to become the basis of legal education in England and America throughout the 1700s. He was influential upon early judicial developments in America, having contributed to the Virginia Charter drawn up in 1606.
As attorney general and later chief justice, Coke attempted to impose the essential principles of constitutional discipline upon the Acts of Parliament. In his opinion given in Dr. Bonham's Case (1610) for example, Coke declared: "when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void."
While it is doubtful whether Parliament would have acknowledged then, or would accept today, such an uncompromising view of absolute judicial supremacy, this ideal would become reality some 150 years later as the US Supreme Court.
It was however, the concept of consultation which would occupy England during 1600s. As the century opened the country was ruled by a monarch who still considered himself "absolute". The execution in 1649 of Charles I who held similarly absolutist views, was a dramatically symbolic turning point. His trial and sentencing were performed not by a rabble crowd but by a "special proceeding" of Parliament created and staged with suitable solemnity similar in present-day terms to the Impeachment Proceedings of a US President, thus representing a final denial of the Divine Right of autocratic monarchs and the assertion of parliamentary supremacy. In 1689, following the turbulent years of the Republic, William and Mary ascended the throne, the monarchy now restored at the invitation of Parliament on Parliament's own terms, and the battle for consultation was finally sealed with the Royal Assent to the Bill of Rights. As the new century dawned, Britain had become the Constitutional Monarchy it remains today.
But now a new constitutional challenge would appear: the challenge of subjecting not the king, but Parliament to constitutional discipline. Subsequent political development would attempt to ensure that, while Parliament would remain and grow as the institution of legislation and of popular representation, the power of Parliament itself should not become absolute, and Parliament should be subject to the same rules of underlying constitutional precedent which had previously been formulated to discipline monarchs.
This was the background from which America's Founding Fathers drew both fear and inspiration: fear of re-creating a new autocratic monarchy or presidency, and inspiration for the creation of a new kind of government, a government representing its people not dominating or oppressing them.
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Constitution in the New World
When the thirteen British colonies in North America declared their independence in 1776, they laid down that governments are instituted among Men, deriving their just powers from the consent of the governed. In so doing they were consciously echoing the words of the Great Charter which King John had sealed 561 years before, wherein he had undertaken that no tax may be levied in our kingdom without its general consent.
However, while England had for centuries been intent on limiting the power of the absolute monarchy, American constitution-writers in 1787 now focused on limiting the power and potential danger of the new "absolute ruler" – Congress, and the power of federal government institutions generally. This they sought to achieve not only through constitutional provisions and the Bill of Rights, but also through the celebrated "checks and balances" whereby two Houses, and the President as Executive, exercise discipline and restraint over one another. The judiciary was also placed to act as a restrictive force; indeed the US Supreme Court has traditionally seen itself as the ultimate discipline upon government power, and champion of the citizen against government excesses.
The supremacy of the constitution over any and all branches of government was seen by America's Founders as the essential assurance of orderly and disciplined government, a view clearly described by Mr Hugo LaFayette Black, Associate Justice of the US Supreme Court, 1937-1971.
"The form of government which was ordained and established in 1789 contains certain unique features which reflected the Framers' fear of arbitrary government and which clearly indicate an intention absolutely to limit what Congress could do.
"The first of these features is that our Constitution is written in a single document. Such constitutions are familiar today and it is not always remembered that our country was the first to have one. Certainly one purpose of a written constitution is to define and therefore more specifically limit government powers. An all-powerful government that can act as it pleases wants no such constitution – unless to fool the people. England had no written constitution and this once proved a source of tyranny, as our ancestors well knew. Jefferson said about this departure from the English type of Government: Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction.
"A second unique feature of our Government is a Constitution supreme over the Legislature. In England, statutes, Magna Carta, and later declarations of rights had for centuries limited the power of the King, but they did not limit the power of parliament. Although commonly referred to as a constitution, they were never the supreme law of the land in the way in which our Constitution is, much to the regret of statesmen like Pitt the elder. Parliament could change this English Constitution; Congress cannot change ours. Ours can only be changed by amendments ratified by three-fourths of the States.
"A third feature of our Government, expressly designed to limit its powers, was the division of authority into three co-ordinate branches, none of which was to have supremacy over the others. This separation of powers with the checks and balances which each branch was given over the others was designed to prevent any branch, including the legislative, from infringing individual liberties safeguarded by the Constitution.
"All of the unique features of our Constitution show an underlying purpose to create a new kind of limited government."
[Completion of the Constitution was followed shortly after by James Madison's proposed ten additions or Amendments, these first ten Amendments becoming collectively known as the Bill of Rights. Mr Justice Black continues:]
"Central to all of the Framers of the Bill of Rights was the idea that since Government, particularly the national government newly created, is a powerful institution, its officials – all of them – must be compelled to exercise their powers within strictly defined boundaries. As Madison told Congress, the Bill of Rights' limitations point sometimes against the abuse of the Executive power, sometimes against the Legislative, and in some cases against the community itself; or, in other words, against the majority in favor of the minority.
"Madison also explained that his proposed amendments were intended to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode.
"Mr. Madison made a clear explanation to Congress that it was the purpose of the First Amendment to grant greater protection than England afforded its citizens. He said: In the declaration of rights which [England] has established, the truth is, they have gone no farther than to raise a barrier against the power of the Crown; the power of the Legislature is left altogether indefinite. Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, came in question in that body, invasion of them is resisted by able advocates, yet their Magna Carta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed. The freedom of the press and rights of conscience, those choicest privileges of the people, are unguarded in the British Constitution.
"It was the desire to give the people of America greater protection against the powerful Federal Government than the English had had against their government that caused the Framers to put these freedoms of expression, again in the words of Madison, beyond the reach of this Government."
["One Man's Stand For Freedom" - Mr. Justice Black and the Bill of Rights - Hugo LaFayette Black: A collection of his Supreme Court opinions - Published 1963 by Alfred A. Knopf, Inc.]
