James McClellan’s seminal book
Liberty, Order, and Justice is as important to the history and roots of American constitutional government as Russell Kirk’s
Roots of American Order is to American political history. No other book that I am aware of does as well a job in presenting an engaging history of the American constitutional order and of presenting a wealth of information on the constitutions of ancient
Greece and
Rome, the English natural law and natural rights traditions, and the formation of the American political conscience. The key documents that helped shape what would later become the American political spirit, including the
Magna Carta and the English Bill of Rights, are discussed in prose so engaging that it makes it difficult for the reader to put the book down. This book is an excellent choice for anyone interested in American constitutional history.
The following is a summary overview of McClellan’s treatise:
Introduction
McClellan’s work deals with the principles and characteristics of the American political order by familiarizing readers with the basic principles of the Constitution. Resting on the assumption that “in order to achieve liberty, order, and justice, we must first establish limited constitutional government” (p. xx), the book examines the constitutional foundations of the nation by looking to the English origins of the American Constitution, the first Constitutions of the American States, and the principles that pervade the American Constitution, as well as the interpretation and process for the amendment of the Constitution. Throughout the book, McClellan pays special attention to the separation of powers and the limits placed on the federal government by the Constitution.
Part 1. The Constitution’s Deep Roots
McClellan begins by setting down the four primary characteristics of a good constitution: (i) to “provide for stability and continuity in the governing of a country”; (ii) to “restrain government from assuming powers that rightfully belong to other political entities or to families or individuals”; (iii) to “establish a permanent arrangement that enables public officials and others with political authority to represent the people they govern”; and (iv) to “hold public officials directly accountable to the people” (p. 6-7). McClellan goes on to examine the constitutions of the Greek and Roman civilizations that the American Founders would have studied. Although the American Founders could trace the values of republicanism and political virtue that imbued their young republic, the principles of ancient
Greece and
Rome cannot fully explain the American experiment. The American Founders found many shortcomings in the ancient constitutions, which did not fully account for man’s nature. The Founders instead turned towards an English heritage to animate their political order.
The American Constitution, which was
evolutionary rather than revolutionary, drew many of its precepts from English traditions.
America’s legal order was in many ways a continuation of
England’s common law, which
America modified according to its own circumstances. For example, although
America inherited the English distinction between cases at common law and cases at equity, the Founders allowed for “the fusion of law and equity in the Supreme Court” (p. 38). In like manner, although
America, assigned a role to a representative legislature modeled after the English Parliament in the enactment of laws, it rejected the English principle of legislative supremacy, and instead subjugated the American legislature’s laws to the scrutiny of an independent judicial power.
The new American republic can thus be contrasted with the republic that arose in
France after the French Revolution. Whereas the American founders “never thought of repudiating their American past, their British past, or their classical past” (p. 52), the French Revolution, in the eyes of Edmund Burke, “sought a radical break with the past and [attempted] to create a whole new society based on visionary theories of government” (p. 53). The framers of the American Constitution, in contrast, sought to ground their ideas in the political and moral heritage of Hebraic, classical, and British cultures” (p. 52). As for the lawfulness, character of the conduct, quality of the object, and compass of resistance of the American and French Revolutions, the German diplomat Friedrich Gentz observed that “’every parallel’ drawn between the French and American revolutions ‘will serve much more to display the contrast than the resemblance between them’” (p. 57).
Part 2. America’s First Constitutions and Declarations of Rights
The American colonists adopted the English system of representative government, but introduced a residency requirement for elected representatives and did not have an aristocracy-based upper chamber. Furthermore, the American experiment included an element of local self-government that was stronger than that of
Britain and continental
Europe.
In 1607, lured by tales of great wealth, English settlers founded
Jamestown. In 1620, Pilgrims arrived to
Plymouth, Massachusetts, seeking religious liberty, and later being followed by all dissenting Protestants. Agreeing to submit themselves to laws enacted by a self-governing body, the settlers formed the Mayflower Compact, which “marks the introduction into the American colonies of a compact theory of government which would later serve as the basis for both popularly based State constitutions and the United States Constitution” (p. 97).
Because the colonies were viewed by
Britain primarily as a commercial enterprise,
Britain was not much concerned with political control or the administration of the colonies. The American colonies were thus largely left to self-government. Local government in the form of townships in New England and counties elsewhere played such a significant role in the development of the American political system that de Tocqueville cited them as “a major reason for the successes of the American democracy” (p. 108).
Although the Americans were prosperous under British rule, England’s new tax impositions and restrictions on colonial commerce in 1763 marked an “important turning point in Anglo-American relations” (p. 111). The Americans questioned the constitutional basis of Parliament’s actions and, reflecting on the nature of free government, concluded that their only recourse was in secession (p. 112). In response to the Stamp Act of 1765, the colonies sent delegates to New York to draft a statement of colonial grievances, arguing that “Parliament had exceeded its authority in passing the Stamp Act because the colonies, not being represented in Parliament, could be taxed only by their own assemblies” (p. 113).
A string of events following thereafter ultimately led to the drafting of the Declaration of Independence to justify the separation and enumerate the abuses of the King against the colonies. Prodded by Thomas Paine’s Common Sense, the Americans announced on July 4, 1776 their decision to separate and announced a series of natural rights (life, liberty, and the pursuit of happiness) and constitutional, common law, and charter rights to which the American colonists were entitled.
Although Jefferson, the principle author of the Declaration, did not set out “to find out new principles, or new arguments never before thought of,” but rather, to summarize ideas that had at the time been recognized, McClellan argues that the Western natural law tradition beginning with Aristotle offers a very different conception from the contractual theory embodied by the Declaration. Whereas the former tradition suggests that man’s natural state is one of family and community, the latter tradition resonates a great deal with the Enlightenment thinkers, especially Locke, which suggests that man’s natural state is a state of nature where “all men lived not in family units or villages but … [r]oaming the plains and forests at will, each man … free to come and go as he pleased” (p. 128). In the state of nature of Locke and Hobbes, men came together to form civil society and government only to secure their natural rights. They were free to dissolve government when it failed to protect their natural rights. We can thus conclude that, although the founders believed they were invoking principles from a long-standing Western tradition, the thinkers that were being quoted stood in tension with this tradition. McClellan resolves this tension by arguing that the founders believed that they were invoking the long standing Western natural law tradition, but had confused this by implementing natural rights terminology.
At about the same time as the Declaration Independence, the Articles of Confederation were written. The Articles, which served as a constitution for the united colonies, were agreed upon by Congress on November 15, 1777. Two days later, they were submitted to the State legislatures for ratification, and all of the states ratified them within by 1781. The Articles took effect on March 1, 1781, establishing the “
United States of America” while preserving the “sovereignty, freedom and independence” of each of the individual States (Arts. I-II). The States joined together through the Articles in order to provide for “their common defence, the security of their Liberties, and their mutual and general welfare” (Art. III). The Convention would later give way to the Convention in
Philadelphia in 1787 that gave birth to the United States Constitution.
Part 3. The Achievement of the Philadelphia Convention
In the summer of 1787, fifty five delegates charged with the task of revising the Articles of Confederation and putting the government on a “sound financial footing” (p. 243) gathered together in
Philadelphia’s Constitutional Convention. The delegates quickly discovered that in order to “form a more perfect union,” the Articles needed to be completely overhauled and replaced with a new Constitution.
The first proposal for a new political system was the Virginia Plan, which received resistance from opponents of centralization and delegates from the smaller States. Alexander Hamilton in turn proposed a plan that would have given even more power to the central government in order to restrain “the amazing violence and turbulence of the democratic spirit” (p. 260), but his plan received even less support than the Virginia Plan. Many delegates, wishing to reserve most political power to the States, instead supported the New Jersey Plan, which sought to improve the Articles of Confederation rather than write a new constitution. Although the Virginia Plan ultimately won over the New Jersey Plan, the “victorious supporters of the Virginia Plan … saw that if they wished the delegations from all States to sign a new Constitution, they must make important concessions” (p. 263).
The large and the small states ultimately came to an agreement known as the “Connecticut Compromise,” whereby all states would have the same number of representative in the Senate and the number of representatives in Congress would be based on each state’s size. The narrow victory that came out of the Connecticut Compromise is one that has “endured for two hundred years” (p. 264). The Constitution established a strong Chief Executive independent of the Legislature and a Judiciary independent of the Executive.
Regarding slavery, the delegates forbade Congress from interfering with the importation of slaves until 1808, at which point Congress could prohibit the importation (see Art. I, § 9 of the Constitution). Under the “Three-Fifths Compromise,” the delegates also allowed the States to include three-fifths of their slave population in order to establish representation in the House of Representatives: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons” (Const., Art I, § 2).
Part 4. Basic Constitutional Concepts: Federalism, Separation of Powers, and Rule of Law
a) Federalism
The American system of federalism divides political power between the federal government and the States. Article I of the Constitution enumerates the specific delegated and implied powers of Congress, both exclusive and concurrent, which include the power to collect taxes, to regulate interstate commerce, to establish bankruptcy and citizenship laws, to coin money and punish the counterfeiting thereof, to establish Post Offices, to declare war, to support armies and a Navy, to establish a federal seat for government, and to “make all Laws which shall be necessary and proper for carrying into Execution” these enumerated powers (Art. I, § 8). Congress was not, however, permitted to prohibit the importation of slaves prior to 1808, to suspend the Writ of Habeas Corpus, to impose bills of attainder or ex post facto laws, to tax the States’ exports, or to grant titles of nobility (Art. I, § 9). The States were prohibited from entering into treaties, alliances, or confederations, coining money, emitting bills of credit; passing bills of attainder, ex post facto laws, or laws impairing contracts, or granting titles of nobility (Art. I, § 10, cl. 1). Furthermore, the States, without the consent of Congress, were prohibited from laying imposts or duties on imports or exports (except as it may be necessary for the execution of inspection laws) as well as from keeping troops or warships in time of peace or from entering into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded or in imminent Danger that does not allow for delay.
The Constitution establishes the obligations that the States have to the federal government and to each other as well as the obligations that the federal government has to the States. Among the obligations of the federal government to the States, Article IV requires the federal government to “guarantee a republican form of government to every State, to protect the States against invasion, and, upon request, to protect them against domestic violence” (p. 308). Article IV further prohibits Congress from creating new States from preexisting States, from combinations of States, or from parts of States, unless the legislatures of the States concerned consent.
Among obligations of the States to the federal government, the States must select presidential electors (Art. II, § 1) and “hold elections for Senators and Representatives, and to prescribe the time, places, and manner for such elections” (Art. I, § 4) (p. 309). The States are further obligated to deliver up fugitives charged in any state with treason, felony, or other crimes to the State from which he has fled. They are prohibited in certain circumstances from discriminating against out of State citizens under Article IV.
b) The Separation of Powers
The American system of separation of powers is not a pure separation of powers because the functions of each branch of government overlap. Each branch was permitted to touch upon some of the affairs of other branches. For example, “the President (executive branch) was given a part in the legislative process, through his power of veto and his power to make recommendations in ‘State of the Nation’ addresses to the Congress. On the other hand, the legislative branch, through the Senate, was given some power over the executive branch, in that treaties and presidential appointments to major administrative posts and to the judiciary must be confirmed by the Senate” (p. 331). This overlapping of functions formed a system of checks and balances within the American government.
c) The Rule of Law
The American constitutional system is based on rule of law, sometimes expressed as “a government of laws, not of men” (p. 347). This is a principle that was inherited from medieval
England. As Henry de Bracton wrote in the thirteenth century, “The king himself ought not to be under man but under God, and under the Law, because the Law makes the king” (p. 348). Under this principle, no man, government, court, Legislature, or President is above the law.
Part 5. Defending the Constitution: The Struggle over Ratification and the Bill of Rights
After the Constitution was drafted by the delegates of the Constitutional Convention, it became the object of a national heated debate of the States considering its ratification. The two factions that dominated the debate were the Federalists, who supported the Constitution, and the anti-federalists, who supported a federal form of government under the older Articles of Confederation. Led by James Madison, Alexander Hamilton, and John Jay, the Federalists launched a campaign to sway popular opinion in favor of the new Constitution. They were ultimately successful when, on June 21, 1788,
New Hampshire became the ninth ratifying State, thus establishing the Constitution as the supreme law of the land of the states so ratifying it (Const., Art. VII). Within the next two years, the remaining four states—
Virginia,
New York,
North Carolina, and
Rhode Island—ratified the Constitution as well. The Federalists emerged victoriously from the national debate on the Constitution, but they did not do so without important concessions to the Anti-Federalists.
a) The Anti-Federalist Persuasion
The Anti-Federalists opposed the Constitution on a number of grounds, but their chief objection was that it gave too much power to the Federal government. As one Anti-Federalist put it, “some of the powers of the Legislature are ambiguous, and others indefinite and dangerous” (p. 389). Another wrote that the new system was “a consolidation of all the States into one larger mass, however diverse the parts may be of which it is composed. The idea of an uncompounded republic … containing six million white inhabitants all reduced to the same standard of morals or habits, and of laws, is in itself an absurdity and contrary to the whole experience of mankind” (p. 386). The Anti-Federalists further argued that the Constitution established a small aristocracy that would bind the nation with their decisions made in “some distant, yet-to-be-built city far removed from the watchful eye of the people they represented” (p. 387). The system was “an invitation to despotism” (p. 387).
b) The Federalist Response
The Federalists, in response, argued that the federal government under the new Constitution was limited to a series of enumerated powers that provided the nation with only the “bare essentials of government” (p. 393). Even the power “to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare” was not an “unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare,” but was rather a license to the federal government to tax and spend only “to carry out one of its enumerated powers” (p. 398).
The Federalists contrasted the President under the new Constitution from the English monarch: “the President was elected by the people for four years, whereas the King is a perpetual hereditary prince; the President can be impeached and removed from office, whereas the person of the King is ‘sacred and inviolable’; the President has a qualified veto, whereas that of the King is absolute” (p. 400). As for the judiciary,
Hamilton said that it was “beyond comparison the weakest of the three departments of power” (p. 401).
The Federalists further argued that a Bill of Rights was unnecessary in a federal government of limited enumerated powers that in no way denied the rights or powers retained by the States or the people. In a democratic nation, Hamilton argued that a Bill of Rights had “no application to constitutions professedly founded upon the power of the people,” as in the case of America, because “in strictness, the people surrender nothing, and as they retain everything, they have no need of particular reservations” (p. 402).
c) The Bill Of Rights
The Anti-Federalists nonetheless remained fearful of an overpowering federal government, and insisted that civil liberties be guaranteed in the Constitution. A Bill of Rights enumerating basic freedoms of all American citizens was thus added to the Constitution in 1791. Yet as the Ninth Amendment attests, the freedoms protected from federal infringement are not limited to those enumerated in the Bill of Rights: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” (Const., Ninth Amd.). Although many have argued that the Bill of Rights is superfluous, many others have felt that it served as an important guarantee against a powerful federal government that would inevitably transgress its limited enumerated powers.
Part 6. Interpreting and Preserving the Constitution
At the American founding, because written constitutions were unprecedented, there was no body of legal literature on constitutional interpretation. Members of the American federal judiciary thus created their own rules of interpretation, based on principles used for the interpretation of statutes or treatises that were derived in ancient law, Roman law, and English law. McClellan writes that the basic task of the courts when interpreting laws, treatises, or constitutions is to determine the legislature intent. “[W]hen the words are dubious and the alternative means of construction have failed to uncover the intent of the lawmakers,” Blackstone wrote, judges must employ “reason and spirit of the law” to derive the underlying intent (p. 467). This role of the judiciary in interpreting the law, and not in making the law, was well articulated by Sir Francis Bacon, who warned the judges of England “to remember that their office is jus dicere, and not jus dare—to interpret law, and not to make law, or give law” (p. 475).
The American Constitution departed from the English tradition of legislative supremacy whereby Parliament serves as the ultimate arbiter as to whether its acts are constitutional. The American Constitution, in contrast, through the Supremacy Clause, establishes a hierarchy of laws with the Constitution as the supreme law of the land, “followed by Federal laws and treaties, descending finally to State constitutions, State laws, and local ordinances” (p. 477).
The Supreme Court established early on the principle of judicial review. In the controversial case Marbury v. Madison (1803) (Marshall, C.J.), John Marshall, while Secretary of State, failed to deliver to the plaintiff Marbury his commission to become a justice of the peace in D.C. At the time, Congress passed the Judiciary Act of 1789, which allowed parties to go to the Supreme Court to demand writs of mandamus that order a government official to fulfill his duty. Marbury went to the Supreme Court to demand the writ, and the Court was called upon to determine whether the Judiciary Act of 1789 was validly in keeping with the Constitution.
Marbury begins his line of reasoning, stating that “The question, whether an act repugnant to the Constitution, can become the law of the land … is a question deeply interesting to the
United States” (p. 481). He goes on to conclude that the Act
impermissibly expanded the original jurisdiction of the Court, which was constitutionally limited to cases involving ambassadors, other public ministers and consuls, and States.
Marshall therefore refused to grant the writ to Marbury and argued that the Supreme Court must go to the Constitution on its own when interpreting it, and not rely on interpretations of other branches of government.
In our modern day,
Marbury has come to be interpreted as stating that the Supreme Court is the ultimate authority on what the Constitution says. Yet nothing in
Marbury suggests that the Judicial Branch can do any better a job than any of the other branches in interpreting the Constitution. Some have argued that each branch of government is obligated to read and abide by the Constitution. For example, if the President reads the Constitution and concludes that it means something different than what the Supreme Court says, he is obliged to follow his own thinking. The Supreme Court has disagreed, holding that the President and state courts and governors are obliged to follow the Court’s interpretations of the Constitution over their own. In
Martin v. Hunter’s Lessee (1816), for example, the Virginia Supreme Court refused to comply with a U.S. Supreme Court order to enter a judgment pursuant to the federal Judiciary Act of 1789, which subjected state court decisions regarding the validity of federal laws to the judicial review of the United States Supreme Court. The Virginia Supreme Court, although it agreed that state judges were required under Article VI to obey the Constitution, laws, and treaties of the
United States, it believed that state judges were not bound to obey the Supreme Court’s interpretations of them. The Virginia Supreme Court argued that such a requirement would infringe on state sovereignty. Justice Story, writing the majority opinion, sharply disagreed, writing that the Constitution is “crowded with provisions which restrain or annul the sovereignty of the States” and that “the doctrine of absolute State sovereignty insisted upon by the
Virginia judges ran counter to the whole theory of Federal supremacy” (p. 483). He held that Supreme Court is the
ultimate arbiter of constitutional questions under article III. With
Marburgy and
Hunter’s Lessee as its precedents, the Supreme Court may today strike down any federal, state, or local law that it finds to be unconstitutional.
The States and the people do, however, retain some control over the interpretations of the Constitution laid out by the Supreme Court. They may enact amendments that curb what the Court may decide on certain matters or they may altogether remove the Court’s power to hear certain questions by curbing the Court’s jurisdiction.
Part 7. Changing the Constitution
In Part 7, McClellan gives an overview of the process for amending the Constitution and of the American Bill of Rights, as well as explanations of the Amendments added since 1791, their history, and how they came into being. The Amendment process, notes McClellan, is the most formal of the various ways in which our “living” Constitution may be changed. But the Constitution may also be changed “as a result of custom, practice, and judicial decisions” (p. 551), but “[m]ost changes of this nature are supplementary rather than revisionary, and may be seen as additions to, or refinements of, a particular provision of the Constitution” (p. 552). For example, the advent of motion pictures, radio, and television, changed the scope of the First Amendment without changing the principle instituted therein.
The framers understood that “A constitution cannot long endure if it may be amended too easily or too swiftly” (p. 560). The process of amending the Constitution therefore “prefers evolutionary to revolutionary change” (p. 561) by requiring extraordinary majorities. The framers also understood that in order to protect the sovereignty of the States, they should play a commanding role in the amendment process. Even if Congress chooses not to propose an amendment, the States may “initiate an amendment of their own by the convention method, ratify it on their own authority, and circumvent the Congress” (p. p. 562). Despite the efforts of the framers to protect States’ rights, they could not foresee the Supreme Court’s doctrine of “incorporation,” which would apply to the States the restrictions established in the Bill of Rights, which were originally intended to apply to the federal government (p. 573). This doctrine came through the Fourteenth Amendment, which established that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The various Amendments demonstrate the great extent to which the people, through their States, have been active in effecting change in the
American Republic. Perhaps the most interesting story offered in the description of the Amendments is the explanation of the Twenty Second Amendment, which establishes that “No law varying the compensation for the services of the Senators and Representatives shall take effect, until an election of Representatives shall have intervened.” McClellan writes that the amendment came to be passed “largely because of the diligence and perseverance of a young college student” (p. 592). Gregory D. Watson, an undergraduate economics major at the University of Texas at Austin, stumbled upon the Congressional Pay Amendment and decided to write a research paper on it where he argued that “a proposed amendment remains valid for ratification indefinitely, unless Congress has placed a time limit upon it” (p. 592). Although Watson’s college instructor was unpersuaded, Watson, after leaving the University, “waged a lonely ten-year battle to generate support for the Amendment. Truly a one-man lobbying firm, Watson encouraged State legislators throughout the
Union to support the Amendment. One by one, first
Maine in 1983, then
Colorado in 1984, the States rallied to the cause.”
Ten years later, Watson triumphed when the Archivist of the
United States certified in 1992 that the Pay Amendment “had been duly ratified by three-fourths of the States” (p. 592). This was the story of one individual’s “prophetic vision, indomitable spirit, and hard labor” (p. 592). It shows that
America truly is a nation of the people; even one person, with no apparent political power or office, may make a difference.
Conclusion
McClellan concludes the volume by highlighting the many advantages of the Constitution, including the power of a Federal Union held together by the Constitution, which has given rise to an internal American free-trade area that has “produced remarkable and enduring material prosperity” (p.594). However, he warns that political order and liberty in
America may not endure if the moral order disintegrates or if political participation on the part of citizens ceases. Yet if enough Americans are willing to work hard at it, “there is good reason to expect that the
American Republic will endure for many more centuries” (p. 600).
