What were they thinking? Principles of American Constitutionalism


“Tis funny about th’ constitution,” said Mr. Dooley, the legendary, philosophical Irish bartender created by Finley Peter Dunne. “It reads plain, but no wan can undherstant it without an interpreter.”

The Supreme Court is the final interpreter of the Constitution, but since the dawn of the republic, Americans have engaged in spirited, often heated, debates – constitutional conversations – about how it should interpret the Constitution. This is not surprising for a nation whose revolutionary origins lay in fundamental disputes with England about the nature, conception and purpose of constitutions. Arguments about the meaning of the Constitution, it seems, are in our DNA.

In the United States, we encourage well-informed constitutional conversations. They are vital to the health and welfare of the republic. An informed citizenry engaged in public debate, the founders believed, could improve governmental programs, policies and laws with valuable insights, criticisms and recommendations. They could expose governmental violations of the Constitution and thus preserve governmental restraints and defend Americans’ rights and liberties. At bottom, a well-informed citizenry, with a working grasp of constitutional principles and provisions, could hold government accountable to the rule of law.

Americans rightly declare their affection, admiration and even reverence for the Constitution, but too few can claim a working knowledge of it. Civic literacy is alarmingly low. Many citizens, for example, cannot name the rights protected in the First Amendment, the justices of the Supreme Court, or explain how the Electoral College works and key historical events that shaped our nation and influenced constitutional development.

John Adams, a titan of the founding period, enshrined in the Massachusetts Constitution of 1780, which he drafted and which remains the world’s oldest written constitution, words that remind us of our civic responsibility: “A frequent recurrence to the fundamental principles of the constitution,” he wrote, “is absolutely necessary to preserving the advantages of liberty and to maintain a free government. The people have a right to require of their lawgivers and magistrates an exact and constant observance of them.”

Among those “fundamental” principles is the first principle of American Constitutionalism: government has only that power granted to it by the Constitution. As Justice Hugo Black wrote in 1957, in Reid v. Covert, “The United States is entirely a creature of the Constitution, its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution.”

Much flows from this original premise. Congress, for example, may not pass laws that violate the Constitution or the Bill of Rights. A president, moreover, may not assert powers not granted to the Office of the Presidency, which means that the chief executive cannot lay claim to absolute or unlimited powers. The judiciary is bound to say what the law is, not what it wishes the law to be.

The cornerstone of our system was set forth in 1761, by the brilliant Revolutionary War attorney James Otis Jr. in the landmark Writs of Assistance Case. In his argument to the court, Otis introduced a radical, distinctly American conception of what constitutes a constitution. In contrast to the English idea of a constitution, which reflected governing practices and a loose assemblage of all the laws that had been enacted across the centuries, Otis asserted the revolutionary idea that a constitution grants and limits all governmental power. Otis’ argument, beyond English conceptions, stunned the judges, and he lost his case, but he won a historic victory.

Adams was a spectator in court that day, because he wanted to observe the young firebrand lawyer at work. He said of Otis’s argument, “then and there, the child Independence was born.” Otis had supplied the colonists with a powerful intellectual tool with which to challenge English laws that they perceived to be arbitrary and oppressive.

Otis did not live to see the implementation of his idea by the framers of the Constitution, but his influence was undeniable. While opinions about the meaning of the Constitution would vary, no official could claim authority beyond it. As president, George Washington was at pains to explain in letters to friends that he sought, more than anything else, to avoid being characterized as a “usurper” – a president who exceeded the limits of his constitutional authority.

The words and deeds of Adams and Otis and Washington inform our understanding of the principles of the Constitution to this day. We are reminded to refer to them, frequently.

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