Ideological Origins of the American Constitution 2023

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2017 Ideological Origins The sources of the American Constitution
Madison’s preparation: Reading the sources of political philosophy and theory Cicero Locke
Classical Sources The natural degeneration of the state from republic to oligarchy to empire Virtue and the source of civil responsibility
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Higher law background of American Constitutional law ✤ Natural law: that man could discover by rational deduction an edifice of law that governed their relationship with the state and with each other ✤ Law derived in this manner was superior to law from any other source ✤ Law was not created but discovered by human beings using their reasoning.
The common law pre-existed its promulgation by judges and bound all King did not rule by divine right but was subject to the law as were his subjects King James II
Coke: Magna Carta subjects the King to the law The command of Magna Carta: the right not to subject to loss or life or liberty without due process of law A right discovered by reasons, deduced by one’s intellect, and therefore a natural right that the King could not invade
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The degeneration from republic to dictatorship ✤ Power has a pernicious and corrupting influence upon men ✤ Unrestrained there would be an inevitable degeneracy ✤ Loss of virtue culminating in loss of liberty and the rise of a dictator.
Cole and the course of empire
Enlightenmen t The Age of Reason: the rejection of dogma to be replaced by scientific inquiry Applied by Locke and others to the life of the state and its citizens Newton NATURE and Nature’s Laws lay hid in Night: God said, “Let Newton be!” and all was light.
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Only hope of preserving liberty Preservation of the British Constitution which balances the sharing of power among the crown and the king. No one element could dominate the others if each remained independent
Power of the Crown ✤ Checked by ✤ (1) the jury ✤ (2) judicial power to which even the King had to bend
Colonial view of the British government A corrupt conspiracy Crown bribing members of Parliament with offices and Parliament was losing its independence and becoming subservient to the Crown
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The British plot against the colonies ✤ Establishing a church ✤ Crown want colonies to pay share of cost of empire, particularly costs of the French and Indian Wars ✤ “Drones” (colonial officers appointed by Crown) descend on the colonies to collect taxes
British Plot ✤ Judges ✤ colonial judges are denied life tenure and serve at the pleasure of the Crown, i.e. the colonial governor ✤ Pennsylvania creates a tenured judiciary and Parliament disallows it ✤ Availability of jury trial is diminished with creation of courts (admiralty) where jury trial is not available
The hatred of standing armies History taught that tyrants seized power when they refused to disband armies upon the conclusion of wars and used the standing army to seize power Army vs. militia
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Representation ✤ 9/10 of British not represented in Parliament ✤ The “rotten boroughs”—district could have as few as 50 voters and were controlled by a family ✤ Could have same representation as large city
Representation ✤ British answer: all persons are virtually represented and member of Parliament did not speak for the district that elected him but for the nation ✤ Rejected in America: Representative is not representative of the nation but of the district that sent him
Representation in America ✤ Representative spoke for his district ✤ District could instruct him and recall and remove him if he did not obey his instructions
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America: No virtual representation ✤ A citizen is bound only by laws to which he consented because he was actually represented in the government body that passed the legislation that taxed him
Pre-existing rights ✤ The British Constitution is the source of fundamental rights that Parliament cannot contravene ✤ In a state of nature, before the creation of governments and courts, citizens had rights that pre-existed their articulation in common law or statute
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Sovereignty ✤ There could only be one sovereign ✤ British: there was one and it was Parliament ✤ American: Responsibilities of the sovereign could be divided between external and internal powers ✤ Parliament could legislate as to external powers but America could legislate its own internal affairs— everything else
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Imperium in imperio British: sovereignty cannot be divided and it is impossible for Parliament to legislate for one purpose and America another America: cannot be governed as to all matters unless represented as to all matters; American can govern itself—independence
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