Rise of Modern Constitutional Consciousness

The Writs of Assistance Case, the standing-army controversy, and imperial policy as a whole sharpened American thinking about the differences between what was legal and what was constitutional. There seemed little doubt that the actions of Parliament during the 1760s and 1770s were legal; that is, Parliament did what it was lawfully empowered to do. Colonial revolutionaries, in reacting to these measures, developed a modern constitutional consciousness that differentiated the fundamental principles of government from the institutions of government. The patriots, in short, concluded that Parliament was not the embodiment of sovereign authority and that the fundamental principles of government had to be in writing if they were to have meaning.

Written Law, Natural Law, and Social Contract Theory

American Whigs by 1776 doubted that the unwritten British constitution could check Parliament's expansive powers. As John Reid has shown, they embraced the ideals of

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that document and the ancient customs that went with it, but they also concluded that an unwritten constitution was inadequate to check Parliament's expansive powers. Thomas Jefferson, for example, complained that Parliament had undertaken "to make law where they found none, and to submit us at one stroke to a whole system no particle of which has its foundation in the Common law." ²⁹

Beginning in the 1760s, Americans separated ideas about the principles of government from the product of its actions: the law. They did so by tying the idea of a written constitution to two related notions, natural law and social contract. Otis in the Writs of Assistance Case had injected natural law theory into revolutionary discourse, and it grew in breadth thereafter. Natural law theory held that the positive law of a state, in order to be regarded as worthy of being obeyed, had to embody or affirm certain eternal principles inherent in the structure of the universe. In the seventeenth century several English writers--notably John Locke, James Harrington, and Algernon Sidney--joined this idea to the concept of the social contract. The social contract held that an agreement existed between ruler and ruled, between government and the governed. The rulers, for their part, were obligated to secure to the people their rights and to provide for the common good; the ruled owed loyalty to the state and obedience to the specified rules. The notion of mutual bargaining, which was itself gaining authority with the rise of the commercial economy of the last half of the eighteenth century, added credibility to social contract theory. So, too, did Calvinist covenant theology.

Natural law theory and the social contract gave American public law its emphasis on limiting governmental power. If government violated the social contract and if it denied natural rights and abused public trust, the people retained a right to overthrow it. The polemical writings of Trenchard and Gordon fueled the colonists' Whiggish perspective on limited government.

On the level of formal theory, the work of John Locke did the same. Locke wrote in the immediate wake of the Glorious Revolution, and his work aimed to refute the ideas of absolute monarchy of Thomas Hobbes and Sir Robert Filmer. More than any other single work, Locke Second Treatise on Civil Government ( 1690) enunciated two critical principles of modern law. The first was that under social contract theory the ruled enjoyed a right of revolution against an arbitrary ruler. Second, Locke defined law as the command of the sovereign that depended on a concrete charter or constitution. The chief problem involved in the formulation of this tradition in the American colonies was identifying the proper basis of sovereign authority for the written document that would check the exercise of power. The final phase in the intellectual development of American public law in the days immediately preceding the Revolution turned on settling in practice the issues of sovereignty and republicanism identified by Locke's theory.

Date: 2015-01-29; view: 1019