Contract and Consent: Representation and the Jury in Anglo-American Legal History

9. Nation-Making and the American Constitutional Process

185 The great distinction and historic achievement of the American Constitution was to weld the disparate, shambling cluster of the self-interested original states into a national union. In other words, to create a nation of shared principles. The idea that a true political community was to be defined as a community of principle had advocates among the many di≠ering thinkers whose names have been variously linked with the concept or the forerunners of the Enlightenment, notably Machiavelli, Harrington, Locke, Montesquieu, Burlamaqui, Hume, and Rousseau.1 In the longest of long runs, as Abraham Lincoln was to insist, when he warned Americans that a “house divided against itself cannot stand,”2 that principle would determine whether the United States could survive as a nation. American colonists in their defiance of Parliament insistently based their opposition on principles of legal right. Self-interest might be the driving force, but the thrust of self-interest was protected by the glittering armor of law. The Union formed by the Articles of Confederation, however, was a product of political necessity before it was an embodiment of republican principle. The empire from which the Americans had separated themselves did not work to the rules of a written constitution, either domestically or imperially; as colonial dissent turned to opposition and opposition to defiance, any community of principle uniting Britain and its colonies became increasingly di∞cult to discern. The states for their part had many di≠erences and rivalries among themselves, but they also had the advantages of much common experience. They shared long-established institutional habits of self-government through representative bodies, and they 9 Nation-Making and the American Constitutional Process Contract & Consent 186 had agreed to the specified intentions embodied in the Articles of Confederation and the principles that were knit into the procedures of the common law. A common legal language had the inestimable advantage of enabling them to agree without internal dissension in characterizing their grievances as violated rights and their expectations as legal entitlements. But permanent unity would require more than a sense of shared indignation; it meant shared principles. The Articles proclaimed the aim of perpetual union, an aspiration that already carried a strong commitment to the idea of an American nation. But the Articles proved unequal to the needs and responsibilities of an intercolonial government. To mold the confederated states into a permanent union and the union into a nation, a written constitution was indispensable. This made it essential to develop a consensus on the basic principles to which such a union would subscribe. American national sentiments already sprang from shared history as well as the recent experience of war. But so had ominous elements of a centrifugal particularism. If unity was to be achieved it must now grow from acts of will. The formal foundations of national unity were laid when a shared understanding of the common law and a principled recognition of common interests were transmuted into a federal Constitution that declared itself, in words recalling Magna Carta, to be “the supreme Law of the Land.” In appearance, however, the written Constitution that emerged from Philadelphia provided first and foremost a structural and procedural plan of government. Apart from a few grand words at the beginning, it still lacked agreement on vital political principles. But such a plan could not achieve operational unity without a certain measure of moral agreement, as was implied by the plan itself—representation, for a leading example, gave government what we may call the machinery of consent ; another prevailing principle was to be embodied in the supremacy of federal law. But where di≠erences of principle threatened the prescribed procedures, the best hope that supporters could o≠er in advocating adoption of the Constitution was that the passage of time would work to unify rather than to divide.3 Over time, di≠erences of principle have come to be addressed more frequently in the Supreme Court than in legislatures, and in the eyes of many, this has created severe tensions with the constitutional settlement on which national unity originally rested. Such concerns remain central to American politics because, in a sense that would have been di∞cult to understand in France or Britain, the very Nation-Making and the American Constitutional Process 187 nation incorporated as the United States of America was a creation of its own Constitution. When George Washington was about to...