Remaking Custom: Law and Identity in the Early American Republic

2. American Constitutions and American Character

2 American Constitutions and American Character Americans made their emphasis on choice and consent tangible when they created their constitutions, which represented some radical departures from their English common-law roots. Revolutionary-era Americans had little desire to form their governments in the English image. After all, they had rebelled against England’s ruling institutions. Yet, it was hard for them, even in a state of rebellion, to let go of English political forms. For Anglo-Americans, a constitution was not only a frame of government, but also a firmly entrenched part of their identity and a marker of their polities ’ character. According to Sir William Blackstone, the English Constitution protected the “absolute rights” of “even the meanest subject” from the arbitrary and despotic power that characterized the continental European monarchies. This “spirit of liberty” was “so deeply implanted” in the English Constitution that it had, over the centuries, protected Englishmen from the inevitable periods of oppression by “overbearing and tyrannical princes.”1 Of course, the legal scholars of post-Revolutionary America did not share Blackstone’s confidence that the English Constitution afforded those protections . Many of the new nation’s legal scholars had been involved on some level with the framing of their independent governments. They were obsessed with the question of how the King-in-Parliament could have assumed so much power and therefore set out to teach the new generations of lawyers about the causes and evils of England’s oppression. They also emphasized the innovative safeguards built into American constitutions to prevent such a consolidation of power in one branch of government.2 Though early national legists did not provide many new insights in terms of republican 32 | Remaking Custom political theory in their treatises and lectures, they continued to help define America’s identity by echoing the republican sentiments and principles on which framers had based their new governments. While they recognized the law and the Constitution’s common roots, Americans took a different view of constitutions than the view prevailing before the Revolution. Although England’s “unwritten” Constitution actually consisted of a series of documents, such as the Magna Charta (1215), the English Bill of Rights (1689), treatises, essays, judicial reports, oral tradition , and certain assumptions about the rights and liberties of Englishmen , the decentralized nature of England’s Constitution created conflicting notions of the Constitution’s meanings. This lack of clear understanding was, in part, responsible for the Revolution. In order to avoid a repeat of this confusion, Americans of the early republic conceived of their written constitutions as expressions of the central premises on which their societies rested. Besides putting the American frame of government in writing, the constitutions also placed the American people’s collective character in tangible form. That character had existed before, but now men like James Kent, Zephaniah Swift, and St. George Tucker could not only tell their students and readers about the framers’ ideas, but they could also show their audience these notions of a free and equal society created by and for the people. The English may have been perfectly comfortable with unwritten protections enforced by the power of time immemorial, but American legists like St. George Tucker believed that a constitution should have more than mere custom behind it. The Virginia jurist, drawing upon the American colonists’ pre-Revolutionary experience with the metropolitan government, warned that the absence of a set of written regulations endangered social rights. The unwritten English Constitution had “nothing of [the] visible form about it,” and therefore its limitations of governmental powers were “uncertain.” In America, however, the Revolution had given birth “to this new political phenomenon: in every State a written constitution was framed . . . and adopted by the people, both in their individual and sovereign capacity.” For the first time in its history, Tucker boasted, the world “saw an original written compact formed by the free and deliberate voices of individuals disposed to unite in the same social bonds.” Within these written compacts was the concept of sovereignty of the people and the responsibility of their public servants to follow the people’s will. The government’s power had limits, outside of which public servants could not venture without offending the greater American Constitutions and American Character | 33 power, that of the people.3 The value of a written constitution, according to Tucker, lay in its use as a “beacon to apprise the people when their rights and...