American Constitutionalism Heard Round the World, 1776-1989: A Global Perspective

2. American Constitutionalism Defined: Six Seminal Documents

15 2 American Constitutionalism Defined Six Seminal Documents America’s six founding documents were viewed from a global perspective right from the start. The Declaration was addressed, after all, to the whole world as well as to the American people. Jefferson’s prescient claim in his famous deathbed letter in 1826 established its global import: “[The Declaration is] an instrument, pregnant with our own, and the fate of the world.”1 America’s first state constitutions included concepts that entered immediately into the discourse of the transnational history of ideas. The Articles of Confederation were taken seriously by both French constitutional thinkers and members of the Opposition in the British Parliament. That the U.S. Constitution was crucial to any understanding of American constitutionalism goes without saying, but its complex system of checks and balances and its three key features were particularly subject to selective interpretation and application abroad. The Federalist, the Constitution’s most enduring literary legacy, initiated a tradition of commentary that had a warm reception in France when first published. Finally, the Bill of Rights that completed the Constitution was viewed as linked to the French Declaration of 1789 and the English bills of rights. Although it is true that French constitutionalism exercised a greater influence worldwide after 1789, Carl J. Friedrich was correct when he concluded that from the beginning there was “almost universal enthusiasm for the American enterprise among forward-looking people.”2 At the same time, the six documents were national texts whose primary purpose was to help create a new government for the new nation. Their Janus-faced orientation of being partly global and partly national was inherent in their makeup. To examine the contribution of each to the nation-building process is a necessary first step to understanding the American constitutionalism that, together, they comprised. 16 American Constitutionalism Defined The Declaration of Independence: A Global and a National Document The Declaration of Independence ranks as the single most important public paper ever published in the United States. Like many great historical documents, it may be interpreted in several ways. Although its message was global in part and aimed at the world at large, it also was a national document directed at the American people and rousing them to revolution. The Declaration remains the most eloquent expression of America’s core constitutional values. Its assertion that “all men are created equal” is surely the world’s most famous utterance of that constitutional principle . Jefferson’s deathbed letter predicted that now people everywhere were aware of the “rights of man” and that they would be convinced that all men were born not to be ruled by others but to rule themselves and therefore to “assume the blessings & security of self government.”3 Although the Declaration is not a constitution, it has in the course of its history exercised the force of a near-constitutional text. According to the current school of legal realists—legal historians, law professors, and lawyers—a constitutional text must be based on a positivist view of the law, establish a government grounded on its principles, contain all necessary institutions, and include a proper codification of laws.4 The Declaration met none of these requirements. Why, then, is it included as part of American constitutionalism? The answer lies in its status as a near-constitutional text: the Declaration functioned in a number of ways that approximate the role that a constitution would play. The Declaration’s statement that “these United Colonies are, and of Right ought to be FREE AND INDEPENDENT STATES,” is by virtue of that phrase a document with strong constitutional implications. By emphasizing the “rights of states” under international law, the Declaration assumed a distinctive constitutional cast. The same was true of its principle that the natural “rights of individuals” formed the basis for a duly constituted government. The Declaration conveyed also the constitutional idea of a sovereign people possessing constituent power in the government. Its statement that “governments are instituted among Men deriving their just powers from the governed” is a constitutional assertion on its face. Although the founding fathers presumably intended this argument only for themselves, the idea assumed global proportions after the Revolution. American Constitutionalism Defined 17 As David Armitage points out, the Declaration contains a declaration of the right to independent statehood as well as of the inalienable rights of individuals. Although Armitage does not consider the document a constitution, by focusing...