CHAPTER SEVEN
Constitutional Empowerment
Of all the noteworthy paradoxes of the modern constitutional age, one of the most interesting is the one that highlights the seemingly schizophrenic nature of the constitutional instrument itself. A constitution is a limiting agent, a device charged with the task of restraining the various institutions of the polity by establishing rules and guidelines prior to the commencement of a new regime’s political life. But it is also an empowering agent, created for the very real purpose of ennobling or authorizing those same institutions to act in the name of the sovereign. A major theme running throughout the Federalist Papers attests to this point: Publius regularly reminds us that if the American Constitution is to be truly successful it must attend to both functions; it must simultaneously limit and “energize” the very political branches it creates. For proof, we need only consider the words of Alexander Hamilton who, writing as Publius, noted that “energy in the executive is a leading character in the definition of good government.”1
We should not be altogether surprised that the dual character of constitutions is so often shrouded behind genuine concerns about achieving a certain degree of constitutionalist government. That is, the schizophrenic nature of modern constitutions is made evident primarily because the limiting function seems so dominant at first. For many founders, politicians, practitioners, and ordinary citizens, the constitutional text represents a shield, a first line of defense against the nastiest impulses of political leaders. The demands of these various constituents are actually quite simple: a successful constitutionalist text, they say, ought to bridle the ambitions of political officials as well as the institutions they control. It should effectively manage conflict, while also ensuring that no single political branch becomes too powerful and thus too abusive.
It should hardly astound anyone that a major goal of many contemporary political regimes has been to cultivate a sense of constitutional limitation. Still, what is more telling is that the call for limitation through textual constitutionalism is now growing even louder. Polities that differ in almost every conceivable way almost universally look to the constitutional instrument as one of the primary means to prevent the rise of potentially tyrannical authority. Political draftsmen from the northern and southern hemispheres alike now rely on the principle of writtenness, of limitation through formal constitutional means, as a necessary barrier to arbitrary rule. It is not an exaggeration to suggest that there has been an almost revolutionary explosion in the birth of constitutional regimes over the last century, and part of that explosion is due to the “global faith” that polities now have in the restraining function of constitutional documents.2
But by the same token, the perception that constitutions perform the principal task of limiting political authority only captures part of the picture. Indeed, a constitutionalist text cannot adequately function if its sole purpose is to limit the power of the sovereign. It must do more. As Stephen Holmes has remarked, “In general, constitutional rules are enabling, not disabling; and it is therefore unsatisfactory to identify constitutionalism exclusively with limitations on power.”3 Earlier in the article he writes with more specificity that a “democratic constitution does not merely hobble majorities and officials. It also assigns powers (gives structure to the government, guarantees popular participation, etc.), and regulates the way in which these powers are employed (in accord, for example, with principles such as due process and equal treatment).”4 Holmes’s purpose is to suggest that one should not discount the fact that a primary function of a constitutional document is to infuse the institutions of the polity with the necessary force to operate effectively and efficiently. Constitutions, in short, empower institutions.
This chapter will explore the authorizing function of a modern constitutional text—a constitution’s role as the primary mechanism to empower public institutions to enact legitimate and credible policy in the name of the sovereign. It is meant as a companion to the next chapter, where we revisit and expand on the definition of constitutionalism. Together, these two chapters explore the issue of political power: in one instance, the need to ensure it; in the other, the need to limit it. Throughout the lengthy discussion, one central line of inquiry involves the extent to which the limiting function of constitutions is closely linked to a constitution’s empowering function and vice versa. In other words, does the fact that a constitution is charged with the task of creating a structure of political institutions and then empowering those institutions to make policy decisions in the name of the public good somehow advance its role as an instrument whose aim is to limit political authority? Similarly, does a constitution’s job to constrain or control the various institutions of the polity actually enhance its credibility, thus enabling the institutions under its watch to gain more authority? These are complex questions, and their answers may not be immediately evident. Yet they are important questions, and to the extent that we can answer them, our understanding of modern constitutional theory will be enriched. Toward that end, we begin with a story.
The Exchange Between Thomas Hutchinson and John Adams
The year is 1773, and the British colonies in America are creeping ever closer to open rebellion. The colonists have been subjected to a series of insulting taxes aimed not necessarily at commercial regulation but instead at revenue generation. The British have largely altered their policies regarding colonial taxation from ones based primarily on the need to coordinate trade among the various geographical entities to ones based principally on obtaining much-needed income. As a result (and unsurprisingly), the cry for no taxation without representation is beginning to echo throughout colonial towns and villages. To add insult to injury, within the next twelve months colonists will witness, in chronological order, the Boston Tea Party, the passage of a series of legislative enactments (dubbed the Intolerable Acts) aimed at punishing the colonists for subversive behavior, and the official commencement of armed conflict at Point Pleasant, Virginia. Dissatisfaction with the way British officials are treating colonists is starting to prompt calls for full-scale revolution. The British in the American colonies are, to put it mildly, uneasy.
At the precise moment in which tempers are flaring and British tax policies are inciting expanding circles of protestors, a higher-level skirmish is taking place. No less intense than the episodes of violence on the streets of colonial America, this battle is being waged not with guns but with words. It is an intellectual exchange of the first order, and it pits some of the ablest constitutional and legal minds of the time against one another. Letters are being written by colonists decrying the lack of representation in the British Parliament, while newspapers are running editorials that highlight abuses by the British Crown. Pamphlets are being distributed to ever-widening audiences that seek to rally support for independence and for the general cause of liberty. Thomas Paine’s Common Sense, in fact, becomes the widest read publication of the time. Meanwhile, on the other side of the Atlantic, British officials are equally impassioned about the virtue of their philosophical and political positions. They constantly remind the colonists of parliamentary supremacy and of the fact that all in North America are subject to the British authorities. There should be little doubt that during the late colonial period, as during the early Republic just a few years later, some of the most subtle and informed constitutional dialogue took place.
One particularly famous exchange occurred between the Royal Governor of Massachusetts, Thomas Hutchinson, and John Adams, a practicing lawyer who would later become arguably the most familiar face of the revolutionary period. Adams, though not a member of the Massachusetts House of Representatives at the time, was asked by that body to respond to several constitutional arguments posed by Hutchinson. The dispute began with the announcement by Hutchinson in 1772 that from henceforth the salaries of Massachusetts’ judges would be paid by the Crown rather than, as was more customary, by the colonial legislature itself. Concerned that he was losing control over various institutions in the American colonies, the king in Parliament believed that usurping authority over judicial salaries would at least render the state courts subordinate to his command. His official position, of course, differed. Publicly, King George III stated that all judges within the colonies hold their offices only with his consent, and therefore it is both legal and appropriate for their salaries to come out of his coffers.
Several of the colony’s leaders were incensed. They claimed that the new fiscal relationship would remove any degree of independence from the state’s courts. How could colonial judges remain objective if the Crown was effectively scrutinizing their legal decisions? For more than a century the principle of self-rule had been embedded in the minds of the colonists and the political practices of the colonies. Samuel Adams, the most notorious rebel of the time, confronted Governor Hutchinson with particular demands aimed at reversing the Crown’s decree, including one that called for an open meeting with the Massachusetts colonial legislature. Hutchinson, a loyal subject of the British Crown, refused the demands. He essentially told Samuel Adams and his followers to “mind their own business,” to which Adams responded by forming powerful grassroots organizations—committees of correspondence, he called them—whose purpose was to disseminate information to other towns and cities in an attempt to fuel anti-British sentiment.5 These committees of correspondence would soon emerge in all of the colonies, and their self-declared purview over British abuses expanded. In territories across the thirteen colonies, members of the committees of correspondence were increasingly critical of a large number of British policies and actions.
But back in Massachusetts the confrontation over judicial salaries continued uninterrupted. From the perspective of the colonists, the controversy was principally about the power of colonial legislatures against that of the Royal governors and the Parliament in London. Hutchinson’s announcement that the British would control salaries and appropriations ostensibly amounted to a substantial loss of colonial authority. Consequently, the Massachusetts General Assembly issued an ultimatum. The legislative body “offered the judges their salaries in their usual form” while also “threatening to impeach them if they should dare to accept a penny from the Crown.”6 On many judicial benches around Massachusetts the choice—to risk impeachment if paid by the Crown—was alarming. On the one hand, these officers of the Court knew that to accept payment from the colonial legislature was to defy the Crown. But on the other hand, to take money from the king was to jeopardize one’s career and, if tensions escalated, to be seen as a loyalist. The talk on the street was that a relatively minor conflict of this sort might lead to open warfare. Governor Hutchinson’s response to the rising level of tension was to “call for two special joint sessions of the General Court in order to pacify the towns and to explain why Parliament must retain supreme authority over all British dominions.”7 He understood that ultimate authority resided in London, not Boston. At this point, Hutchinson commenced a theoretical and constitutional argument based on sovereignty that would be countered a few months later by John Adams.
Essentially, Hutchinson voiced concern over the wisdom of promising loyalty to two separate sovereign bodies: the colonial legislatures and the British Parliament. He insisted that it would be illogical, under any theory of good government, to permit citizens to pledge allegiance to separate representative entities. In fact, constitutional government could not be sustained if subjects could pick and choose which sovereign body to listen to. In the present case, he remarked, those Massachusetts citizens who recognized the colonial legislature as the primary institutional authority were simply ignoring the hierarchical nature of governmental power. Under a constitutional monarchy, the power of Parliament is supreme and all other offices are, in varying degrees, subordinate. He insisted that the principle of parliamentary supremacy confirmed one primary rule: that sovereignty was whole and absolute, and thus it could not be shared or divided among different offices and institutions. All British citizens, regardless of their geographical home, were subjects of the primary sovereign, and thus colonial legislative assemblies in Massachusetts (or any of the other colonies) were authorized to make policy only insofar as the British Parliament empowered them to do so.
His arguments about absolute sovereignty were (and are) powerful; indeed, they implicate the entire constitutional project. At the time they were part of a larger belief that colonial charters, those constitutional forms that established and ordered the pre-revolutionary governments, represented grants of authority that disseminated directly from the British Crown in Parliament. Conjuring up the image of the original formation of the Massachusetts colony, Hutchinson proclaimed to the Massachusetts House of Representatives that, “when our Predecessors first took possession of this Plantation or Colony, under a Grant and Charter from the Crown of England, it was their Sense and it was the Sense of the Kingdom, that they were to remain subject to the Supreme Authority of Parliament.”8 His point was that the notion of parliamentary supremacy is revealed through the act of constituting colonial charters and establishing colonial governments. The authority of the British government over and above all colonial governments is actualized by the fact that Parliament established the colonies in the first place. As Governor of Massachusetts, he is an officer of the British Empire; the original charter, in fact, declares his position. His authority is made legitimate because the British Parliament elevated him to the executive office. The colonial charter, in short, is the principal evidence that the sovereignty of the British Parliament should not be questioned. Whatever authority the colonial governments possessed was made possible because it was delegated from the original parliamentary source.
In Hutchinson’s mind, the rule of law suggests that there is but one power granting authority. It is, of course, the Parliament, he says, and thus all derivative bodies—including the colonial legislatures—are empowered only to the extent that the sovereign in Parliament grants them control. Those charters infusing colonial governments with the license to make public policy in the name of the sovereign, he claimed, maintain their legitimacy precisely because the British Parliament maintains original and exclusive authority; without Parliament’s agreeing to authorize or empower the colonial governments in the first place, those institutions cannot be considered credible.
John Adams was not convinced, at least not with the succession of power defended by Governor Hutchinson. He agreed that the colonial charters were subject to a single authority, but it is not Parliament that is supreme, he said; it is instead an altogether different source. He insisted that the colonial governments are legitimate precisely because they are beholden to British constitutional principles. It is the Constitution, Adams claimed, that represents the original and exclusive source of power. Constitutional documents—like the English Bill of Rights and the Magna Carta—occupy a position of authority even greater than the king or Parliament. His evidence? The Parliament in London (as well as the Crown) is no less accountable to those same British constitutional principles; members of Parliament are also limited by the rule of law. Thus, insofar as the tax policies that are being thrust upon colonial citizens violate those basic constitutional tenets as laid out in such provisions as those found in the historical definitive texts, the authority of Parliament to demand acquiescence defies reason. As James Otis, a powerful colonial figure of the mid-eighteenth century said, “An act against the [British] Constitution is void.”9 The Parliament is a creature of the British constitution in much the same way that the colonial charters, although drafted and distributed by Parliament, ultimately derive their power from the British constitution.
Adams’s words are clear on this principle. Speaking of the original charters granting lawmaking power to the colonial governments, he says that “the laws of the colonies should be as much as possible, conformant in the spirit of them to the principles and fundamental laws of the English Constitution, its rights and statutes then in being, and by no means to bind the colonies to a subjection to the supreme authority of the English Parliament.”10 These charters, he says, “are repugnant to the idea of parliamentary authority”; their legitimacy is tied directly to the legitimacy of a constitutional monarchy.11 Adams goes on to weave a complicated philosophical argument about the nature of sovereignty itself. He challenges Hutchinson directly on his claim that there cannot be two sovereign authorities within the same jurisdiction. No, Adams responds, there cannot; but the arguments presented by Hutchinson are flawed because they assume a faulty premise—that colonial governments are subordinate to parliamentary supremacy. Adams’s contrasting position suggests that colonial legislatures throughout the entire British colonies (and not just in North America) are subject to the same single head—the Crown—and that all institutions are accountable to constitutional principles. In response to Hutchinson’s largely rhetorical question about whether “the two legislative bodies will make two governments as distinct as the kingdoms of England and Scotland,” Adams replies: “Very true … and if they interfere not with each other, what hinders but that being united in one Head and common sovereign, they may live happily in that connection and mutually support and protect each other?”12
Adams’s main point is that all government institutions are beholden to the higher authority of the British constitution. Even King George III himself, the Massachusetts statesman argues, is subject to the general principles announced in the English constitution. The British constitution confers authority on Parliament, which, in turn, conferred authority through the colonial charters on the state assemblies; and it is these legislative bodies that control local matters, including the payment of salaries and the imposition of taxes. The legitimacy of local taxation, in fact, derives from the legitimacy of the constitution, says Adams. The Massachusetts colonial legislature is authorized to impose taxes on subjects within its jurisdiction for two reasons: first, because the legislative body has been empowered to do so through a grant of power originating in the English constitution; and second, because the practice does not violate those constitutional principles that mandate fair and reasonable representation by those constituents subject to the taxation. The primary philosophical argument by those colonists, including John Adams, who voiced opposition to the lack of representation in the British Parliament was constitutional in nature: taxing the colonies without providing an avenue for opposition amounts to an illegal act precisely because it violates one of the first principles of England’s constitutional structure.
The intellectual battle between Governor Hutchinson and John Adams helps to illuminate one of the core functions of the modern constitutional text. These organizing instruments—whether unwritten like the English constitution or parchment documents like most contemporary constitutions—are constructed to enable or energize institutions to act in the name of the sovereign. One task of a modern constitution, in other words, is to empower the political branches of the regime—to literally grant them authority—so that they may legitimately, and with some expectation of popular approval, carry on the business of ordinary politics.
The eighteenth-century argument about the flow of sovereign authority was an argument centrally about constitutional empowerment. Constitutional empowerment refers to the act of creation and distribution: a constitution creates political branches (in our historical case, the Parliament in London as well as the colonial governments) and then, by distributing various powers to them, authorizes the products of their deliberations (the allocation of salaries to state court judges). A constitutional conflict occurs when multiple institutions claim control over the particulars of a specific governmental policy. That was the case with regard to the allocation of judicial salaries: Hutchinson and Adams believed that different institutions claimed rightful authority to pay Massachusetts’ state judges. Constitutional empowerment is thus also a component of constitutional maintenance. Doubtless most framers who set out to constitute a polity imagine that their design will endure over time. A necessary factor in ensuring the durability of a constitutional order, therefore, is to produce a set of political institutions that enjoy the degree of legitimacy that derives only from the polity’s fundamental law.
Constitutional Empowerment
In a typical constitutionalist regime, absolute power originates with the sovereign (which presently often amounts to, and is described as, “the people”); but conceptually, it does not remain there. The process of constitution-making and the subsequent ratification of the text alter the relationship of the sovereign to its exclusive authority. If the sovereign begins the process with unlimited power, the constitution symbolizes the delegation—the distribution or giving up—of some of that authority to the various institutions of the polity. So, for example, the American Congress, as made clear by Article I of the U.S. Constitution, possesses certain sovereign power, while the federal executive (Article II) and judiciary (Article III) possess different sovereign power. Subordinate jurisdictions like the American states also retain certain constitutionally distributed sovereign power. To be sure, the sovereign always retains exclusive authority to abandon or scrap the current constitutional form (a practice that happens with relative frequency around the world), but as long as the present constitution remains in existence, the sovereign’s once absolute and unchecked power is both regulated and scattered. Part of that overall regulation of authority comes from the sovereign’s commitment to self-conscious limits. Insofar as the sovereign pre-commits to certain limitations on its decision-making power outlined within the constitutional text, its capacity to mandate particular policies is constrained.13 The sovereign (through its representatives in office), for example, may not legally empower government agencies to censor particular messages if the constitutional document protects the right to free speech. Similarly, the sovereign may not choose to embrace a national religious denomination if the text forbids it. Indeed, one of the primary reasons to adopt a constitutional text in the first place is to force the sovereign to agree to the self-conscious limitation of its power.
And yet another equally valid reason to adopt a constitutional text is to do just the opposite: to legitimize or authorize those institutions fashioned by the constitutional design, and thus to lend credibility to the practice of everyday politics. The transfer of sovereign power through the constitution to the institutions of government also infuses those governmental bodies with the authority to enact government policy legitimately or credibly. Institutions of a constitutionalist polity (majorities, legislatures, chief executives, courts, etc.) require legitimacy. In order for their actions or policies to be seen as justifiable, defensible, or valid, those agencies themselves must be viewed as meritorious; they must be considered lawful and reputable in the eyes of the public. So how does a governmental institution like a court or a legislature obtain the type of legitimacy necessary for its rulings and policies to be followed? Certainly, credibility can be achieved over time through the process of historical longevity. Assuming that it attends to values such as justice, fairness, neutrality, and equality, an agency that exists over a long period of time will more likely than not enjoy a solid reputation. Time, in other words, can help to shore up the credibility and legitimacy of a polity’s political institutions.
Beyond the historical piece, however, a governmental institution acquires legitimacy directly through the constitutional text. Most accurately, a constitutional design provides a necessary but not sufficient condition for institutional legitimacy. When the constitutional document that created and empowered that institution warrants a high degree of respect, the enactments of the institution carry greater weight. In other words, if those who are subject to the policies and enactments springing from ordinary governmental branches see that the constitution is legitimate and that the original distribution of sovereign power from the text to the branches is fair and appropriate, the policies that eventually emerge from the branches of government will also be seen as legitimate.
Of course, ratification is a key element in the process of gaining and maintaining constitutional legitimacy. Without it, the credibility of the constitution in the eyes of constituents is dubious. Canada’s constitutional experiment is again a worthy illustration. The original 1867 text, which was not ratified formally by all citizens, did not immediately enjoy the type of status that other constitutions have. Perhaps unsurprisingly then, a significant portion of Canadians sought either major constitutional reform or, in the absence of a new constitutional design that acknowledged the importance of individual rights and cultural recognition, constitutional dissolution and separation. In that example, a portion of the population eventually saw the constitutional document as illegitimate, and thus they also questioned certain policies emanating from various national institutions. The credibility of the constitutional text, therefore, directly affects the legitimacy of the institutions it produced.
As such, the constitutional act of engineering institutions through the allocation of sovereign power is important.14 In fact, the designation or transfer of power through the constitutional text to the institutions of the polity is precisely what Hutchinson and Adams were fighting about more than two hundred years ago. For them, the crux of the debate was less about the scope of colonial authority than about which institution conferred original power on the colonial assemblies and thus which institution was constitutionally empowered to pay judicial salaries. Hutchinson maintained that the British Parliament retained original sovereign power, while Adams insisted that sovereignty in a constitutional monarchy originates in the constitution. In a sense, Adams argued, the political institutions of the polity are only practical reflections of the sovereign—they are not the sovereign itself. Parliament may be powerful (a point Adams willingly conceded), but it is not identical to the sovereign—it cannot be said to retain unchecked authority over the constitution. As evidence of the strength of his position, Adams reminded Hutchinson that the members of Parliament are subject to the laws of the constitution in precisely the same way as any other member of the British Empire, including the king. If the principle of the rule of law means anything, Adams concluded, it means that men are inferior to the decrees of a constitutional system.
Regardless of whether he was correct in his assessment of sovereign power during the last quarter of the eighteenth century, it is Adams’s position that most accurately reflects the character of the modern constitutional experiment. The assignment of authority to specific political institutions so that those offices are empowered to make policy in the name of the sovereign is a necessary feature of contemporary constitutions. All power derives from the sovereign, and in a constitutional scheme that power is managed—distributed, in other words—by the constitutional document. By definition, a constitution orders the political world in a self-conscious way. Part of that task is to identify the powers that will be delegated to the various institutions of the polity. This is not to suggest that a system of separation of powers is a necessary component of a constitutionalist regime, but rather to point out that enabling government institutions is a vital function of a modern constitutional text. The British constitution, Adams insisted, empowered the colonial legislatures to pay judicial salaries, and the effective functioning of the state courts relied on that fundamental principle.
Consider, briefly, one contemporary example. Like most constitutions nowadays, the Polish constitution (which was enacted in 1997) includes a detailed description of the various duties or powers retained by the institutions of the federal government. Chapter IV, Articles 95–125, for example, refer to the authority of the Polish House of Representatives (Sejm) and the country’s Senate. Resembling Article I of the American Constitution, Chapter IV identifies the specific powers delegated to Poland’s legislative unit. Provisions are in place for the selection of legislators (Article 98), for the introduction of legislation (Articles 118–23), for the scope of legislative duties (Article 104), and for the place of political parties in the selection process (Article 100). Additionally, the constitution stipulates that the House is empowered to declare war (Article 116), deploy troops (Article 117), and impose taxes by statute (Article 217). From a comparative perspective, it is interesting that certain powers typically designated to legislative offices are not granted by the Polish constitutional text. The authority to regulate regional commercial activity, for instance, is nowhere explicitly delegated in the lengthy constitutional charter. The silence itself is revealing of the breadth of constitutional empowerment.
One important inclusion in the constitutional document, however, is the provision found in Article 125 that literally empowers the legislative branches, the judicial branch, and the public at large to resolve important and substantive political problems. This article involves the authority to call national referenda on “matters of particular importance to the state”: the power to “order a national referendum shall be vested in the House of Representatives (Sejm) … or in the President of the Republic with the consent of the Senate.” And yet it goes further to mandate that the national referendum, once approved, is binding, provided that at least half of those eligible to vote actually turn out. At that point, the country’s highest judicial tribunal has authority to review the substance of the referendum and either endorse or reject it. Three constituencies thus have a direct role in the realization of the country’s most important substantive issues; the constitution mandates that all three will participate; and it empowers any of the three to put a stop to the process. The key point raised by this illustration is that the constitution is specifically designed to empower various institutions to enact public policy, all in an attempt to maintain a fully functioning political order.
Keith Whittington understands this feature of constitutions with unique clarity. For him, as for Stephen Holmes and others, the constitution is both a source of guiding principles and an empowering agent: “The Constitution is often understood less as a set of binding rules than as a source of authoritative norms of political behavior and as the foundation of governing institutions; it permeates the substance of political action, establishing not only the boundaries of permissible action but also the standards of action. The Constitution not only constrains; it also empowers.”15 Later, he is even more explicit. About the features of a constitutional document, he writes, “In instituting various organic structures, the Constitution also distributes political powers among them through enumeration, designation, prohibition and reservation, all of which are means of specifying the functioning of political institutions.”16 His point is to suggest that constitutions energize political institutions through the obvious process of “enumeration” and “designation”—the granting of authority—as well as the less obvious process of “prohibition and reservation”—the coordinating and withholding of political power. By giving institutions certain powers and reserving others, constitutions empower those institutions to practice politics in legitimate and credible ways.
Doubtless Whittington recognizes that constitutions provide legal guidance for institutions. That guidance comes in the form of what he describes as “authoritative norms” and “standards of action.” Yet he also recognizes that constitutions go well beyond the simple process of guiding public offices. If we are to believe that constitutional meaning is “constructed” by most major political institutions (including, but not limited to, the judiciary), Whittington insists that we should comprehend the constitution as an empowering agent. Insofar as nonjudicial and judicial actors are involved in the construction of constitutional meaning, these actors relate to the text in interesting and important ways. They shape the constitution through their actions. Indeed, Whittington notes that constitutional constructions are distinct from ordinary judicial interpretations. He defines moments of constitutional construction as occurring when the understanding of the constitution is “unsettled” and when there is a need to establish “standards” for future political conduct. He further suggests that these constructions alter and influence the meanings of constitutions in the same way that significant judicial interpretations alter or influence our constitutional perspectives. Some of the many constitutional constructions he identifies within the American context are the introduction of the legislative veto, the indoctrination of judicial review, and the creation of certain executive departments.
More important is Whittington’s recognition that constitutional constructions are not possible without enabled or empowered institutions. His general conclusion is that “the Constitution empowers political actors to alter their social and institutional environment.”17 A modern constitution like the one that orders the American polity energizes the political institutions to do the real work of politics, to carry on the ordinary operations of a complex state. In turn, those institutions alter constitutional meanings. They effect changes in our understanding of the constitutional order. The result, implies Whittington, is a metaphorical dialogue between text and institutions about the very nature of political practice. The document creates the political bodies, and, assuming they are powerful enough to generate a credible reputation, those institutions then manage to shape the text through the construction of constitutional meanings. Almost any functioning constitutionalist text around the world provides evidence of this dynamic.
Constitutionalism through Empowerment
A workable constitution will classify not only the ends sought by the sovereign but also those institutions and practices that will help foster the necessary conditions for ultimately achieving those ends. Typically, the ends or ambitions embraced by constitutional draftsmen are embedded in the text’s preamble. The establishment of justice and/or liberty, the protection of individual rights and/or equality—these are the common principles announced in present-day constitutions. Indeed, they are the goals sought by constitutionalist governments all over the planet. And yet the articulation of common values in the constitutional preamble is not enough to make them real. A modern constitution recognizes that it is the institutions of the polity that must be empowered to help to achieve the goals articulated throughout the document, so long as they work within a designed framework that recognizes the importance of limited or constrained authority. In other words, once the goals of a polity find a home in the constitutional document, the process of achieving those goals begins, and it begins with energized and empowered institutions. While describing the adoption of the American text in the late eighteenth century, Philip B. Kurland and Ralph Lerner nicely capture this point. “In the plainest terms,” they write, “there could be no grounds for expecting justice, tranquility, and the rest [of the aspirations identified in the Preamble] to prevail in America until there was a national government with energy enough to secure the preconditions for justice, tranquility, and the rest.”18
It is indicative of the complexity of the modern constitutional experiment that some of the most influential founders of the post-Enlightenment era have insisted that an energized or powerful set of political institutions is required to achieve limited and stable rule. Those writing as Publius, for example, argued that in order to maximize individual freedom, government stability, and national security, a powerful national government was needed.19 The experience of the weak Articles of Confederation, which set up comparatively impotent political institutions, convinced Hamilton, Madison, Jay, and other framers, that the key to a stable and enduring polity was not to constrain governmental branches but to give them the necessary authority over governmental functions to ensure rough equilibrium. In Federalist 1, Alexander Hamilton asserts this point: “The vigor of government,” he says, “is essential to the security of liberty.” Later, in Federalist 23, Hamilton implores readers to support a constitution that is “at least equally energetic with the one proposed.” Furthermore, he insists that within the explicitly written allocation of authority each branch ought to enjoy exclusive power over its domain. The legislature enjoys the power to declare war, for instance, and that power is not shared with other branches, said Hamilton. Of course, the brash statesman from New York also understood that the other branches of government—which also enjoy exclusive jurisdiction over their expressly granted powers—would, if powerful enough, counter the impulses of the other branches to amass too much control.
And therein lies one of the secrets to the limitation of authority through constitutional empowerment. A written constitution will confer authority on the institutions of the polity and, in the case of the American text and many others, that authority can even be defined as exclusive, or residing entirely within one sphere. Nonetheless, the enumeration of powers within the fundamental law also implies the absence of authority in places where the text is silent. Constitutions may grant specific powers to legislative, executive, and/or judicial branches, but the very nature of a written charter suggests that what is not explicitly granted is not given. James Wilson, one of the most important of the American constitutional draftsmen, is very clear on this point. In a speech calling for the ratification of the text, Wilson defended the transfer of considerable political power to the newly devised national government by reminding the audience that the federal Constitution should only be seen in relation to the state constitutions, and that all power “which is not given [by the proposed Constitution] is reserved [to the states].” To reiterate the point, he simply reminds the audience that from the perspective of the states the opposite is also true: “All power which is not reserved is given.”20 It is interesting to note that, eventually, the Tenth Amendment inserted Wilson’s reminder directly into the constitutional text.
Even Chief Justice John Marshall had to admit, in a case in which the High Court envisioned congressional power as virtually boundless, that the character of a constitutional text suggests an automatic limitation of certain powers. In the case of the expansive “Necessary and Proper Clause,” he was quick to remind us that the language of the text reveals its limitations: “Congress is not empowered by [the clause] to make all laws, which may have relation to the powers conferred on the government, but such only as may be ‘necessary and proper’ for carrying them into execution.”21 Furthermore, he admits that there are places where the text literally announces restrictions on governmental power (Article I, Section 9; the Bill of Rights; etc.). Finally, he remarks, all written constitutions include implied powers, but the process of textualizing or documenting the fundamental law, if it is to mean anything, must admit to a certain defined scope; not everything is possible under a written constitutional charter.
Hamilton’s assertion in the 84th Federalist that the “Constitution is itself, in every rational sense, and to every useful purpose, a bill of rights” is also instructive here. His specific arguments have been well rehearsed both in this work and elsewhere. First, he insisted that the addition of a list of freedoms to the American text was unnecessary or redundant because the very nature of a written constitution prohibits government institutions from exercising powers not expressly delegated by the instrument. Second, he and others made the related argument that the inclusion of a list of rights within the constitutional instrument is, in fact, dangerous because it implies that government retains all powers except those specifically limited by the rights guarantees. A Bill of Rights can have the opposite effect than what was intended; it can produce a belief that governments need only ensure the protection of explicitly articulated rights.
It is this more subtle argument that emerges from the dialogue between Hamilton (writing as Publius) and his Anti-Federalist opponents that warrants further attention. Scholars have suggested that the Anti-Federalist endorsement of a bill of rights had (and still may have) the potential to backfire, that the existence of a textual bill of rights, rather than enhancing freedoms, will stifle or limit the very liberty opponents of ratification so passionately defended. According to Herbert Storing, “The basis of the Federalist argument was that the whole notion of a bill of rights as generally understood is alien to American government. It was derived from Britain, where there was no written constitution and where individual liberties were secured by marking out limits on royal prerogative.”22 Storing then goes on to suggest that the primary reason for opposing the inclusion of a bill of rights in the constitution was, in fact, to preserve liberty itself. The key to freedom was (and presumably still is) a robust and energetic government that understood the scope of its power and that recognized the limits incurred by a preordained constitutional instrument. Quoting Publius in Federalist 63, Storing writes, “The friends of the Constitution … feared that an undue concern with rights might be fatal to American liberty. ‘Liberty may be endangered by the abuses of liberty.’ “23
The implication of all of this is that a constitution that does not include a concrete list of freedoms (yet is ratified under the Hamiltonian assumption that a constitution is “itself a bill of rights”) has the potential to cultivate a greater degree of liberty than one that literally embeds rights within the text.24 That is so because of the automatic limits that accompany a textual constitution. The idea that the very character of a written constitution restrains political power also applies to individual rights, so that the freedoms not constitutionalized by their inclusion in the document are viewed as presumably less fundamental or even as unavailable to the general population. Certain Federalists were concerned that the placement of rights in the fundamental law would give the impression that they amounted to privileges bestowed on the citizenry by government and not, as was intended, a natural element of the human condition. Benjamin Rush admitted to this perspective. He wrote, “‘As we enjoy all our natural rights from a pre-occupancy, antecedent to the social state,’ it would be ‘absurd to frame a formal declaration that our natural rights are acquired from ourselves.’ “25 In part, the controversy surrounding the right to privacy is a legacy of that philosophical outlook.
Two main points arise from this discussion. First, a written constitutionalist text automatically implies the limitation of power. Insofar as constitutionalist documents are, by their very nature, concerned with the regulation and management of self-conscious restraints on the capacity of the sovereign to exercise its will, they will follow a principle that sounds a good deal like the one espoused two centuries ago by James Wilson. Indeed, it was Wilson who “pointed to the fact that the general government would possess only specifically enumerated powers” and those implicit powers that accompanied them.26 Second, and more important for our present purposes, a constitution that empowers or ennobles the institutions of the polity to act in the name of the sovereign has a better chance to cultivate the preconditions necessary to achieve those aspirations declared by the text’s preamble. In order for a polity to realize its primary ambitions, it must admit to a certain degree of energy in its political branches. Infusing political institutions with legitimate and credible power—power that begins with the unchecked sovereign but is then transferred through the constitution to the institutions of government—can have significant benefits for the newly constituted polity. The most obvious example involves liberty. To establish the preconditions for a genuinely free society, the institutions of the polity must be powerful enough to maintain and protect them. No political or constitutional theorist said it better than Rousseau, who understood that the transition from the state of nature to civil society, rather than leading to less individual freedom, was a principal ingredient in the enhanced liberty of the newly constituted citizen. He wrote, “To the benefits conferred by the status of citizenship should be added that of moral freedom, which alone makes a man his own master. For to be subject to appetite is to be a slave, while to obey the laws laid down by society is to be free.”27
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