12 August 2009

Early American Constitutional History

An interesting article by G. Edward White argues that many of the important themes of American constitutional law, involving the separation of powers and civil liberties were secondary afterthoughts in the Founding era, that the natural law concept of "liberty" was ill defined.

The notion of "equality" as a constitutional value was almost entirely absent at that time. The proclamation in the Declaration of Independence that "all men are created equal" had been intended to compliment a grievance related to the continued existence of slavery, but the grievance itself was excised at the insistence of Southern state representative on behalf of their slave owning constituents and representatives from the North engaged in the slave trade.

Instead the Founders were concerned primarily about federalism and sovereignty issues. They needed a system of government that addressed the fiscal, western land management and foreign affairs inadequacies of the Confederation in place prior to the current constitution. The woes encountered in the early Republic during anti-tax uprisings in Massachusetts greatly influenced the constitutional protections of civil liberties that were established.

The notion of an independent judiciary as a separate branch of government with the power of judicial review was not well established and was not present in any contemporary government. Neither the states nor the Confederation had an independent executive; state executive officials were mostly appointed by state legislatures. Indeed, at independence, the United States rejected the divided government matrix of the British system by rejecting both the monarchy and the House of Lords, leaving only a residual House of Commons.

This does not mean that we should ignore two centuries of constitutional jurisprudence. But, it does mean that an originalist and positivist approach to constitutional civil liberties or judicial review rooted in the Founders articulated beliefs is destined to fail. It is rarely illuminating to ask what the Founders felt about a civil liberties issue, or to raise the argument that a right is not articulated in the four corners of a constitutional document, given that the Founders saw civil liberties as a matter of natural law rather than as part of an express social contract.

The history is also facinating because it suggests many alternative course that the Founders could have taken which would have profoundly changed the way the American Constitutional order evolved, in matters where the Founders were not strongly committed to one particular approach. Much of the American constitution's evolution turns out to be genetic drift (memetic drift?), a set of features reproduced widely because they just happened to be present in the bottleneck founding period alongside traits with important selective advantage, even though the traits themselves do not confer selective advantage themselves.

For example, there is probably no profound reason that the People make better decisions on Tuesdays in early November, than on other days, yet this rule has been faithfully adhered to for the whole of American history (at least until mail-in and early voting were adopted in recent years).

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