Engines Of Liberty: Constitutional Challenges

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Posted: Jul 12, 2021 10:08 AM
Engines Of Liberty: Constitutional Challenges

Source: National Archives via AP

Consistent with its rhetorical purpose, the Declaration of Independence displays a close affinity with the principles of "the New England theo-political philosophy," as Archie P. Jones indicates, along with an attitude of lawful resistance to abuses of power: 

In form, the Declaration is a plea at law against the king in Parliament, charging him with failure to uphold his contractual obligations as feudal lord over the colonies. As such, it is a powerful assertion that rulers are under law, that their powers, even though they be a popular or quasi-popular assembly, are limited by fundamental law, and that both George III and Parliament are unjustified in attempting to assert their supposed right to absolute rule.

The principle of limited government pronounced by the Declaration firmly places this document within the higher law tradition of English constitutionalism. The exigencies of frontier life favored a revival of the ancient English practice of local self-government. The relative freedom of the colonists from direct oversight enabled them to put their theology into practice experimentally, although some of their adaptations technically violated their original agreements, as when the Pilgrims of Plymouth Plantation abandoned communal farming in favor of private ownership.  

Furthermore, decentralized political institutions required the existence of healthy social institutions, including voluntary associations. The mainstays of society in Plymouth Colony were, first, the family, then the church and the state in supporting roles. As John Demos points out, the family combined the attributes of a business, school, vocational institution, church, house of correction, and welfare agency. And so it was to remain for some time after the War for Independence.

It is this combination of ingredients which lends a distinctly liberty-enhancing quality to American social institutions. The civil government was regarded as a constituent, not a constitutive, element. By 1781, a "perpetual union" was in operation under the Articles of Confederation. The Constitution of 1787 formed "a more perfect union" rather than an entirely new system of government.  

One of the great practical advantages of the covenant design is the possibility of reconciling a number of self-governing entities within a larger union or commonwealth, such as a municipal corporation, district, county, and state. As Daniel J. Elazar noted, “a covenant provides for joint action to achieve defined ends (limited or comprehensive) under conditions of mutual respect which protect the individual integrities of all parties to it.”

Given the limited character of the civil government, the supremacy clause of Article VI is best understood in the context of an already mature constitutional tradition within which the new federal structure was fitted to work cooperatively with existing governments and not force-fitted like a Procrustean bed. It does not simply replace an earlier parliamentary or state sovereignty with another of its own.

The characterization of the Constitution as "the supreme law of the land," which hearkens to the "law of the land" of the Magna Carta, refers to more than the document itself. It is unnecessary to speculate about the exact intent of the founders when the very language of the Constitution attests to its continuity with and even incorporation of earlier higher law concepts. Indeed, this understanding was affirmed by the founders themselves and has been periodically reaffirmed by members of the judiciary. As Edward S. Corwin contended:

The attribution of supremacy to the Constitution on the ground solely of its rootage in popular will represents, however, a comparatively late outgrowth of American constitutional theory. Earlier the supremacy accorded to constitutions was ascribed less to their putative source than to their supposed content, to their embodiment of an essential and unchanging justice. [...] There are, it is predicated, certain principles of right and justice which are entitled to prevail of their own intrinsic excellence, all together regardless of the attitude of those who wield the physical resources of the community.

The principles of higher law jurisprudence may be traced to the earliest period of modern western law. In the twelfth century, for example, Gratian wrote: '"Enactments (constitutiones), whether ecclesiastical or secular, if they are proved to be contrary to natural law, must be totally excluded.”

The covenantal principle that led to the “unanimous Declaration of the thirteen united States of America” in 1776 culminated in the Constitution of 1787. The new federal union was given the authority to coordinate a political system of divided yet cooperative powers, not to dominate it. Its overall success has always depended upon the continued good health of the various social institutions, such as families and churches, which also exercise powers of a governmental nature.

Like the Declaration of Independence, the Constitution is based on the premise that the primary purpose of civil government is essentially that of a guardian or steward rather than a vanguard of progressive change. Since power is coercive by nature rather than persuasive, the founders believed that civil authority must be constitutionally restrained. James Madison declared that an accumulation of powers in the same hands "may justly be pronounced the very definition of tyranny." 

One of the great challenges to constitutional liberty has come through a gradual shift of emphasis from prohibition to regulation, from a protective to a beneficent or philanthropic conception of civil power. What Alexis de Tocqueville subsequently wrote about the regulation of manufacturing associations might be applied with equal validity to the regulation of religious and other societal activity: 

If once the sovereign had a general right of authorizing associations of all kinds upon certain conditions, he would not be long without claiming the right of superintending and managing them, in order to prevent them from departing from the rules laid down by himself. In this manner the state, after having reduced all who are desirous of forming associations into dependence, would proceed to reduce into the same condition all who belong to associations already formed; that is to say, almost all the men who are now in existence.

The success of this struggle for political liberty was soon followed by a growth of religious liberty and the collapse of established church denominations. For a time, centralizing tendencies were held in check. This changed following the War between the States and the rise of Progressivism. The New Nationalism promoted by Herbert Croly and Theodore Roosevelt was designed to convert the national government into a countervailing force that could regulate Big Business on behalf of the public interest. In the end, Progressives were more successful at converting the central government into a major power broker than in breaking up the centers of financial and industrial power. A powerful government bureaucracy grew but not as an independent force. Instead, a pragmatic partnership tied business and government together.

The American system of constitutional liberties and safeguards ultimately depends upon the consensus and self-restraint of its constituent parts. The challenge is for it to develop the capacity to overcome the eclipse of its founding vision and its replacement by intrusive ideological agendas.