The Organic and Moral Elements in the American Consitution - the Constitution Is a Product of Colonial Experience under British Common Law and Other Historic Traditions

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Historian Paul Johnson is the author of 28 books, including the much- acclaimed Modern Times: The World from the 1920s to the 1990s.

In the endless human adventure of self-government, the United States has been one of the great stories of success. The explanation for this must lie primarily in its constitution and, still more, in its constitutionalism--that is, its capacity to modify its mode of government by due process rather than by violence. Nowadays the study of constitutions is regarded as dull work; "constitutional history" is completely out of fashion. Yet constitutions are important. No other document tells us more about a country, or why its public system works or does not work. The United States has had the same constitution for 200 years. In the same period, another highly sophisticated and civilized country, France, has tried a dozen, some abortive; only under the Fifth Republic has it acquired a satisfactory document, likely to become permanent. How did the United States manage to get it right the first time?

The question is all the more worth asking if we reflect that the American statesmen of the 1770s and 1780s really inaugurated the constitutional era in world history. During the last two centuries, the number of written constitutions framed, debated, adopted, scrapped, and recast runs into thousands. Many, like those of the Central African Republic and the United Arab Republic, have simply failed. Others, like the Soviet constitution, are dead letters, quite meaningless to those who have to live under them. In the last forty years alone over a hundred new nations have come into existence, the great majority of them with constitutions that are rhetorical rather than real. While expressed in noble and beautiful language, their provisions bear no relation to the way in which the regimes that hold power actually behave. The United States is the only major country to have survived two centuries of this disillusioning era--including its own appalling civil war--with its founding code substantially intact, honored by its rulers and respected by its citizens.

ROOTS OF AMERICAN POLITICAL ORDER

The reasons for this success are twofold. The American Constitution sprang not from a vacuum but from a rich and varied complex of traditions, some of them very old. Because of this origin, it was able to develop a creative life of its own, responding to new challenges not only by deliberative enactment but by organic growth. It proved a living thing because it came from living soil.

Three elements influenced the political thinking of American public men in the last quarter of the eighteenth century. The first was the comparatively new stress upon equality and human rights generated by the French writers of the Enlightenment--Rousseau, Diderot, and the other Encyclopaedists. They were responsible for what might be called the utopian element in the new American polity, the belief that a perfect society could be created afresh. Without their influence, the first two paragraphs of the Declaration of Independence would not have been phrased as they were; nor would the actual Constitution itself, with its deliberate attempt to achieve a separation of powers, have been so systematic.

The principal formative element, however, was the English common law tradition and its use by English parliamentarians, over the centuries, to curb the royal power. Men like John Adams and Thomas Jefferson wrote and deliberated within the historical framework of the British Constitution. To be sure, it was largely unwritten, though punctuated by key statutes like Magna Carta, the Bill of Rights, and Habeas Corpus. It nonetheless existed, because it had been created by parliamentary history and by court decisions interpreting the common law. The men of Massachusetts wrote to Lord Chatham in 1768 that, "That grand principle in Nature, 'that what a man hath honestly acquired is absolutely and uncontrollably his own,' is established as a fundamental rule in the British Constitution. …