Constituting the Constitution: Understanding the American Constitution through the British Cultural Constitution
Sheldon, Garrett Ward, Harvard Journal of Law & Public Policy
Reference is often made to the legal philosophical, and historical progenitors of the American Constitution in ideas derived from Great Britain, such as the writings of John Locke or William Blackstone, and familiar documents like the Magna Carta or The Petition of Right of 1628. Perhaps an even more significant constitutional heritage may be found in our inheritance of the British appreciation for the customary or cultural foundations of fundamental law. This appreciation for what is often termed the "organic" constitution, beholden philosophically to Aristotle, Aquinas, and Burke, emphasizes how a society or nation is "constituted," and the implications of that social constitution for the written or codified document. In this respect, the example of British constitutionalism may be helpful in understanding the proper approach to American constitutional interpretation.
I. BRITAIN'S "CONSTITUTED" CONSTITUTION
Consideration of what the inhabitants of Great Britain understand to be "the British Constitution" is instructive. By "the Constitution" the British (and all traditional societies) mean how the entire nation is "constituted" or "made up." It is an older meaning of the word, which conveys a richness that our narrower, purely documentary "Constitution" misses. In earlier American culture, people spoke of a man's "constitution," or overall condition, as healthy or sound, strong or weak. Even today we sometimes speak of a horse's "constitution" as its overall health and abilities. Similarly, when the British understand their constitution in this sense, they mean the overall condition and character of the country, including its economy, households, religion, education, manners, and arts--as well as the organization of government. The state is only a formal and representative expression of the nation's "constitution." According to this organic composition of the traditional constitution, the government and laws should conform to the other aspects of a nation's constitution, both to preserve the wholesome institutions of which society is comprised and to avoid needless friction between law and private conduct--friction that ultimately leads to diminished esteem for the organs of government. In this way, when we refer to "the Constitution" in the British sense we actually mean more, not less, than when we use the same words to describe the written, American Constitution. It is perhaps a more complete, wiser understanding of what a constitution is.
One of the most prominent English Constitutional Law scholars in the 1800s, now largely forgotten, was Sir William Anson, the Master of All Souls College at Oxford. (1) In his classic nineteenth-century work, The Law and Custom of the Constitution (note the title, itself reflecting a traditional organic view), Anson wrote that it is "the connection and relations" of persons in a society that "form the constitution." (2) Therefore, Sir William insists, especially in the early stages of its development, "the action of the State ... dare not depart from custom." (3) Instead, "religious observance and moral action, as well as the maintenance of order ... are its concern." (4) A government neglects its primary duty when it forgoes "maintaining and enforcing its [country's] customs," and does so at its peril--especially when it uses the written Constitution and laws to attack those moral customs. (5) When, in America, this study of society and custom was separated from that of law and government and given over to sociology, with its Marxist presuppositions, we lost a vital link to understanding the essential role that law, government, and our own Constitution play in maintaining the social customs that gave rise to our great nation in the first place.
Sir William Anson rightly noted that because the British Constitution consists of the way that nation is constituted--culturally, morally, economically, religiously, and politically--the country's constitutional change is gradual and slow. …