Constitutions
(Except as noted, the following excerpts have been taken from Gordon S. Wood's The Creation of the American Republic 1776-1787, W.W. Norton & Co., c1969.)
Americans saw the need to distinguish the law or mechanism protective of their fundamental natural rights and liberties as distinct and superior to government. According to the April 3, 1779 "Providence Gazette," subsequent to the formation of the "social compact" between individuals, "a charter of delegation" was needed as "a clear and full description of the quantity and degree of power and authority, with which society vests the persons entrusted with the powers of the society, whether civil or military, legislative, executive or judicial." (at 284) Accordingly, a constitution was conceived as a written delimitation of the grant of power made by the people to the government; unalterable by the government.
Justice Samual Miller's classic definition of a constitution was:
"A constitution in the American sense of the word is a written instrument by which the fundamental powers of government are established, limited, and defined, and by which these powers are distributed among several departments, for their more sage and useful exercise, for the benefit of the body politic." Bernard Schwartz and Edwin D. Webb, Roots of the Bill of Rights, Vol. 2, Chelsea House Publishers, c1990, pg 383.)
The constitution is "that original compact entered into by every individual of a society, whereby a certain form of government is chalked out and established unalterably, except by the people themselves: thus by a constitution then, ...we do not mean government itself, but the manner of its formation and existence." (at 290)
Thomas Tudor Tucker in a 1784 pamphlet entitled "Conciliatory Hints, Attempting by a Fair State of Matters, to Remove Party Prejudice" wrote:
"The constitution should be an avowed act of the people at large. It should be the first and fundamental law of the State, and should prescribe the limits of delegated power. It should be declared to be paramount to the acts of the Legislature, and irrepealable and unalterable by any authority but the express consent of the majority of the citizens collected by such regular mode as may therein be provided." (at 281)
Samuel Adams wrote in the Massachusetts Circular Letter of 1768;
"…that in all free States the Constitution is fixed; and as the supreme Legislative derives its Power and Authority from the Constitution, it cannot overleap the Bounds of it without destroying its own foundation." If the people were to remain free, they must "fix on certain regulations, which if we please we may call a constitution, as the standing measure of the proceedings of government." (at 266)
The town of Concord, Massachusetts in 1776 described the concept:
"A Constitution in its proper Idea intends a System of Principles Established to Secure the Subject in the Possession and enjoyment of their Rights and Privileges, against any Encroachments of the Governing Part," including even "the Supreme Legislature." (at 267)
As one Pennsylvania writer's stated:
A constitution did not contain the division and distribution of the state's power, rather it "describes the portions of power with which the people invest the legislative and executive bodies, and the portions which they retain for themselves." Indeed it was "the particular business of a Constitution to mark out how much they shall give up." It was "the charter or compact of the whole people, and the limitation of all legislative and executive powers." (at 283)
As stated by William Paca, a constitution and the delegation of legislative power by the people was not a wholesale surrender of power; it was piecemeal and controlled. None of the rights the people had were "parted with or transferred by any compact that we have made." In fact, the constitution was not inclusive of the people's rights; it did not and could not confine them. The rights of America had never rested on charters or compacts. They derived from a higher source, the laws of nature and God. (at 291)
Reference: Blackstone's Commentaries, "View of the Constitution of the United States, Section 2 - Nature of U.S. Constitution; manner of its adoption; as annotated by St. George Tucker, William Young Birch and Abraham Small, c1803:
"The advantages of a written constitution, considered as the original contract of society must immediately strike every reflecting mind; power, when undefined, soon becomes unlimited; and the disquisition of social rights where there is no text to resort to, for their explanation, is a task, equally above ordinary capacities, and incompatable with the ordinary pursuits, of the body of the people. But, as it is necessary to the preservation of a free government, established upon the principles of a representative democracy, that every man should know his own rights, it is also indispensably necessary that he should be able, on all occasions, to refer to them. In those countries where the people have been deprived of the sovereignty, and have no share, even in the government, it may perhaps be happy for them, so long as they remain in a state of subjection, to be ignorant of their just rights. But where the sovereignty is, confessedly, vested in the people, government becomes a subordinate power, and is the mere creature of the people's will: it ought therefore to be so constructed, that its operations may be the subject of constant observation, and scrutiny. There should be no hidden machinery, nor secret spring about it.
"The boasted constitution of England, has nothing of this visible form about it; being purely constructive, and established upon precedents or compulsory concessions betwixt parties at variance. The several powers of government, as has been elsewhere observed, are limited, though in an uncertain way, with respect to each other; but the three together are without any check in the constitution, although neither can be properly called the representative of the people. And from hence, the union of these powers in the parliament hath given occasion to some writers of that nation to stile it omnipotent: by which figure it is probable they mean no more, than to inform us that the sovereignty of the nation resides in that body; having by gradual and immemorial usurpations been completely wrested from the people."
