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How History Made The Constitution

Authors: Hiller B. Zobel

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March 1988 | Volume 39, Issue 2

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It took an Englishman, William Gladstone, to say what Americans have always thought: “The American Constitution is, so far as I can see, the most wonderful work ever struck off at a given time by the brain and purpose of man.” From this side of the water, however, the marvel has not been so much the unique system of government that emerged from the secret conclave of 1787 as the array of ordered and guaranteed freedoms that the document presented. “Every word of [the Constitution],” said James Madison, the quintessential Founding Parent, “decides a question between power and liberty.”

In its treatment of individual and institutional liberty, the Constitution that the delegates signed on September 17, 1787, afforded a remarkable spectrum of protection. Covering every aspect of the tripartite national government and many activities up to then subjects only of state concern, the mint-new Constitution could truly be called “a self-supporting bill of rights.”

Like the original Bill of Rights, which the English Parliament had extracted from William and Mary in 1689, the Constitution imposed restrictions on the sovereign—that is, in our case, on the power of the government itself. And like the legislation of 1689, the constitutional restraints rested upon widely shared historical memories. Our Constitution thus represents a national effort to bring the lessons of the past into the life of the present—and of the future. The men in Philadelphia were practical historians, aware, more than a hundred years before George Santayana, that those who do not remember the past are condemned to relive it.

The past that educated eighteenth-century Americans studied and mastered, mastered as thoroughly as today we know politics or even sports, came mostly from English history, which separated into three stories: the struggles among various royal contenders; the battles between crown and Parliament; and the efforts by both the legislature and George III to stifle American liberties.

From beginning to end the charter that emerged from Philadelphia’s State House addressed specific problems of free government that the framers carried in the forefront of their collective historical memory.

The very first portion of the Constitution deals with the selection, organization, and powers of the national legislature. Beyond the obvious problems of practical politics and political theory, the framers faced a particular psychological difficulty. As revolutionaries they admired and identified themselves with the British Parliament, which had, after all, during an eventful half-century sparked the battles with Charles I that brought on the Civil War and interrupted the monarchy; effected the Restoration; forced an abdication; and, finally, created a new order between crown and people.

At the same time, the Parliament the Americans directly remembered bubbled with political and financial corruption. It was an institution not even nominally representative, leaving large numbers of citizens, at home and abroad, totally without representation; an institution frequently unresponsive to the needs—let alone the views—of the governed; an institution demonstrably subject to unscrupulous direction by venal noblemen and a foolish, willful king.

King George had already demonstrated an insidious and probable route to tyranny.

To constitution writers as to ordinary people, in 1787 and now, recent experiences have the strongest influence. The framers plainly needed no reminders of the misdeeds of their British contemporaries. But we should also remember that the other historical matrix of the Constitution, England’s Glorious Revolution of 1688, was considerably closer in time to the Philadelphia convention than, for example, Grover Cleveland’s first administration is to us.

Moreover, the technological acceleration that has propelled us a sidereal distance from the gaslight era did not separate King William III from George Washington. Mulling the story of the seventeenth century, the framers contemplated a context entirely familiar. They required neither mental effort nor abnegation of scientific advances to identify themselves with their forebears. James Madison could more comfortably have conversed with Algernon Sidney, the Whig martyr of 1683, than could George Shultz with Thomas F. Bayard, Cleveland’s Secretary of State.

With such contemporary history a part of the debates and the debaters, it was natural that the legislature that the convention proposed would clearly embody both the distrust of Parliament that had characterized the pre-Revolutionary crescendo and an effort to ensure that the legislative branch would resemble the heroes who brought forth the English Bill of Rights of 1689, rather than the villainous crew that had concocted the Intolerable Acts of 1774.

The Americans still saw the British national legislature, resting as it did on a narrow electoral base, not as a counterpoise to the stupidity and political excesses of an illiberal, reactionary executive but rather as his partner or tool (perhaps both) in destroying the nation’s liberty and the individual’s freedom. Election of the members of Congress “by the People of the several States” was, as the Revolutionary patriot William Dawes told the Massachusetts convention, the “acquisition of a new privilege by the people....”

The Constitution requires that Congress “assemble at least once in every Year,” to guarantee that the people’s voice may be heard continually, and that the Executive shall never imitate Oliver Cromwell, who strode into the House of Commons and contemptuously told the members, “You have sat too long here for any good you have been doing. Depart, I say, and let us have done with you. In the name of God, go!”

Fresher and nearer, if less violent, examples doubtless came to the framers’ minds: the refusal of royal governors in Virginia and Massachusetts to summon the legislatures in 1774 and the dissolution that same year of the assemblies in another six colonies.

Direct, forcible, physical intrusion into the legislative precincts was, however, only one way by which a despotic executive might seek the Republic’s destruction. King George had already demonstrated a more insidious and more probable route to tyranny. Through shrewd disbursement of public funds, he had, in the sardonic words of the historian Edward Channing, “purchased the balance of power in the House of Commons with the nation’s

money” and thus had bought the government itself.

The new Constitution installed two safeguards against an American repetition of this royal corruption. First, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law....” Taken literally—as the framers meant it to be taken—this prohibited spending public money, or even possessing it, without prior authorization from both houses of Congress.

Second, those who had spent or acquired any such funds would have to justify themselves publicly. “A regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” Patrick Henry ridiculed the accounting requirement as “very indefinite and indeterminate: It may extend to a century.” Any peculating rascals would, he argued, “act like fools indeed, were they to publish and divulge their iniquity, when they have it equally in their power to suppress and conceal it.”

But then, Henry generally distrusted the Constitution and its “beautiful features.” When he came to examine them, he said, “they appear to me horribly frightful. Among other deformities, it has an awful squinting. It squints towards monarchy....”

This time Henry missed the point. By making regular accounting not merely a commercial duty but a constitutional principle, the framers were establishing a moral imperative. A century before the inception of the Civil Service Commission, they were assuring the country (and its officeholders) that a public office is a public trust.

Morality in government, however, did not mean requiring any particular set of beliefs among the governors. Indeed, to ensure that religious preference would never keep anyone from public service, the framers abolished the “religious Test” as a “Qualification to any Office or public Trust under the United States.” The abolition meant that a place in government was now open to Roman Catholics, Jews, or even atheists, all groups disqualified in England and in many states too.

No matter how broad the base of its membership, no legislature could perform its lawmaking function, or its role in countering the power of the executive, if the government of the day could harass members morally, physically, and through court process. Remembering the misadventures of a roguish MP named John Wilkes, the framers provided that senators and representatives would “in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

Wilkes, an erudite, witty rakehell, had enraged George III by a bitter attack on the king’s speech to Parliament in 1763. Although Parliament was then in session, administration bullies broke into Wilkes’s home, seized his papers, arrested him, and locked him in the Tower of London. After his release by habeas corpus on the ground of parliamentary privilege, the ministry pressed its obliging majority in the House of Commons to resolve that the

privilege did not “extend to the case of writing and publishing seditious libels, nor ought to be allowed to obstruct the ordinary course of law.”

Thus outlawed, Wilkes fled to the Continent, where he lived for more than four years. He returned in 1768, just as the American taxation battle was raging. The electors of Middlesex returned him to Parliament, but the Commons (on ministerial orders) expelled him. Returned again, he was once more expelled. The process was repeated a third time. On the fourth try, although Wilkes polled 80 percent of the vote, the Commons gave his opponent the seat.

Wilkes’s defiance of king and Parliament brought him immense popularity among American radicals. “Wilkes and Liberty” became their watchword; “45” (which was the number of the issue of Wilkes’s North Briton in which he had skewered the king) took on ritual significance; and a new settlement on the banks of the Susquehanna adopted the name of Wilkes-Barre (Isaac Barré being an MP who vigorously championed the American position).

For all the language seeking to assure a legislative process free from executive coercion, the Constitution expresses even more strongly the widespread American fear that a national legislative body acting either by itself or in concert with a President turned Cromwell would destroy individual liberties.

A hint that the framers feared legislative tyranny more than executive despotism lies in the placement, within the constitutional text, of the great guarantees. The prohibition of religious tests appears in Article VI, the Constitution’s statement of national supremacy, and the jury right and the limitation of treason appear in the judiciary Article III. All the rest come in the legislative Article I. Oddly enough, nothing in the presidential Article II expressly restricts the executive.

The focus on a potentially mischievous legislature makes sense, considering the governmental format the Constitution created. Although they sharply separated the executive branch from the legislative, and although they gave the President immense powers—in the eighteenth century only monarchs simultaneously commanded both the army and the navy—the framers established an executive totally dependent on the legislature for everything but the definition of his office and the right to hold it.

No constitution could gain acceptance unless it addressed the widespread fear, well represented among the delegates, that a strong central government would permit the swift eradication of the states themselves, as well as of every citizen’s personal liberty. “My principal objection,” said George Mason of Virginia (who ultimately refused to sign), “is, that the Confederation is converted to one general consolidated government, which...is one of the worst curses that can possibly befall a nation....The question then will be, whether a consolidated government can preserve the freedom and secure the great rights of the people.”

The instrument best calculated to effect this cataclysm was the standing army. “In despotic governments,” wrote the anti-Federalist “Brutus” (who was Robert Yates, a renegade New York delegate to the convention), standing armies “have always proved the destruction of liberty,

and are abhorrent to the spirit of a free republic.”

Thomas Jefferson, no enemy to the Constitution as it emerged from the convention, nonetheless wrote to Madison from Paris bemoaning “the omission of a bill of rights providing clearly and without the aid of sophisms, for [among other things] protection against standing armies.”

English seventeenth-century history, the pre-Revolutionary American pamphlets, and that emotionally overplayed street scuffle called the Boston Massacre had by 1787 made the very concept of a professional army the most widely perceived social and political threat. Charles II had “kept in pay” an army of five thousand; James II had (so it was argued) raised the number to thirty thousand. Accurate or not, the perception was ineradicable. “The President, in the field, at the head of his army,” cried Patrick Henry, “can prescribe the terms on which he shall reign master....” Even Madison agreed that “as armies in time of peace are allowed on all hands to be an evil, it is well to discountenance them by the Constitution....”

With habeas corpus, liberty’s most important guarantee, no one could be illegally jailed.

Yet the reality of America’s situation, surrounded as it was by possessions of the three greatest European powers, demanded military preparedness to a degree more reliable than the individual states’ militias. “Preparations for war are generally made in peace,” New Jersey’s Jonathan Dayton, the youngest member, told the convention, “and a standing force of some sort may, for aught we know, become unavoidable.”

The solution the delegates reached was typical of the many compromises that underlay the final draft: Congress could “raise and support Armies,” but no military appropriation could cover a term longer than two years. Thus every Congress would have an opportunity to bring the military to fiscal heel.

The tenor of their debates and the text of the document they produced clearly show the framers to have regarded the Constitution itself as limiting congressional power. Recognizing the probable popular demand for a bill of rights, they nonetheless determined not to include prohibitory language on those matters that they believed Congress constitutionally incapable of legislating.

Certain areas trenching on individual liberty could, however, conceivably lie within Congress’s discretion; as for those, the framers, in the historian Irving Brant’s apt formulation, “created a partial Bill of Rights.”

Foremost among these was the question of habeas corpus. Meaning in Latin “bring the body,” habeas corpus was a writ (a court order) commanding anyone who held someone else in custody to bring the confined person to court, where a judge could determine the legality of the confinement.

Although the writ had been a part of English law for centuries, its application had not been smooth. In 1627, for example, an English court ruled that a custodian could legally justify the confinement by showing that he held the prisoner at the king’s special command.

Even after Parliament had supposedly remedied that problem, royal judges accepted a return (or answer to the writ) that

John Selden and others were being held by the king’s special command “for notable contempts against the king and for stirring up sedition against him.” In Star Chamber, that juryless judicial arm of would-be Stuart absolutism, the crown insisted upon its right of imprisonment without trial, on a warrant signed by the secretary of state and some privy councillors, alleging “reasons of state.” These royal efforts continued, even after Parliament abolished Star Chamber in 1641.

The Commons repeatedly passed legislation to guarantee the Great Writ, as habeas corpus was called, but each time the bill failed in the House of Lords. Finally the Habeas Corpus Act of 1679 passed both houses (because, it was said, the tellers in the Lords counted one stout peer as ten).

In America one notorious imbroglio just before the Revolution suggested that habeas corpus continued to need protection. Alexander MacDougall, a New York radical, had published a broadside that the Loyalist-controlled Assembly damned as “a false, seditious and infamous libel.” Attempting itself to try MacDougall, the Assembly voted him guilty, ordered him jailed, and directed the sheriff to disregard any attempt at habeas corpus. A judge issued the writ, but the officer obeyed the legislature and ignored it.

With this background the framers had no difficulty, as Charles Pinckney of South Carolina said, “securing the benefit of the Habeas corpus in the most ample manner....” Indeed, they only disagreed on whether suspension of the privilege was appropriate at all, even (as the text finally read) “when in Cases of Rebellion or Invasion the public Safety may require it.”

Habeas corpus was probably liberty’s most significant guarantee because once the writ was freely and unalterably available, no one could be illegally jailed. However compelling the need that no one suffer improper confinement, it is almost as essential that none suffer improper accusations. From the history of the mother country as well their own, the framers recognized some other criminal law threats: particularly the ex post facto law.

The ex post facto law is simply a legislative attempt to criminalize an act after the fact, a kind of changing the rules when the game is over. Its manifest unfairness caused many state constitutions to express absolute prohibitions or to bar such legislation by their “spirit and scope,” as Madison said. During debate several lawyer delegates (Gouverneur Morris, Oliver Ellsworth, and James Wilson) in fact thought ex post facto laws so “void of themselves,” as Ellsworth said, that specific prohibition was needless.

But Daniel Carroll, a delegate from Maryland, said that “experience overruled all other calculations.” And as the North Carolina delegate Dr. Hugh Williamson remarked, if the legislature should pass an ex post facto law, “the Judges can take hold of” the constitutional prohibition; that is, relying on the Constitution, they can nullify the statute.

Having explicitly stripped the national government of the ex post facto law, the framers had no trouble imposing the same prohibition on states. In addition, they forbade states to pass

laws “impairing the Obligation of Contracts.”

Every convention delegate had been guilty of treason less than ten years earlier.

Although this may seem far removed from issues of individual liberty, the delegates regarded the matter of contracts as so vital that the only question seemed to be whether the bar against ex post facto laws covered what the Delaware delegate John Dickinson called “retrospective laws in civil cases.” Consulting Blackstone’s Commentaries on the Laws of England, he concluded that it did not and that “some further provision for this purpose would be requisite.”

The contracts clause attracted little opposition, probably for the reasons that Madison set out in The Federalist No. 44: “The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs [i.e., schemes] in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community.”

Nothing in the recorded convention debates, however, suggests why the emphatic protection of habeas corpus did not also specifically apply to the states. The argument that the state constitutions already guaranteed the Great Writ fails in light of Madison’s “additional fences” rationale, which accurately reflects the delegates’ attitude. Moreover, as Hamilton conceded in another connection, New York’s constitution, for one, contained no provision precluding arbitrary imprisonments, “the favorite and most formidable instruments of tyranny.” In fact, not until ratification of the Fourteenth Amendment in 1868 did the Constitution even inferentially guarantee state habeas corpus.

Plainly, in criminal matters, the convention’s major concern was the oppression latent in the national government and especially the national courts. The ratifying debates and anti-Federalist writings make plain that the Revolutionary experience led Americans to fear that a powerful central government would: (1) establish a variety of new criminal definitions, particularly with respect to treason; (2) haul the accused long distances to trial, perhaps to the far-off seat of the central government; and (3) abolish trial by jury.

These were not frivolous imaginings. In England treason had been historically a plastic crime. During Henry VIII’s reign, for example, a statute of 1534 made it treason not to believe Princess Mary illegitimate and Princess Elizabeth legitimate; an act of 1536 made believing either of them legitimate treason; by an act of 1543 believing either of them illegitimate was treason.

Among the less unusual treasonable offenses, first enumerated in legislation of 1352 (familiarly known as the “Statute of Edward III”), were “compassing or imagining” (i.e., attempting or contriving) the death of the king, queen, or heir apparent; violating the king’s companion, his eldest unmarried daughter, or the wife of his eldest son; levying war against the king, adhering to his enemies, or giving them aid or comfort; and killing one of the high judicial officers.

The chronically unsettled state of the English royal succession fomented frequent accusations, trials, and

executions. Occasionally the offense was unquestionably statutory treason; more often, as in the cases of, for example, Anne Boleyn, Archbishop Thomas Cranmer, and Sir Walter Raleigh, the root of the matter was simply royal dissatisfaction.

The cruel saga of English treason law was familiar lore to the delegates. They knew the history, they knew the cases, they knew the statutes, and they knew the great treatises by legal scholars. Treason, in fact, had held a particular personal interest because, as Irving Brant has observed of the delegates to the Constitutional Convention, “virtually every member had been guilty of it less than ten years earlier.”

Against the bloody historical backdrop two Englishmen stood out starkly: Titus Oates and Algernon Sidney. Oates had been the chief informer and master of machinations in the so-called Popish Plot, an orgy of perjury from 1678 to 1682 that fed on England’s anti-Catholicism.

With his confederates Oates manufactured evidence against a score of men—nobles, bourgeois, and commoners—ultimately sending many to the scaffold for plotting the king’s death and for treasonably communicating with Roman Catholics. When during the Philadelphia debates Benjamin Franklin said that “prosecutions for treason were generally virulent; and perjury too easily made use of against innocence,” his unspoken reference was plain.

Sidney, a noble-born apostle of republicanism, had fought with the parliamentary army against Charles I but split with Cromwell over the Protector’s usurpations. After the Restoration he first lived abroad, then contracted an uneasy peace with Charles II and returned to England, where he wrote Discourses Concerning Government, an exposition of Whig philosophy that the American radicals took as a political handbook. Jefferson, indeed, acknowledged it as a philosophical source of the Declaration of Independence.

Indicted for treasonably plotting the king’s death, Sidney had been tried before the malevolent Chief Justice George Jeffreys. Although only one witness (and that a perjurious informer) testified against Sidney, Jeffreys permitted the crown to rely on the unpublished manuscript of the Discourses, seized from Sidney’s desk. The language, abstract and academic, served the prosecutor as evidence of the assassination plot.

Sidney went to the block, but his writing remained, as Jefferson said, “the best elementary book on the principles of government, as founded in natural right, which has ever been published in any language.”

Responding to five centuries of English history and endorsing Madison’s observation that “new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other,” the delegates narrowly defined treason against the United States as “only...levying War against them, or...adhering to their Enemies, giving them Aid and Comfort.”

In silent special tribute to Sidney, the convention excluded conviction of treason “unless on the Testimony [i.e., the oral statement under oath, subject to cross-examination] of two Witnesses to the same overt Act, or on Confession in open Court.” The last clause, mindful of confessions spawned by the rack and the bilbo, guaranteed that to convict himself,

the defendant must confess publicly.

The framers adopted one additional break from the past. In England conviction of treason entailed consequences beyond the usual death penalty: forfeiture to the crown of the defendant’s personal possessions and lands (or interest in land) and corruption of blood—meaning disqualification from inheriting land or, obviously more important, transmitting title. Thus sometimes personal greed reinforced hopes of political advantage and fomented accusations of treason. The delegates prohibited the concept of corruption of blood entirely and allowed forfeiture only “during the Life of the Person attainted.”

Treason is the only crime the Constitution defines, or (except for counterfeiting, piracy, and “Offenses against the Law of Nations”) mentions, in connection with Congress. Yet concern remained that the national government would use the criminal law to destroy liberty. The losing minority in the Pennsylvania ratification convention asked for an amendment stating that the judiciary power of the United States extend “in criminal cases, to such only as are expressly enumerated in the constitution.”

No one could satisfactorily address this view because no government could long exist if it did not reserve the implicit right to meet changing conditions with new definitions of criminal conduct. The Constitution, in fact, gave Congress explicit authority to make “all Laws [including criminal laws] which shall be necessary and proper for carrying into Execution” the government’s vested powers.

The place and mode of criminal trials, however, were more controllable subjects of popular alarm. American fear of trial in a distant court had solid historical roots. One of the grounds for the impeachment in 1667 of Lord Clarendon, the Stuarts’ powerful minister, was his sending defendants out of the realm. Later and closer, during the decade just before the Revolution, a series of acts ancient and recent had threatened Americans, especially Bostonians, accused of various anti-Establishment offenses with trial in England, before English jurors.

In some instances Parliament or the local authorities had sought to eliminate the jury right entirely. Revenue legislation in 1764 and 1768 put the customs enforcement into the juryless courts of the vice admiralty. Twice, in celebrated murder prosecutions with maritime connections, John Adams had battled for a jury trial—unsuccessfully, although each client gained acquittal.

To prevent similar threats from the new national government, the framers specified that trial of all crimes, save impeachment, “shall be by Jury,” the trial to be “held in the State where the said Crimes shall have been committed....”

As aware of the past as they were conscious of posterity, the delegates had tried to make the Constitution what Hamilton called the “bill of rights of the Union.” Americans could say, he conceded, that the Constitution “does not go far enough,” but not that it ignored rights. Although the first ten amendments later clarified much of what had been merely assumed, Hamilton was right to exult: “The Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS.”

It was an overall declaration of rights because its