The Need for a new Constitution

UNIT 1

THE HISTORY OF THE CONSTITUTION

 

TEXT 1

The Need for a new Constitution

PRE-READING TASK: 1) Was the U.S. Constitution the first one in history?

2) Were there other early Constitutions?

1. For most of modern history the word constitution has meant the entire legal framework of a nation. For example, the English "constitution" includes the Magna Charta of 1215, which was the first written set of restrictions on kingly power, the Petition of Right of 1628, the English Bill of Rights of 1689, the Reform Bills of 1832 and 1867, many statutes, judicial decisions, and royal pronouncements, as well as common law and established government customs and usages. Thus, the English constitution is both much less than and much more than a written constitution such as the American one. In fact, a written constitution – setting forth a plan of government, establishing its institutions, and proclaiming the rights of citizens – is a relatively new development.

2. Although claims have been made for the Mayflower Compact of 1620, the 1630 Charter of the Massachusetts Bay Colony, and the 1639 Fundamental Orders of Connecticut, many scholars agree that the first written constitution of government was England's 1653 Instrument of Government. The Instrument, which set out a new, republican form of government, and its 1657 successor, the Humble Petition and Advice, were swept away by the Restoration of Charles II in 1660 and had almost no influence on either English or American constitutional development, but they did presage many later reforms in England.

3. The English colonists in North America regarded themselves as Englishmen possessing all the rights of Englishmen, even though they lived thousands of miles away from the mother country. Each colony had some form of written instrument of government by the eighteenth century, usually a royal charter. Originally, there were three types of colonies: joint-stock companies, organized as economic ventures under a charter granted by the Crown conferring certain privileges, as with trade (for example, Virginia and Massachusetts Bay); compacts, agreements reached by and among the colonists themselves (Plymouth; Providence, R.I.; Fundamental Orders of Connecticut); and proprietary colonies, in which the Crown granted the land composing the colony to one or more landholders known as proprietors. By the mid-eighteenth century, most of the colonies were royal colonies, in which the former joint-stock company or compact form had been replaced by direct royal authority residing in the governor. In Maryland, Pennsylvania, and Delaware, the proprietors (not the Crown) appointed the governors; in Connecticut and Rhode Island, the surviving charter colonies, the colonists themselves chose their governors. Each colony also had a two-house, or bicameral, legislature; the lower house was elected by those colonists who could meet qualifications based on the amount of real or personal property they had, while the upper house was selected by the lower house. The upper house, or council, had both legislative and executive powers and duties, in that it also advised the governor on a daily basis. The royal charters that most colonies possessed became the focus of disputes between the colonists and their governments, with the colonials challenging what they saw as arbitrary and unconstitutional exercises of power.

4. The initial stages of the American Revolution were moves and counter-moves in an intricate but fierce struggle to determine the limits of Parliamentary authority. Parliament retained supreme legislative power over the colonies, while at the same time other key agencies, such as the Privy Council, the Secretary of State, the Treasury, the Admiralty, and the Board of Trade, also had responsibility for colonial affairs, with the result that for most of the seventeenth and eighteenth centuries British administration of the colonies was entangled in bureaucratic infighting and prey to incompetence and mismanagement.

5. In May of 1776, anticipating its action two months later in the Declaration of Independence, the Second Continental Congress passed a resolution calling upon the colonies to prepare new, written constitutions in case it became necessary for them to separate from England. A few colonies merely modified their old charters, deleting all references to the king and England, but within the next few years most prepared entirely new, republican constitutions. These reflected the Americans' concern with arbitrary power, particularly arbitrary executive power. Pennsylvania's constitution of 1776 even did away, with a separate executive, establishing instead a Supreme Executive Council chosen by and under the thumb of its one-house legislature. Other states provided for a weak governor and a powerful two-house legislature. Still others, notably New York in 1777 and Massachusetts in 1780, created an independent governor, who was armed with veto power over legislation (although New York's constitution granted only a qualified veto power to a council of revision composed of the governor and several state judges), and a system of checks and balances among the legislative, executive, and judicial branches of government. Massachusetts's most significant contribution to American constitutional thought was a stipulation mandating ratification of its constitution by the people in special conventions called for that purpose. Previous state constitutions merely went into effect after being adopted by their legislatures. The Massachusetts idea recognized the distinction between constitutions and mere statutes. Its constitution - chiefly the work of John Adams - and the New York one – largely that of John Jay - were important models and sources for the subsequent framing of the U.S. Constitution.