Jack Greene, historian and author of numerous influential works in American colonial and constitutional history, is the recipient of this year’s Jack Miller Center Chairman’s Award for Academic Excellence.
The award was presented at JMC’s 12th annual Summit on Higher Education, held this year in Philadelphia. Professor Greene’s acceptance talk is presented below in its entirety.
“The Empirical and Historical Roots of the Constitution of 1787: An Acceptance Talk”
JMC Chairman’s Award for Academic Excellence
November 6, 2015
I am profoundly grateful for, excited about, and honored to receive this years’ Jack Miller Center Award for Academic Excellence, and I propose to use this opportunity to make a case for an expansion of constitutional studies, specifically as they have developed in the United States over the past two centuries. First, let me assure you that my remarks will be relatively brief, and not only because Pamela Edwards threatened to withhold the award if I went on too long but also because I am determined not to be garrulous in front of any audience, unlike many elderly academics, a category that I am not overly eager to join. Rather than presenting a scholarly analysis drawn from my current research and scholarship, I intend instead to talk briefly about how my own research and that of my generation should have changed the common view of the process of constitution-making in general and the United States Federal Constitution in particular.
Conventionally, the community of constitutional scholars has tended to regard the Constitution of 1787, after the achievement of independence, as the second great contribution of this country, as a country , to world political development, or, to borrow a phrase from the song writer Steve Allen, as the start of something big. As the first national written constitution, it both represented an amazing political achievement for its time and became a model for almost universal emulation among national states (Great Britain being a proud exception) and supra-national political organizations. No self-respecting national or multi-national entity can now imagine not having a formal written constitution to lay out the structure of governance and to express the animating values to which that polity is devoted. An extraordinary amount of fine and usually celebratory scholarship has been written from this perspective, and will no doubt continue to be.
What I want to suggest tonight is that the Constitution was not only the start of something big but also the culmination of a long, extensive, and often intensive process of constitution making and constitutional theorizing over the previous two or three centuries and that that process, especially the experience of making, defining, and maintaining constitutions, powerfully informed the great achievement of 1787. This process went on all over Europe and in all the Americas, but here I have time to focus only on its operation in one segment of that broader European world: the smaller Anglo-American during the two centuries beginning in the 1590s, a world of extraordinary constitutional dynamism in which people of rival persuasions struggled to shape constitutions to conform to their respective visions and to insure that their achievements would be irrevocable. In that Anglo-American world, legal and constitutional creativity was the norm.
There is no time here and probably no need, with this learned audience, to rehearse the great constitutional struggles in seventeenth-century England over the Crown’s prerogative powers, the independent population’s right to consensual governance in the form of parliaments and juries, and the inviolability of the rule of law–except perhaps to reiterate the well-known point that, according to emerging English conceptions, the constitution was never thought of in modern, that is later American, terms as a single and inclusive written document. Rather, English writers of all persuasions conceived of it as an accumulation of customary practices, long-standing legal procedures and principles, and basic individual and corporate rights that had taken shape over the centuries–not just in the courts and legislative chambers of the capital, but also in the various administrative and judicial institutions of local communities, a constitution that well after the Glorious Revolution was based mostly, not upon codified statutes or other written documents, but upon custom–unwritten but widely accepted law –and the slow accretion of precedents favorable to the rights of the citizenry.
Only over the seven or eight decades following the Glorious Revolution did the British constitution become, as Blackstone asserted in the 1760s in his Commentaries , whatever Parliament said it was. Largely a development of the mid-eighteenth century, this concept of a sovereign Parliament was just hardening into an orthodoxy in the 1760s, in no small part as the result of the intensive constitutional debate between metropolis and colonies over the constitutional organization of the British Empire in the decade beginning in 1765.
On the colonial as well as the metropolitan side, this debate reflected a century and a half of constitutional experience. Because distance made the incorporation of American colonies into the realm of England impossible, they early assumed the form of separate and distinct polities, each colony a separate corporate entity, a body politic authorized and recognized by the crown, with jurisdiction over a well-defined territory and its own distinctive constitution, institutions, laws, customs, and, eventually, history and identity. Colonization thus operated as an extensive opportunity for the expansion of the English constitutional impulse to the New World, and virtually every one of the major groups involved–settlers, traders, and investors–took a hand at it.
Mostly emigrants from the British Isles and their descendants, new settler populations on the ground exerted the principal agency in establishing and constituting these new American polities. Determined to protect the property they were accumulating in the colonies, settler populations exhibited strong demands for the extension to the colonies of the same rights to security of property and civic participation that appertained to the empowered, high-status, and independent property holders in the polities from which they came and for the construction of a system of governance that involved the active consultation with, if not the formal consent of, local settlers. The earliest stages of colonization thus resulted in the emergence in new colonial peripheries of many new and relatively autonomous centers of English authority effectively formed and constituted under local control.
Mostly settled contemporaneously with the great constitutional struggles of the seventeenth century, the new polities of English immigrants drew heavily upon an English jurisprudential political discourse that emphasized the role of law as a restraint upon royal power and stressed the process of consent as expressed through two institutions for the express making of law: juries and parliaments. Regarding their capacity to enjoy the English system of law and liberty as essential to maintaining their identity as English people, throughout colonial English America they made every effort to construct those communities on English legal foundations. They were particularly insistent upon including a representative component in their several provincial constitutions.
Created early in the colonizing process, these legislative bodies proved to be strident defenders of the colonists’ claims to English rights to limited and consensual government and passionate advocates for local control over domestic colonial affairs of the kind traditionally exhibited by English counties and other localities. Accordingly, well ahead of Locke’s elegant formulation of the theory of emigration in his Two Treatises on Government , colonial leaders had developed the view that English people had a right to migrate to a new country, to take their constitutional rights as Englishmen with them into the new polities they constituted overseas, and to establish local institutions and develop local customs to secure those rights to themselves and their posterity.
From the colonists’ vantage point, the crown seemed to have recognized the legitimacy of this theory by granting many of them royal charters that not only authorized them to establish government over specific territories but also confirmed their entitlement to the traditional rights of Englishmen. Contrary to the assumptions of several generations of American constitutional historians, however, neither early nor later settlers ever seemed to have thought of their colonial constitutions as being principally contained within those charters. Rather, they regarded the charters as English whig theorists regarded Magna Charta and the Petition of Right, as mere legal confirmations by the English crown of the people’s entitlement to rights they already possessed by virtue of their birthright as Englishmen. In any case, the crown subsequently revoked, withdrew, purchased, or amended the charters of most colonies. By 1750, only five colonies, all on the continent, still possessed them. Indeed, like the English constitution before the Glorious Revolution, the several colonial constitutions were, from the start, primarily unwritten customary constitutions that developed slowly over time through a series of precedents that functioned to protect and extend the colonists’ inherited rights as English people.
Notwithstanding the provisions in the early charters, English officials were never willing explicitly to admit in their fullest extent the colonists’ claims to the rights of Englishmen. For that reason, the exact nature of the colonial constitutions rapidly became the main point of contention between crown and colonies in much the same way that the nature of the English constitution had been at the heart of struggles between crown and Parliament in seventeenth-century England. Because they controlled the power of the purse, however, and because the crown’s colonial governors found it impossible to govern effectively without their consent, the colonial assemblies managed to retain in practice the authority and status within their respective jurisdictions that crown officials denied them in theory. Throughout the century from 1660 to 1760, however, recurrent metropolitan challenges to colonial legislative authority operated to keep constitutional issues at the forefront of imperial relations and a continuing source of friction between metropolitan authorities and colonial legislators.
Like the English House of Commons itself had done during the seventeenth century, the colonial assemblies by the eighteenth century had thus managed though precedent and custom to establish within their several jurisdictions their authority and status as provincial parliaments, as the leading force in colonial constitutions, and as the primary guardians of their constituents’ inherited rights as Englishmen, including especially the right not to be subjected to laws or taxes relating to their internal affairs without the consent of their representatives in assembly. By the early 1760s the unformulated and unasked question was whether, in the process of creating and maintaining the constitutions of their respective polities, the several legislatures and judicial systems spread over the empire had not also changed the constitution of the whole to which they belonged. Without yet having formulated a coherent and fully articulated sense of empire, the British state had not, before the 1760s, developed any explicit sense of an imperial constitution, instead tending to conflate the domestic British constitution with the imperial one.
The Stamp Act crisis set off a decade-long and empire-wide debate, at the core of which was the issue of the constitutional organization of the British Empire. Building on their extensive experience with constitutional matters, colonial spokesmen creatively worked out the argument that over the previous 150 years the British Empire had experienced the construction of an unwritten customary constitution distinct from either the British constitution or the individual colonial constitutions. They contended that by this constitution the empire had developed in a federal way, with legislative authority distributed among many local legislatures and with the British Parliament’s retaining unlimited jurisdiction only over matters of specific concern within Great Britain and of general concern to the empire as a whole. They argued that these customary constitutional developments limited Parliament’s authority in the colonial sphere. In this view, Parliament was subordinate, and could not act contrary to, this unwritten imperial constitution.
Enormously frustrated by their inability to wrest any recognition from the British government of the validity of their view of the constitutional organization of the empire between 1765 and 1775, colonial spokesmen accompanied their respective declarations of independence in 1776 with a movement to put their constitutions in explicit and concrete form by writing them down, and by 1781 each of the thirteen revolting colonies had adopted a written constitution in a process that sometimes led in novel and creative directions but in every case stood solidly on sturdy colonial foundations. By the end of the War for Independence, the tradition of written constitutions, the single most important departure from both the former colonists’ English inheritance and their own earlier colonial experience, had been firmly established in American political life.
No wonder that the highly experienced framers of the Constitution of 1787 used the word experience so often, “more often” than any other equivalent word, according to Douglass Adair. I once calculated that the delegates had a combined record of public service in colonial, state, and continental offices of well over 750 years, not including service in local government. And think how dramatically that figure would be extended if we added the experience of all those people who participated in the debates it generated and in the ratifying conventions that approved it. If that experience included learned insights from eastern Atlantic theorists such as Montesquieu, Blackstone, and Hume and from Americans’ own recent experiments in republican constitution making at the state level, it also included more than six generations of accumulated western Atlantic learning from an almost continuous empirical engagement with issues of constitutional construction, definition, and maintenance, an engagement that pushed the framers in the direction of recreating a federal system that respected the distinctiveness of its member states, left them with authority over their internal affairs, and severely limited the authority of the central government–a system, in short, in which the dispersal , not the concentration , of political authority was for the next century and a half the most predominant feature.
From the perspective I have here outlined, a perspective made possible by my generation’s historical investigations of the orgy of constitutional activity in the seventeenth and eighteenth century empire, the Constitution of 1787 represented not merely a new beginning but the culmination of a very long search for a solution to the problem of how to distribute authority in an extended polity without depriving any segment of equal rights and status. As the American Revolution made clear, this problem could not be solved by coercion, for, ultimately, as Madison said in the convention, repeating an aphorism of early modern political analysts, the authority of any government rests upon the opinion of the governed. Moreover, because opinion changes over time as a result of myriad negotiations among advocates of competing constituencies, even written constitutions have to be dynamic and responsive to shifting conditions–in the spirit of the unwritten constitutions that English Americans crafted during their long constitutional struggles in the colonial era. Writing down the basic outlines turned out to be merely the first step in an ongoing and never ending process of constitutionalizing the extended polity in which we live.