Special Issue: The Constitution's Deep Roots
Our nominally young constitution draws from millennia of hard-earned wisdom.
When the Constitutional Convention met in Philadelphia between May and September of 1787, three things were paramount in the minds of the attendees:
Create a superior federal government than the weak and failing Articles of Confederation.
Obtaining approval for the form of the new government by a minimum of nine states.
Provide this governmental structure in a very short time frame.
They miraculously created their “more perfect union” in less than six months. As it happened, they received ratification from all thirteen states.
The creation of an entity so resilient that it has maintained our republic through wars, depressions, disasters, both natural and human-made, and Congresses and 46 chief executives over 240 years, is astounding. That they built such an institution in five months is even more amazing. Yet the ideas implemented by the Constitution were not new to the Founders, but thoroughly rooted in history. Concepts including separation of powers, checks and balances, and limited government all could be traced back hundreds, if not thousands, of years prior to 1787.
The writers, including the primary architect James Madison, drew on beliefs borne of European Enlightenment philosophers such as John Locke, David Hume, and Charles-Louis de Montesquieu. In turn, these thinkers, steeped in the classics, the Bible, and European history, developed our constitutional principles from these more ancient and venerated sources.
Montesquieu’s political model featured the division of power into legislative, executive, and judicial branches. He asserted that, to most effectively promote liberty, these three powers must be separate and acting independently. He stated in his Spirit of the Laws (1748) that “constant experience shows us that every man invested with power is apt to abuse it and to carry his authority as far as it will go.”
Montesquieu based much of his thinking on the Roman Republic, which existed between 509 and 27 BCE. In the Roman model, power was divided between the Senate and the People in their assemblies, and even having not one but two consuls, the senior magistrates were elected simultaneously. These consuls also served only a single year. Other Roman offices, such as aediles and praetors, also had colleagues with authorities and duties divided among them.
Another vital aspect of the Roman constitution was checks and balances. Not only did the election of two consuls serve as a check against each other, but tribunes of the plebs, of whom ten were elected, had veto power over senate legislation.
Even before Montesquieu, John Locke advocated for separation of powers and limited government. In his Two Treatises of Government (1689) Locke believed the legislative body is central to the government. Yet he also noted this branch cannot create laws that violate the law of nature because the enforcement of the natural law regarding life, liberty, and property is the rationale of the whole system. Laws must apply equitably to all citizens and not favor particular interests. A division of legislative, executive, and judicial powers was necessary to protect these rights.
Another influence was the British Magna Carta. By curbing the power of English monarchs, the Magna Carta stood for a limited government. The Magna Carta guaranteed fundamental rights such as due process of law, freedom from arbitrary imprisonment, and trial by a jury of peers. These rights were enshrined in the Constitution and Bill of Rights. One example is the Fifth Amendment’s guarantee of due process, which emanated from the Magna Carta’s “law of the land” provision.
As members of the British Empire until 1776, the Founders understood the separation of powers under a government with a monarch, House of Lords, House of Commons, and independent judiciary as part of the unwritten British Constitution. One example includes the judiciary. Though originally an arm of the crown, the Act of Settlement in 1701 established that High Court Judges and Lords Justice of Appeal would hold office during good behavior, a significant change from the previous practice of judges being appointed at the king’s pleasure.
Today we see unprecedented threats to our constitutional order. Desiring different judicial ruling outcomes, members of the legislative branch are exploring ways to limit the independence of the judiciary. The legislature itself is inexorably ceding its law-making powers to the executive. The voice of history from thinkers such as Locke is prescient, “The legislative can have no power to transfer their authority of making laws, and place it in other hands.”
There will be those who wish to abrogate existing institutional structures to acquire greater power, often veiled as being for the common good. We have centuries of experience showing the folly of that concept and the importance of maintaining those structures which comprise the core of our constitutional government.
AD Tippet is the founder and Publisher of the Conservative Historian. Aves has conducted extensive research in Political, Religious, Social, and Educational history across all eras and geographies. He has been writing and podcasting for over 12 years. In 2020, he published his first book, The Conservative Historian. He has degrees in history, education, and an MBA. @BelAves
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