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The Origins of American Constitutionalism

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In recent years, writers like Michael Zuckert have propounded a solution to the republican/liberalism debate by suggesting that liberalism is the core political philosophy to which the civic republican political science was adapted.

Lutz' magnificent and pithy volume (about 170 pages of text)suggests that Zuckert and others may have it all wrong. That it was in fact the American colonial experience that generated a core political theory to which was adapted Lockean political philosophy, the common law tradition and Whig political science.

In Lutz' telling, the American constitutional tradition started with the charters and convenants that founded the earliest American colonies. Lutz carefullly delineates between a compact, a convenant and a constitution. Both compacts and convenants were agreements "creating something that we would today recognize as a community" (p.17). The difference between the two was that the convenant was witnessed by the highest authority; either secular (King) or religious (God). The original colonial charters granted the colonists the right to institute governments to govern themselves both politically and religiously.

One of the ironies of Lutz' story is that the first step from a convenant toward a founding compact (one that was witnessed by neither King nor God) came in a community (Providence, RI) "so religious that taking oaths was regarded as tantamount to taking God's name in vain"(p.28). The implication of this was that the Providence Agreement was based on the authority of the signers themselves. Thus, Lutz argues that on August 20, 1637 (decades before any of Locke's works)the American tradition of popular sovereignity started. Lutz examines many of the subsequent founding documents, e.g., Fundamental Orders of Connecticut, the Massachusetts Body of Liberties to see how the fundamental tenets and assumptions of what he has called American theory of popular control developed (this theory is summarized on pp 94-95). Along the way, Lutz makes his argument that it was this developing body of American theory and experience that determined which aspect of various European intellectual or legal traditions were adapted by the colonists.

From that point, Lutz then examines how that tradition evolved in the first state constitutions, the Declaration of Independence, the Articles of Confederation and then the Constitution.

His examination of these documents is full of insights. He feels that the dual citizenship formalized in the Constitution was implied in parts of the Declaration ("the thirteen united States of America" "it becomes necessary for one people to dissolve the political bands")(p.116)

Another lesson was to take the judiciary away from the control of the legislature as it was in the early state constitutions. The U.S. constitution created the judiciary as a seperate branch for the first time, an innovation that later state constitutions followed(p.109).

This independence of the judiciary is one of the ways that the U.S. Constitution weakens the legislature which was an important development in American political theory.

But this is one of the few instance where the U.S. Constitution displays a negative reaction to those early state constitutions. In fact, the original impetus for Lutz to work on this project was the realization that the U.S. Constitution could not be understood in isolation from those state documents. "Referred to directly or by implication more than fifty times in forty-two sections of the U.S. Constitution, these state constitutions had to be read in order to understand what the document said" (p.2)

Overall, I would have to say that this book of Lutz' (especially in conjunction with his collection of the colonial documents published by the Liberty Fund) is essential for anything approaching an accurate understanding of our constitutional theory. Lutz has written an enduring work.

The primary thesis of Donald Lutz in his book The Origins of American Constitutionalism is that the authors of US Constitution drew on many sources: Biblical (for the theory and form of covenants), English Common Law, the unwritten English constitution, the political principles of the English Whigs, theoretical and philosophical writings from the European Enlightenment (especially those of Montesquieu, Hume, Locke and Blackstone), and the 150 years of prior colonial heritage documents in the form of colonial charters, compacts, covenants, and constitutions. Lutz makes a strong case that the colonial heritage documents are both the dominant and an often overlooked source. The following notes outline, I hope, some of the major points in his book.

The royal charters issued to colonists starting with Virginia in 1607 were the king's declaration to the colonists of their rights and responsibilities to him. The colonists typically drafted a compact or covenant, an agreement among themselves, defining how they would govern themselves in accordance with the royal charters, the most well know being the Mayflower Compact. Subsequently, the king appointed royal governors to the colonies and the colonists' self-governing bodies became extra-governmental bodies representing the colonists' interests to the governors. As these colonial bodies became more formalized, their organizational rules also became more formalized, evolving in to prototype colonial constitutions, as the colonial bodies evolved from extra-governmental bodies into governmental bodies.

The early colonial charters were issued by Kings James I and Charles I, the early Stuart absolutists who were devoted to the doctrine of the divine right of kings. These charters made no mention of parliament as having any authority over the colonies. Subsequently, in the Glorious Revolution of 1688, parliament replaced the king as the ultimate sovereign of England. However, the prior royal colonial charters were not modified to reflect this change in sovereignty. Consequently, the colonists in the 1770s felt fully justified in resisting the laws of parliament.

In making his case for the primacy of the early colonial constitutional documents, Lutz notes that 20% of the Bill of Rights in the US Constitution can be traced directly to Magna Carta, 75% from the pre 1689 colonial documents.

The European Enlightenment writers cited above were not yet born at the time that the early colonial documents were written. The authors of the US Constitution undoubtedly used some of their arguments to support their proposed form of government, but the form itself came primarily from the indigenous colonial documents.

At the time of the Constitutional Convention in 1787, the states already existed, the convention delegates were selected by the states as their representatives, and the draft constitution they produced would be submitted to the states for ratification. Consequently, federalism, the dual sovereignty of the states and federal governments, was a foregone conclusion. The states were unlikely to vote themselves out of existence.

Lutz's book was heavy reading, lots of theory and philosophy, but well worth the effort. I recommend it to anyone seriously interested in understanding the basis for the American constitutional structure.

This 170 page book manages to cover the origins of the American Constitution more completely than any other work I have read.

The author, Donald S. Lutz, convincingly demonstrates the sources of the American Constitutional ideas. The sources are not at all what I was taught in school. When mentioned at all, constitutional ideas like separation of powers and three branches of government were linked to a few European philosphers like Locke and Montesquieu;

Lutz convincingly shows that not only are the ideas on government contained in the Constitution uniquely American, but that the whole idea of constitutionalism is an American invention. In 1787 the only written Constitutions that existed in the world were the Federal US Constitution and the 13 State Constitutions.

Even the Bill of Rights contains mostly rights elucidated and developed by the Americans. Lutz points out that of the 27 rights in the US Bill of Rights only 6 were first found in Magna Carta. 75% of these rights were found in American documents prior to the English Bill of Rights in 1689 or the writings of John Locke. While even now most texts will attribute to John Locke the rights of "life, liberty, and the pursuit of happiness", the origins of these ideas came from much earlier American documents.

For example, from the Massachusetts laws of 1641 (Locke was only 9 years old at the time), we read "No mans life shall be taken away... no mans person shall be arrested.... no mans goods or estate shall be taken away..." Life, liberty and property as rights were first written here from John Cotton and Nathaniel Ward and the Puritans who found them in the Bible and implicit in the English Common Law; Locke had nothing to do with it.

Another aspect that Lutz covers well is the transition from covenant theology to constitutional government. Lutz also notes the US Constitution was written after 150 years of experieince in self-government and after all 13 states writing their Constitutions. Experience was the main source of most government institutions; not European philosphy, though the founders often cited then-current philosphers like Locke and others.

In short, this is an excellent, scholarly work that will educate the reader more than all the college history, political science classes and poorly-researched wikipedia articles put together. Highly recommended. As the author wrote near the end of the book, "The origins of the American Constitution, like the constitutional tradition of which it is a part, are complex and manifold, but ultimately planted firmly in American soil."

The first chapter was very boring to me, because the author just gets into a lengthy definition of words.

But then he goes into the governmental history of the colonies and shares great details: on how the colonies came from single little towns to "counties" and to states through charters, covenants, compacts all the way to state constitutions; what and what not they used from British laws and how they viewed and contracted themselves in relations to England and the crown.

It is a very thought out and intellectually written history documentation.