Progressing
to a
Democratic
Republic

Every civilization has a code by which it is governed, whether written or simply practiced. As is enumerated in the “Kingdoms” articles, this evolves over time and is influenced by the founding tenets of that society. In the United States of America, that codification became the U.S. Constitution upon which all following laws were to be rooted. In this article, we will characterize how Constitutional Law came into being and how it has changed over four hundred years.

The American Colonies (North American, English-rooted, colonized, non-native) were birthed out of the history of Europe as that was the main source of early colonizers. While the Spanish were the first Europeans on the continent, they remained in the South and Mesoamerica. The French also had an early presence but were mostly in the North along the St. Lawrence drainage and West into the Mississippi drainage. It was the English-sponsored colonizers that settled upon the eastern seaboard between the Atlantic Ocean and the Appalachians and in the more temperate zone of the continent.

MAYFLOWER COMPACT

The first enduring English colonizers arrived on the Mayflower and were a collection of Puritans, tradesmen and those seeking something new. Before they embarked onto the continent, the colonizers drew up a document which was an agreement between those settlers as to basic goals, responsibilities and governing principles for the Colony. This became the Mayflower Compact although more formally known as “The Agreement Between the Settlers of New Plymouth(Massachusetts)”. While it included a pledge of loyalty to the King of England and obligations to the Company of Merchant Adventurers of London who had sponsored the endeavor, its primary role was to define how the various interests of the settlers would be protected from the individual groups within the Colony. They recognized the need for a common consent to rules and regulations to ensure the general welfare and sustainability of the Colony. Not surprisingly, the foundation of the Compact was in majority agreement upon what was best for survival and perpetuation of the Plymouth Colony. The Compact was signed by forty-one of the voyage’s one hundred and one settlers (heads of families, adventurers, organizers – no women or children) on November 21, 1620 before disembarking and beginning construction of the settlement. Because of the tragic failures of earlier colonial attempts (Jamestown, 1607-1608, death of almost 90% of 500 colonists first winter), Plymouth was convinced a binding agreement of parties for common welfare was foundational to possible success.

ENGLISH CHARTERS AND LAW

The settlers were English settlers and were still governed by English law albeit a little remote. In England, the form of rule became a constitutional monarchy in 1688 but was already moving democratic with King James Charles Stuart (King James VI of Scotland, King James I of Scotland, England, Ireland) and the Parliament of England which was bicameral during this period with the House of Commons and the House of Lords. The Tudor monarchy had “given” some degree of responsibility and authority to Parliament for governing. While participation in the House of Lords was inherited or given by royal decree, the House of Commons membership was through vote of the adult male population although participation was sorely limited (less than 5%) by local political bosses. This changing climate remained at the time of Plymouth Colony.

The concept of democracy (Greek for ‘people’ + ‘rule’), the participation of the citizen in government decisions, dates back at least to ancient Athens, Greece (c. 500 BC) where every free male citizen was allowed to take part in the discussions of rule to the extent of it being a true direct democracy for the enabled citizens (women and slaves excluded). Citizens not only discussed but decided the matters of the day. By the time of the English Parliament in the 1600s, the democratic model was more akin to the early Mesopotamia or India where a ruling group “represented” the populace by giving counsel to the ruler. In some societies this more clearly is defined as an oligarchy, an elite group that has special privileges of rule but not necessarily in the interests of the greater populace.

As additional colonies were established under the British Crown and various economic enterprises, charters were issued typically with a colony governor and a set of stipulations as to the establishment of trade, commerce, property rights and obligations to the sponsoring parties. In the 150 years between the founding of Plymouth Colony and the War of Rebellion, the individual colonies were self-governing but under the oversight, protection and obligation (taxes) with the Crown. The Thirteen Colonies had differing styles of government – charters as proprietary, royal or corporate – and British military presence and societies. The variation tended to be due to the economics of the colony, the settlers and any particular premise of the Colony’s founding. The need for representative democracy was not as prevalent as the need to survive in a colonial environment. The settlers tended to believe themselves more independent than the King, Parliament and sponsoring groups believed them to be. Britain provided the protection as in the French & Indian Wars or the struggles in the South or West and expected the Colonies to submit to British rule and for the benefit of the Empire. The voice of the Colonies was largely ignored by Parliament, the King and the colonial governors; the resident military was British and answered to the King, serving at His pleasure. Whoever held the Charter for the Colony was the only entity directly accountable to the Crown. Any additional government was deemed unnecessary.

As issues of conflict with the Crown continued and the Colonies expanded along the seaboard and then inland, the colonial settlers sought means of expressing grievances; their belief was that their local assemblies should be on equal terms with the dictates of Parliament and they should have say in their own governance. This was ignored by the Crown in ways that would have satisfied the colonists. By the 1760s, the sense of being “tied” to the Crown was waning as the settlers more often had to fight their own battles in the West.

MOVEMENT TOWARD SELF-GOVERNING

By 1773 Committees of Correspondence were present in many towns and colonies and became active in representing the settlers in matters of governing irrespective of what the Crown decreed. The Fall of 1774, delegates from twelve of the thirteen colonies met in response to the British naval blockade of Boston Harbor and Parliament’s passage of the Intolerable Acts. This First Continental Congress was intended as a means to find amicable resolutions of the conflict with the Crown and suggested several courses of action called the Resolves. When the King failed to redress the grievances expressed and Parliament declared the colonies in a state of rebellion, a Second Continental Congress was called and all thirteen colonies participated. This Congress (1775-1781) was the representative body from all of the colonies which was instrumental in the constituting of a federation of colonies to take systematic steps to create the United Colonies of North America which was renamed the following year as the United States of America. This Congress was responsible as the government of the Colonies to raise a militia, determine tactics to advance the cause of the Colonies and engage allies to support the course of action for the States. What began as petitions to justify the cause of the Colonies or to re-establish peace with England turned into a declaration of independence when rebuffed again in 1776. For the next five years, British ground forces and naval assets were reinforced by the motherland against the Colonies in what the British knew as the War of Rebellion. With the support of the French and Spanish, the States were able to win several decisive battles culminating with the Battle of Yorktown in 1781 and the surrender of Britain’s General Cornwallis. The Franco-Spanish war against Britain continued for a couple more years but the States were largely left to restructure. With the Treaty of Paris, September 1783, Britain recognized the sovereignty and independence of the Colonies.

FORMS OF GOVERNING

Government does not take place without forethought but a new nation had not been the original intent of the colonialists. When it became evident that the States would be functioning independent of the constraints of the British Empire, the Second Continental Congress was forced to create a structure for self-government. The Congress (delegates of the Colonies) worked for a year debating and reflecting on how to structure this government and finally passed the Articles of Confederation and Perpetual Union on November 15, 1777. But. The Articles included the requirement that all of the thirteen colonies were required to approve the Articles and it was not until February 2, 1781 that the last colony, Maryland, finally agreed to the document.

Part of the difficulty in ratification by all thirteen colonies was how the governing entity, Congress, was to be constituted. Large states wanted larger numbers of representatives in the Congress while smaller states wanted equal representation. The Articles of Confederation was found to be weak in that the ties that joined the colonies, now called States, treated each State as a sovereign entity and did not guarantee solidarity in mutual defense, commerce, finance or simple cooperation between states. This had the same flaw as the historical alliances that had at the core of European politics for three thousand years – regional or ethnic or cultural differences tend to divide over time such that “perpetual” was brief. State sovereignty as defined in the Articles:

“Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated.”

The balance of Articles did little to strengthen this position. On means of forming an Army, funding, maintaining structure, currency, trade the document was largely silent and therefore when the U.S. tried to function as an independent, sovereign nation, it tended to be unable. When John Adams went to Europe after the Treaty of Paris as the U.S. representative, he was unable to secure treaties because the U.S. had no means to present the unified position of a singular nation. It was not until March 4, 1789 that the Constitution of the United States replaced the Articles of Confederation and Perpetual Union.

The Constitution was intended to be a more comprehensive codification of the supreme laws of the United States and included the structure of a Federal government (Legislative, Executive and Judicial), separation of powers within branches of that government, rights, responsibilities and limits of both State and Federal entities, funding and the bicameral Legislature to represent both by population in Representative members of House and by equality in Senator members in Senate.

DEMOCRACY OR REPUBLIC

The conflict over whether to be a democracy or to be a republic rested in the nuances of similarities but which held significant differences. As mentioned earlier, “democracy” in the truest since (Greek) rests upon each citizen having the right and opportunity to voice opinion on a matter and ability to vote on the decision. “Republic” has the similarity of citizens being entitled to voice opinions and ability to vote but requires representation through leaders and representatives rather than direct participation at all levels. The U.S. Constitution provides the structure for a republic that uses the democratic process to select and influence the higher levels of leadership who then are entrusted with the actual decisions and mechanisms of governance. The republic form of governance is not peculiar to the U.S. and expressions have existed around the world and many still exist, some with greater levels of democracy than the U.S.

CODIFICATION OF CITIZEN RIGHTS

While much of the core Constitution details the structure of federal government, it also follows the British form of the English Bill of Rights which deal specifically with rights of the citizenry. Many of the base rights were already found in state constitutions but it was felt necessary to delineate clearly certain rights not to be infringed upon by the federal government. The first group of rights became known as the U.S. Bill of Rights and included ten statements relative to unalienable rights of all citizens dealing with liberty, justice and including that rights exist beyond the scope of government involvement. These were part of the 1791 first round of amendments to the Constitution and followed the debates that arose during the ratification of that document and were added along the lines listed in Article V of the Constitution. These guidelines make the amending of the core Constitution difficult such that they tend to be matters of great consideration and not passing whims. Since 1789 only thirty-three amendments have been sent to the States for the final step of ratification and to date twenty-seven amendments have been ratified out of the hundreds that have begun the journey through Congress but never completed the process. The Eighteenth Amendment (1919) has the unique distinction of being the only amendment to be repealed which was by the Twenty-first Amendment (1933) repealing Prohibition. The longest ratification goes to the Twenty-seventh which stipulates that Congressional salary increases may not take effect until after the following election of representatives. The First Congress sent the Congressional Compensation Act of 1789 to the States where it languished until 1982 when it was “rediscovered” by a college student who set in motion the States ratification which was completed ten years later – 202 years, 7 months and 10 days later after first proposed. Seven states ratified it in the 18^th Century, one in the 19^th Century and thirty-one more to make it official by May 18, 1992. Seven more ratified after it was officially part of the Constitution and another four states have yet to ratify.

CONSIDERATIONS

There were a couple key issues in the original considerations:

1. Balance of Power: The Constitution was constructed with a deliberate separation of power between three distinct branches: The Legislative in the bicameral (two chamber) Congress, the Executive composed of the President and any officers serving under this office and the Judicial consisting of the Supreme Court and other federal courts. The colonists had been aware of the abuse of power and codified as many safeguards into the Constitution as to be preventative and yet functional. Budgetary, administration, oversight and application of the Constitution and any subsequent codes were given structure within a system of checks and balances.

2. Federal versus States: The Articles of Confederation were the Colonies’ expression of distrust for centralized government. The first governing entity was dependent upon the States and had little authority or opportunity to exert power over the affairs of the foundling nation. It was, after all, a confederation. The experience of the States with the Crown and the Crown’s governing forces left them desiring local government or no government save the town or county. Populations in lower density regions did not trust distant authorities and were more inclined to a confederation of sovereign states who gave limited power to any national entity. As mentioned earlier, the Confederation was hobbled in dealing with national affairs by the lack of unanimity and the ability to present a consolidated position. Once the Continental Army went back to each State, there was little singularity.

The strongest leaders of the new nation tended to be more aware of the need for a singularity and some degree of a centralized government to do what a confederation could not do. Whether Washington with his experiences leading the Continental Army or the early struggles leading under the Confederation or John Adams trying to represent the interests of the United States in Europe where a United nation was expected, it became apparent to some that a federal union was needed in addition to the States. The struggle between States’ Rights and the Federalists delayed the strengthening of the national identity. The contradiction of having power at both the State and Federal levels of government was a source of chaos throughout the Second Continental Congress and much of the Constitution was developed out of the need for compromise over this dichotomy. Population-dense areas tended to want more centralization while the less dense tended to desire home-rule at the local level. The Federalist Party was the first American political party and was led by Alexander Hamilton. But – it was conservative and short-lived – lasting less than twenty years. Hamilton saw the need and fought for elements of a national government that only could be provided at a national level. Banking was needed on a national level to provide a common tender value. Some level of military and funding of a standing army and navy was imperative as Britain continued to provoke conflicts on the north and west with indigenous and Canadians (at one point after the Revolutionary War, the standing Army was less than 600 men) up through the War of 1812. While the Federalists did influence the U.S. Constitution and the inclusion of many functions that could only be effectively be fulfilled by a national entity, John Adams was the only Federalist President (1797-1801). Washington had been supportive of much of the Federalist positions but insisted on being a non-partisan President. When Thomas Jefferson ascended to the Presidency in 1801, the national government was led by the Democratic-Republican Party. But Jefferson did move the nation along with centrist actions: defense of American interests against North African pirates, the Louisiana Purchase and trade and commerce in international markets. His successor, James Madison, had written the Federalist Papers with Hamilton and John Jay for ratification of the Constitution but opposed some of Hamilton’s centralization of power in the national government. He continued Jefferson’s endeavors and then with the onset of the War of 1812, saw the need for a stronger federal government and bolstered a stronger standing military, the creation of the national banking system and treaties and tariffs not possible to achieve by individual States.

MAKING IT WORK

So, there you have it – everything to know about the U.S. Constitution and how it came to be. Would you believe there is more? Not surprisingly, different segments of society sees the document differently. Interpretation becomes the major issue in applying what the Constitutions says and what it means and how to apply it to life since it was originally ratified. Remember, even in 1789 there were disagreements over the nature and content.

A resource for your consideration will be found at the National Constitution Center website ( https://constitutioncenter.org ) where you will find the full text of the Constitution and other materials relevant to understanding this document. Included in this site is the prominent methods of interpretation used by judges to apply the Constitution. Be aware that is the purpose of the highest judicial level of the U.S. federal government and is not the jurisdiction of any other branch of government.

The seven widely accepted methods of interpretation are:

1. TEXT. A judge looks to the meaning of the words of the Constitution, relying on common understanding of meaning at time provision became part of Constitution.

2. HISTORY. Judge looks to the historical context in which the provision was drafted and ratified to give clearer meaning.

3. TRADITION. Judge looks to laws, customs and practices established after provision is developed and ratified.

4. PRECEDENT. Judge applies rules established by precedents, rulings in earlier cases and applying to current consideration.

5. STRUCTURE. The judge infers structural rules (such as authority and responsibility between institutions) from the relationships specifically designated in the Constitution.

6. PRUDENCE / CONSEQUENCES. Judge seeks to balance the costs and benefits of a ruling including consequences and concerns about limits of judicial power and competence.

7. NATURAL LAW / MORALITY. The judge draws on principles of moral reasoning – whether embodied in the natural law tradition of drawn from a judge’s own independent, present-day moral judgments. ¹

As you read through these tenets of interpretation, place yourself in the position of a judge intending to impartially try to apply all seven methods to questions of application to circumstances never envisioned by the original founders. Constitutional interpretation is not meant to be a matter of popular opinion but rather rooted in the context and historical intent of the document. While the Executive Branch may suggest amendments and the Legislative Branch may codify amendments for ratification, only the Judicial Branch has the power to interpret what is currently existing in the Constitution.

Footnotes:

¹ Constitution 101 Resources. 1.5 Seven Methods of Constitutional Interpretation 

https://constitutioncenter.org/education/classroom-resource-library/classroom/1.5-info-brief-methods-of-constitutional-interpretation

Suggested readings for additional information, sources and perspectives:

https://en.wikipedia.org/wiki/Mayflower_Compact

https://en.wikipedia.org/wiki/Second_Continental_Congress

https://en.wikipedia.org/wiki/American_Revolutionary_War

https://en.wikipedia.org/wiki/Constitutional_law

https://en.wikipedia.org/wiki/Constitution_of_the_United_States

https://en.wikipedia.org/wiki/Democracy

https://en.wikipedia.org/wiki/Republic

https://en.wikipedia.org/wiki/Federal_government_of_the_United_States