Policy and Constitutional Principle

As a Brit teaching early American history in the US, I’m often asked how I came to be fascinated by the American Revolution. My answer is generally some version of the following: I’m fascinated by the American Revolution because there are so many reasons why it shouldn’t have ended with the creation of an American republic. Not only was the notion of independence from Britain a daring and risky move, but there were many reasons why the North American colonies could not cohere once they had broken with the mother country. Investigating the ways in which Americans tried to bridge the many gaps between themselves to create powerful and lasting governmental structures is one of the key themes of my research.

A large part of the answer to that conundrum, at least once historical focus shifts to the early republic, is the Constitution. Though, as I have written elsewhere, the mechanics of writing and ratifying the Constitution were scarcely the pristine and perfect process of popular imagination, the longevity of the Constitution must rank as one of the most significant achievements of the revolutionary era. Yet a close look at pretty much any period of American history sees the Constitution wielded as a partisan weapon as often as it is venerated as a ligature holding the separate states together. That is a curious paradox, for there is an implicit and serious criticism in describing a governmental act as “unconstitutional.” It suggests a lack of patriotism and a lack of common feeling; it implies mistrust, rather than emphasizing shared responsibility.

The use of “unconstitutionality” in political debate is as old as the Constitution itself. One of the actions of the 1790s that set a truly dangerous precedent for the new nation was the decision of Jefferson and Madison to go after Hamilton’s National Bank not on the grounds of policy, but on the grounds of constitutionality. Not only was their interpretation of the Constitution dangerously narrow, but it also set a tone in which important policy debates became matters of impending crisis rather than questions of routine governmental business. But it was not only those at the very top of society who used such language. William Findley’s history of the Whiskey Rebellion very clearly places the blame on what he saw as the “unconstitutionality” of Hamilton’s excise laws—remarking that people would never willingly submit to a law that they believed to be unconstitutional.[1] And of course, you don’t have to move too far into the future to find the Federalists screaming bloody murder about the Constitution when it came to the Louisiana Purchase.

Perhaps this language of unconstitutionality as absolute right should not surprise us given the use of the principle of ‘unconstitutionality’ in the early stages of the Revolution. The notion of Parliament’s right to tax as “unconstitutional” was widespread. Yet the notion was almost as nonsensical as it was popular; from a British perspective, it’s only a little bit of an exaggeration to say ‘if Parliament passes a law, that means it’s not unconstitutional’. Insofar as there was an assertion of “rights” involved, the notion of a right to be exempt from taxes made more sense in an older context of “privileges” rather than an absolute principle. Of course, from the British side, assertions of a right to tax were all well and good; what really mattered was the ability to enforce law. Parliament could tax all the goods in America by statute; if it didn’t have people able to collect the cash, the tax was to all intents and purposes null and void.

Pointing out the long revolutionary heritage of the notion of “unconstitutionality,” however, only makes the repeated use of the term in the early Republic more problematic. Comparing opponents to the British government might have been an effective rhetorical tool, but did little to contribute to the cohesiveness of American life in the 1790s. That is revealing enough in itself—the reason the union did not break up over a national bank, or an excise tax, or the annexation of Louisiana, was that ultimately people realized that this was not a fundamental breach in the body politic of the new nation. Insofar as the Constitution did hold the nation together in the early republic, it was because there was sufficient shared belief in the structures of government; that the Constitution could structure a conversation about policy, even if it tended to uncivil discourse.

I think there’s an important lesson to be learned from that in today’s political debates. It seems that there is scarcely any important debate that takes place today without some question of the constitutionality of a law. Yet, to bastardize Jefferson’s first inaugural, not every difference of policy is a difference of constitutional principle. The rhetoric of unconstitutionality, however, is inherently corrosive. Threatening inherent rights is a much more serious act than leading government and society down an unhelpful path (not least because establishing something as a “right” tends to make it harder to remove). Ultimately, America declared independence from Britain not because Parliament asserted an unconstitutional right, but because the British government could no longer enforce its authority. Similarly, the early American republic survived not because of the text of the Constitution itself, but because when push came to shove, Americans were prepared to accept the authority of the government that ruled in its name. It is the power of that bond between the people and the Constitution that has allowed it to survive. At the same time, though, that bond poses a great threat. Because when debates are framed as matters of constitutional principle rather than matters of policy, the Constitution is a dangerous weapon to wield.

[1] William Findley, History of the Insurrection, in the four western counties of Pennsylvania (Philadelphia: Printed by Samuel Harrison Smith, 1796), 43. Findley writes: “It is not easy to convince people that a law, in their opinion unjust and oppressive in its operation, is at the same time constitutional”. Similar language appears later in the book, calling into question the ‘constitutional principle’ on which Congress could pass an excise law.

6 comments on “Policy and Constitutional Principle

  1. Roy Rogers says:

    Ken, this is a simply fantastic post and one where (I believe) we are largely in agreement.

    It is extremely obnoxious that Americans debate policy preferences and political morality in the binary discourse of “constitutionality.” I tend to view constitutional arguments as instrumental – today’s unconstitutional move is tomorrow’s constitutional necessity (this is true, I believe, in the early and modern republic). Indeed, the language of constitutional masks so many moral arguments and power relationships that it tends to obfuscate what someone is trying to say rather clarify it.

    Anyway, great post!

  2. Tom Cutterham says:

    Perhaps it really is easier for us, Ken, as outsiders to the US context, to notice the way these notions about constitutionality reveal enormous flaws and paradoxes in the way democracy, ‘policy’, and law interact. But it’s also true, as I think you hint, that these notions aren’t products of a specifically American identity. One thing I’ve been thinking about more recently is the way supposed *natural* or *divine* law acts as a limitation on legislative sovereignty in the same way a positive constitution does. Nature’s constitution, the law of nature and nations, has or had a similar rhetorical (and therefore political and legal) power. We might say that kind of non-positive law has no firm textual basis like the constitution does – but then we have to ask, how “firm” exactly is any law’s textual basis anyway?

  3. Absolutely fantastic post, Ken (as usual)! Having been reading Pocock and Sommerville recently, I find Tom’s questions quite thought-provoking as well (post, anyone?). I would argue that, in contemporary political discourse, accusations of unconstitutionality not only negatively suggest a lack of patriotism but actually positively carry a treasonous connotation, at least as often used by many on the far right. These types of accusations have at their core a partisan fundamentalism. That is to say, in the minds of some, asserting one’s own opinion as fact as to interpretation of the Constitution is meant to both imply and reinforce one’s own belief that they are somehow more American or a “truer” American. In our contemporary discourse, which on the right is often based on setting those who disagree outside the sphere of true Americanism, accusations of “unconstitutionality” are also used as an exclusionary rhetorical device. This is, in many ways, a classically McCarthy-ist rhetorical tactic. After all, nothing stops an unwanted debate or inquiry faster than accusing your opponent of being un-American or a traitor. (As you and I both know, this tactic is not only limited to the political sphere). This all falls in line with your suggestion that both the term and the notion lend themselves to heightening the perceived political stakes. It reminds me of political debates in the 1750s in which calling one “a republican” or “a papist” carried similar connotations (setting one outside the bounds of Englishness) and had a similar effect in heightening the perception of the political stakes. When this kind of rhetoric begins to be used as broadly as some use it, it can’t help but have not just a corrosive but a paralyzing effect on both governance and discourse.

    • Tom Cutterham says:

      Your invocation of patriotism makes me wonder: in the last century, what’s been the relationship between “unamerican” and “unconstitutional”? Are we at a point where both words are making essentially the same claim? It can often seem like “the constitution” does a lot of work as a reification – more than a symbol – of American identity. Which is perhaps, after all, precisely how the nineteenth century Whigs imagined the British constitution.

  4. The Craftsman Redux says:

    I have been lately favored with the opportunity to read “Policy and Constitutional Principle,” by that creature of Robinarchial power – Ken Owen. The main point of his blogged editorial is to make a plea for purveyors of contemporary American politics to take the term “Constitution” and “Constitutional” more seriously lest William FIndley and his ilk ride again.

    Perhaps, I shall suggest, that the Constitution, and its meaning, has never been more serious and important in the every day lives of American Citizens; that the “bond between the people and the Constitution ” that Owen refers to has meaning beyond the idea that citizens merely “allow it to survive” with the meanings that they impart? And that, finally, matters of “constitutionality” were taken seriously by individuals during the Early Republic not as a convenient means of rebutting policies that they did not like but rather because they saw such policies as fundamental violations of natural right and constitutional principle.

    Instead I suggest that contemporary American politics revolve around the language of Constitutionality because the political issues facing American citizens are ones of grave Constitutional concern – similar to the state they existed in during the 1790s. The language of “constitutionality” is “Dangerous weapon to wield,” perhaps, but one nonetheless necessary to wield as the rights and liberties of a free people come undera sustained assault by Robinarchs at all levels of governance.

    I shall therefore communicate this valuable present to the publick, without any farther preface:

    Did not the Commonwealth of Virginia attempt to subvert the constitutional right of “Privacy” found in Griswold v. Connecticut and guaranteed to the citizens of all states via the 14th Amendment to the Constitution?


    Did not pressure from individual citizens concerned with their rights act to see this pernicious display of masochistic power overturned?


    Does not the Corporation of New York City engage in a daily occurrence of violating the 4th Amendment Rights of American Citizens who happen to be of a race other than White? Does this case not speak to the very threats posed by Bloomberg, another creature of Robinarchial power?


    Is not the central issue in this case, the overreach of constituted governmental authority?

    To tie this back to the history of the early republic, perhaps the real failure of “Policy and Constitutional Principle” is to read a particular contemporary viewpoint back into the past. Jefferson and Madison certainly did not believe that they were setting “dangerous precedent” by opposing Hamilton’s Bank of U.S. on constitutional grounds. Rather, they certainly believed that a federally charted banking monopoly was a fundamental violation of a document that granted limited fiscal and military powers to a sovereign body which had the constituted authority to exercise these powers over 13 independent and sovereign states.

    The political conflicts 1790s were intense not because they were over mere matters of policy dressed up in the language of “unconstitutionality.” Rather, they were intense because they reflected fundamental disagreements between Federalists and Jeffersonian Republicans over the very meaning of the Revolution and State Power.as found in the U.S. Constitution.

    ~The Craftsman Redux


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