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. 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.
 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.