Foundations Of The Us Constitution: Political Theory Explained

The constitution of a state is based on a variety of political theories and philosophies. The constitution of the United States, for example, was influenced by the political theories of John Locke and the optimism of the European Enlightenment. Locke's theory of constitutionalism suggests that the government's powers can and should be legally limited and that its authority depends on observing these limitations. Similarly, Aristotle's classification of the forms of government was intended as a classification of constitutions, both good and bad. The founders of the United States were also influenced by republicanism and the works of various philosophers, including Montesquieu and his theories of republican government.

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The constitution as foundational law

The US Constitution is a federal constitution that was heavily influenced by the Magna Carta and other ancient and modern federations. The Due Process Clause of the Constitution, for instance, was based on common law and the Magna Carta, which was a foundation of English liberty against arbitrary power. The idea of the separation of powers in the Constitution was inspired by Enlightenment philosophers such as Montesquieu and John Locke. The political philosophy of the time was dominated by liberal ideas within a framework of capitalistic free trade and constitutional self-government. The founders of the United States were also influenced by republicanism and Locke's ideas, as well as the optimism of the European Enlightenment.

The US Constitution, as the supreme law of the land, establishes the structure of the US government and guarantees personal freedoms and civil rights. The Constitution can only be changed by an extraordinary legislative process of national proposal and state ratification. The Constitution has provisions for limited government and the division of power between the federal and state governments. The Supreme Court plays a crucial role in interpreting the Constitution and ensuring that the government acts within its constitutional limits. The Court has the power to declare acts of Congress unconstitutional and to rule on the constitutionality of laws.

The concept of natural rights, expressed in the Declaration of Independence, had a significant influence on the political and legal developments that shaped the Constitution. The Constitution also provided for religious tolerance, freedom of the press, and freedom of economic enterprise. The founding fathers sought to safeguard state liberties and property rights, which some critics argue led to a power imbalance between the states and the federal government.

Constitutional theory, as a discipline, focuses on the underpinnings of constitutional government and overlaps with legal theory, constitutionalism, philosophy of law, and democratic theory. It concerns the historical, linguistic, sociological, ethical, and political aspects of constitutions. Theories of judicial review are particularly important within constitutional theory, as they shape how constitutions are interpreted and enforced.

The Rechtsstaat doctrine, or the idea of a legal state, was introduced by the German philosopher Immanuel Kant. This doctrine asserts the supremacy of a country's written constitution, which guarantees the implementation of a permanent peaceful life as a basic condition for the happiness and prosperity of its people. Kant's formulation of the main problem of constitutionalism highlights the interplay between the morals of a state's citizens and the goodness of its constitution.

The historical acts of authors and represented

The US Constitution was influenced by several historical acts and political philosophies. The study of the Magna Carta and other ancient and extant federations informed the US Constitution, particularly the Due Process Clause, which was based on common law and the Magna Carta's foundation of English liberty against arbitrary power. The eighteenth-century Enlightenment philosophers, such as Montesquieu, Locke, Edward Coke, and William Blackstone, also influenced the Constitution's inherent idea of the Separation of Powers. The Scottish Enlightenment, with its focus on the advancement of personal liberties, was also a significant influence, as recognised by historian Herbert W. Schneider.

The US Constitution also reflects the influence of republicanism and the optimism of the European Enlightenment, with figures such as George Washington, John Adams, and Thomas Jefferson concurring that laws should be the final sanction and that the government should be responsible to the governed. The concept of natural rights, which was expressed in the Declaration of Independence in 1776, also had a marked influence on the Constitution, inspiring the French Declaration of the Rights of Man and the Citizen in 1789. The founding fathers were eager to safeguard state liberties and the rights of property, and the Constitution provided for religious tolerance, freedom of the press, and freedom of economic enterprise.

The US Constitution's provisions for limited government and the division of power between the federal and state governments were also influenced by the desire to prevent the concentration of power and protect against unwarranted state power. This is reflected in the idea of constitutionalism, which holds that the government can and should be limited to protect citizens' freedoms. Originalism, a constitutional interpretation theory, seeks to protect citizens by restricting judges and officials to politically and morally uncontroversial decisions about historical intentions and understandings. Living constitutionalism, on the other hand, views the constitution as evolving and adapting to changing circumstances while still providing checks and balances through judicial interpretation and enforcement.

The works of German philosopher Immanuel Kant also influenced constitutional theory, particularly his idea that the constitution of a state is based on the morals of its citizens, which in turn are shaped by the goodness of the constitution. Kant's Rechtsstaat doctrine, introduced after the US and French constitutions were adopted in the late 18th century, emphasised the supremacy of a written constitution as a guarantee for a permanent peaceful life and the prosperity of the people.

Theories of judicial review

The US Constitution was influenced by several political theories, including republicanism, liberalism, and the Enlightenment ideals of philosophers such as Locke, Montesquieu, and Blackstone. The concept of Separation of Powers in the Constitution was inspired by these Enlightenment thinkers. The Constitution also drew from the Magna Carta, which served as a foundation for liberty and a check against arbitrary power.

Now, let's delve into the theories of judicial review:

Judicial review, or the power of the Supreme Court to declare acts of the legislative or executive branch unconstitutional, is a significant feature of US constitutional law. While the Constitution does not explicitly grant this power, historical records suggest that the Framers were aware of the concept and some favoured granting courts this authority. The Privy Council had previously employed a limited form of judicial review to review colonial legislation.

The basic theory of American judicial review holds that the written Constitution is the fundamental law within the states. It can only be changed through an extraordinary legislative process of national proposal followed by state ratification. The powers of government departments are limited to those specifically granted in the Constitution.

The Supreme Court's role in judicial review is essential for maintaining the balance of power between the three branches of government. It ensures that each branch recognises its own limitations and protects civil rights and liberties by striking down unconstitutional laws. This power of judicial review also sets limits on democratic rule by preventing the majority from passing laws that harm or take advantage of minorities.

The legitimacy of judicial review has been challenged, and supporters and detractors disagree on its doctrinal basis and application. One notable instance of judicial review was in Marbury v. Madison, where Chief Justice Marshall argued for the review of congressional acts, building on Hamilton's earlier assertion that the interpretation of laws and the Constitution was the domain of the courts.

There are varying perspectives on the role of judicial review in a constitutional democracy. Critics argue that judicial restraint in this process allows for an imbalance between states and the federal government and compromises the protection of civil rights. Originalists believe that the Constitution restricts judges to politically and morally uncontroversial decisions based on historical intentions. In contrast, living constitutionalists advocate for a flexible constitution that can adapt to changing circumstances and moral understandings.

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Republican government and civic virtue

The US Constitution is based on several political theories, including republicanism, which is underpinned by civic virtue.

Civic virtue is a key concept in the American republic. It describes the characteristics of a good participant in a system of government—the personal qualities associated with the effective functioning of the civil and political order or the preservation of its values and principles. Civic virtue is essential to the idea of self-government and is embedded directly into the constitutional framework.

The Founders believed that certain civic virtues were required of citizens for the Constitution to work. They read Aristotle extensively, blending classical ideas with modern governance. Aristotle understood virtue as a "golden mean" or middle ground between two extremes. For example, too little courage is cowardice, while too much can lead to recklessness. Similarly, a healthy respect for authority can become blind obedience to power when expressed too strongly. Civic virtue, therefore, requires action and is a habit.

The Founders also believed that religion and morality were "indispensable supports" to people's ability to govern themselves. Religious institutions nurtured virtue, and the Founders knew virtue was needed for self-government to survive. Montesquieu, an influential Enlightenment philosopher, also emphasised the importance of virtue in preventing tyranny, stating that "Republican government implies heartfelt virtues".

The system of checks and balances in the Constitution relies on the virtue of self-restraint. The separation of powers among the legislative, executive, and judicial branches is designed to prevent any single branch from dominating the government. The effectiveness of this separation depends on individuals within each branch exercising restraint and respecting the boundaries of their authority.

The impeachment provisions in the Constitution reflect another aspect of civic virtue, allowing the legislative branch to hold executive and judicial officers accountable for conduct that violates the public trust. This mechanism assumes that those wielding impeachment power will be guided by the virtues of justice and moral courage.

The Bill of Rights also underscores the importance of civic virtue, with the first ten amendments designed to protect individual liberties against government overreach. The practical enjoyment of these rights depends on a collective commitment to the principles they enshrine, such as exercising freedom of speech and freedom of the press responsibly and with respect for truth.

To foster civic virtue, teachers should be encouraged to use primary documents such as the Constitution, the Federalist Papers, and landmark Supreme Court cases in their lessons. Parents and community leaders also play a crucial role in discussing civic duties and national values to encourage a culture of engagement and responsibility among young people.

Legitimacy of political authority

The legitimacy of political authority is a key concern of constitutional theory, which focuses on the underpinnings of constitutional government. The concept of constitutionalism holds that government powers can and should be legally limited and that its legitimacy is dependent on observing these limitations. This idea raises questions about how a government can be legally limited if it creates the laws, and whether it is possible for a government to be self-limiting.

One approach to addressing these questions is to entrench constitutional constraints, making them resistant to change or removal by those whose powers are constrained. This could involve establishing a bill of rights or a charter, which outlines universal rights that are independent of government and to which judges can appeal to protect citizens from the government.

The political theories underpinning the US Constitution, for example, were influenced by republicanism, the ideas of John Locke, and the optimism of the European Enlightenment. Locke's philosophy, as outlined in his "Second Treatise of Civil Government," justifies the Glorious Revolution of 1688 and denies the claims of absolute monarchy based on divine right. Locke argues that political authority must be based on consent and cannot be exercised in arbitrary ways. Slavery, according to Locke, is being subject to arbitrary authority, while liberty in a political society consists of being subject only to lawfully constituted and exercised authority to which individuals have consented.

The US Constitution also drew on the theories of republican government advocated by Montesquieu, as well as the history of the Roman Republic. The Roman concept of constitutionalism added to Aristotelian notions the ideas of generalized equality, universal regularity, and a hierarchy of types of laws. The US Constitution aimed to balance executive and legislative power with an independent judiciary, safeguarding state liberties and property rights.

The legitimacy of political authority is further explored by Immanuel Kant, who formulated the main problem of constitutionalism: "The constitution of a state is eventually based on the morals of its citizens, which, in turn, is based on the goodness of this constitution." Kant's Rechtsstaat doctrine emphasizes the supremacy of a written constitution, guaranteeing a permanent peaceful life as a basic condition for the happiness and prosperity of the people.

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