Marica Dall'Asta Comparative History of Government December 5, 2012

Constitution and Revolution

Introduction
The articles Foundations of American Liberty and Rule of Law by Ellis Sandoz and American Federalism: Lessons from the Founding by Jean Yarbrough and Richard E. Morgan focus our attention upon the American constitutional path, showing how tradition and new ideas have shaped American constitution, liberty and federalism.

Foundations of American Liberty and Rule of Law

At the beginning of his analysis Sandoz stresses the double aspect characterizing the American Constitutionalism: first of all the American Constitutionalism and its conception of Liberty have some old characteristics coming from the common civilizational path with the Europeans, but it is also something extraordinary new that has never happened in other countries. Starting from this point the main issue is to understand what are the traditional features in the American Constitutionalism, and what are the innovations that allow us to speck of American exceptionalism.

What belongs to tradition?

THE CIVIC AND POLITICAL CULTURE. American founders felt a strong attachment to their European heritage, and also during the revolutionary period they never brought into question the basic principles of their civic and political culture. This is the main difference that distinguishes the American revolution from the French one. Both revolutions challenged the preexisting regime: American colonies wanted to break free from England domination in order to defend their own interests as well as French bourgeoisie wanted to remove the king, as the main symbol of the ancient rgime, because he was an obstacle for

its development. Although the purpose was the same, the French and the American revolutions didn't share the same spirit: while the french revolution, following the ideas spread through the Enlightenment, signed a radical break with past, tradition and also religion, the American revolution was based on principles and ideas deeply rooted in the European political and philosophical tradition. Teachings from Aristotle, Aquinas and John Locke were grounded in the Founders culture. Moreover religion and english constitutionalism was considered as valid supporters to revolutionary claims: the Protestant Christianity seen as a political theology played a crucial role and all the arguments invoked to resist the tyranny of Stuart Kings in England in the previous century, like the common law liberty stated in the Magna Charta (1215) were taken as basis of colonies demands. Philosophy, political theories and religion belonging to the great European tradition have contributed to shape the American civic and political culture which forms the core of the American rule of law during the founding era. THE NATURAL LAW JURISPRUDENCE. According with this concept law must be just and reasonable because it arises from a source superior from the state. This means that law is not merely a product of human will, but it has to follow the higher law which is associated with the Law of Nature's God in the Declaration of Independence (1776). This idea of natural law has a classical and medieval inheritance: philosophers like Augustine, Aristotle and Aquinas defined the natural law as the law that has the same force everywhere and does not depend on what people think or want and when the positive law deviates from the natural one it is no longer law. More influential on Founders was the inheritance from Fortescue and Coke, who explain that the natural law is the law that God infused in the heart of men for his direction. The contrast between the rule of law and the rule by law become relevant: the first was kept as a basic principle by the Founders of American constitutionalism and it became the main objection against the rule by law applied by the King toward the American colonies. What is remarkable is that in the 18 th century the English Monarchy had already embraced the teaching from Fortescue and Coke: the Glorious Revolution in 1688 established the parliamentary limit to the king's power and the recognition of some basic natural rights was set down in the Bill of Rights. There was a paradox because the rule of law was applied by the King on english territory, nevertheless he was

refusing to grant the same treatment to the colonies oversea and with the enactment of the Declaratory Act of 1766 the Parliament laid claim to the power to bind colonies in all matters. This could be seen as the main cause of the constitutional split between Britain and America. THE CONCEPT OF HUMAN NATURE AND LIBERTY. Man an is an intermediary between God and brute. What distinguishes the man from the brute is Liberty, conceived during the founding era as the rational choice of living under laws, and only if laws are just and reasonable the most important liberties of free men are preserved. This perception of liberty has a philosophical heritage: the idea that only the man governed by reason and not by passions and needs is free, can be found in Aristotle's as well as Hobbes works. During the revolutionary period the relation between liberty and private property became more relevant and the connection between freedom and property played a crucial role in the struggle for the independence: the thirteen colonies wanted to defend their own interests, especially economic ones as reveals the revolutionary motto not taxation without representation. John Locke is one of the most authoritative philosophers who fought for the recognition of the property right. The distinction between freedom and license and the relation between liberty and property made by the Founders are not novelties but they belongs to the philosophical and political tradition.

The innovations of American Constitutionalism and Liberty

FREEDOM OF CONSCIENCE As Tocqueville remember us the religion gave birth to America. Religion, or religions, played a fundamental role during the revolutionary period: religious communities gave moral basis to the revolution and they were crucial elements in shaping the outcome of the conflict, the independence. A strategic role was played also by the dissenting religious communities in solving important issues regarding religious conflicts and persecution. The American Constitution guarantees the equal treatment for any religion confessed in the territory. THE BILL OF RIGHTS The American Liberty is expressed in the Bill of Rights which consists of the first ten amendments of the United States Constitution. The first eight amendments were

proposed by Representative James Madison in 1789 and they identify specific personal rights so that their task is to protect individual rights from any sort of State's interference. The protection of these natural rights depends only on the power of judicial review exercised by the Federal judiciary, whose most authoritative body is the Supreme Court of the United States. Although Americans gave a new life and emphasis to the concept of Bill of rights, some liberties belong to Anglo-American political and constitutional history: they were part of common law liberty in medieval England, a tradition which revive in 17th century with the work of Coke, the Petition of Rights (1628), the Glorious Revolution (1688) and the Declaration of Rights in 1689. THE STATE STRUCTURE: SEPARATION OF POWERS. The separation of powers, the mechanism of checks and balances and the division of functions between the central government and states are the most remarkable new features established by the Constitution. This new interpretation of the separation of powers and the resulting system of government had the specific aim to ensure that the new State was not at the mercy of the desires and ambitions of men who formed it. The State's organization drawn in the Constitution was, and still is, the major guarantee of the rule of law, based on the natural law, against the rule by law, based on rulers will.

American Federalism: lessons from the Founding

The Federalism is the State structure designed by the American Constitution of 1789, and it is the result of an intense debate as well as negotiations among those who were Federalists and those who were not. What is surprising is that if we look at the Federal Convention and the Federalist Paper, the most authoritative defense of the new Constitution, we discover that many of the leading Framers were nationalists rather than federalists. This is true if we consider two men who played a major role in writing the Constitution: James Madison and Hamilton. The nationalism of the Framers has two main reasons: only a strong national government could have protected the newly independent country from any sort of imperialism coming from Europe and found new markets able to absorb their growing exports. In 1787 the federalism did not exist.

It must be noticed that at the beginning of the constituent work the conception of federalism was something different from what it later came to signify: the term federal was synonymous of confederal, meaning a voluntary association of sovereign states for the aim of self-defense. Essentially this understanding of federalism was mainly related to the question of how republican liberties could be better ensured. In relation to this, there were two basic arguments: Only small republics could preserve freedom, so a minimal government is the key to maintain and ensure liberty. According to this tradition of thought, liberty could be secure only if representatives resemble the electorate in their interests, occupations and opinions. Since this kind of representation is possible only in small republics the model of confederation should be adopted. A large republic could better protect liberty, because in small republics liberties can be threatened by a factious majority which can easily trample the rights of the minority. Madison was one of the supporters of this second argument, but he went forward in the Federal Convention when he proposed to deny the states the political representation in the new government and to give it the power of veto aver all their acts. According to Madison, the states should have been reduced to administrative agencies of the national government because they have failed to protect and ensure the rights of the minority and to sustain the common good. Madison was proposing an administrative decentralization rather than a federalist structure. Following this reasoning liberty is secured by the distribution of power among the three branches of the national government and by the election of the most qualified citizens as representatives. Madison's most nationalist proposals were rejected by the Federal Convention in favor of the Connecticut Compromise which lead to the foundation of the federalism. Madison's conversion to the federalist principle started only in 1798 with the Alien and Sedition Act, which made him recognize the positive role of the states in defending republican liberty. The Virginia Resolution represents Madison's acknowledgment that, despite internal checks, the national government was also able to overstep citizens rights and threaten their liberties. Therefore the states must have the right and the duty to control and limit the national government in order to avoid its deviations.

The most original feature of the federalism emerged in the Constitution is the separation of powers and functions between a national governments and the states: the first can enact laws binding on citizens but only on matters within its jurisdiction and these are clearly enumerated in the Constitution; the stares powers are residuary, meaning that they can legislate on all other subjects on which the central government have no power to decide. Therefore the Federalism was a new political idea, distributing powers between states and the central government, making each sovereign in its sphere.