Updated: Dec 4, 2020
All civics classes should begin with the first principle of American Constitutionalism: Government has only that power granted to it by the Constitution. As Justice Hugo Black stated in Reid v. Covert in 1957, “The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution.”
This foundational principle, set forth by the legendary Revolutionary War lawyer, James Otis, Jr., in the landmark, Writs of Assistance Case in 1761, charted a distinctly American conception of what constitutes a constitution. Giants of the founding period—George Washington, Alexander Hamilton and James Madison, among others—followed his path.
As the nation’s first President, Washington was at pains to explain in letters to friends that he sought, more than anything else while in office, to avoid being characterized as a “usurper.” Washington wrote, “If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”
Hamilton—he of Broadway fame—observed that the branches of government possessed no authority to alter the Constitution, from which they derive their authority. “An agent,” he wrote, “cannot new model his own commission” and “transfer the legislative power to the executive.” Madison stated in the Constitutional Convention: “It would be a novel & dangerous doctrine that a Legislature could change the constitution under which it held its existence.”
Concerns among the founders about governmental officials’ acts of usurpation and revision of the constitutional allocation of power, reflect their understanding of the significance of the ratification of the Constitution by the American people. As Madison explained, if the people had not approved the proposed Constitution, it would have been stillborn. But their ratification of it, he declared, “breathed life” into the Constitution. Ratification, that is, approval of the Constitution by the sovereign people, represented the epitome of consent by the governed, which Thomas Jefferson referred to in the Declaration of Independence as an “unalienable right.”
The historic significance of the act of popular ratification of the supreme law of the land, an acknowledgment that the people alone could approve or reject the proposed Constitution, was captured by James Iredell, one of the most acute theorists of the founding generation and a member of the first body of Justices serving on the U.S. Supreme Court: “The people have chosen to be governed under such and such principles. They have not chosen to be governed or promised to submit upon any other.” In sum, the American people did not ratify a blank check of authority for the government, but rather a Constitution that carefully allocates limited powers that are confined at every turn.
The framers of the Constitution were entitled to believe that one of their most important, and hopefully enduring, achievements was the implementation of the rule of law –the subordination of government to the law--on a daily basis. Stated simply, this principle means that governmental officials have an absolute legal and moral responsibility to obey the Constitution from which they draw their authority and swear an oath to preserve, protect and defend. To disobey is to rebuke the very concept of constitutionalism.
The solemn oath to obey the Constitution was not taken for granted by delegates to the Constitutional Convention. The drafters of the Constitution were not naïve; indeed, many were veterans of their state legislative bodies, colonial assemblies and Congress. A few were governors; some possessed considerable diplomatic experience. Most, moreover, were keen students of history, which informed their discussions and debates in Philadelphia. Their experience and reading taught them all an important lesson: power corrupts, and absolute power corrupts absolutely.
That history lesson, a universal axiom, reminded the framers that those holding positions in the government that they were creating would, by virtue of their office and the power, attached it, be tempted to abuse their authority for variety of purposes—personal, political and financial. The key question for all those committed to the maintenance of the rule of law was, as Madison asked in Federalist No. 51, how to persuade government to obey the law.
That was the great challenge in 1787. It remains the great challenge in our time.
David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.