Most of these ideas were produced by the "Levellers". (This was a misleading name, given to them by their opponents, to imply that they wanted to destroy private property. The ones who did want to do that called themselves the Diggers, or True Levellers.) [For a collection of Leveller pamphlets, full of rousing democratic propaganda, click here, and for the large collection by Gardner of the Constitutional Documents of the Puritan Revolution, click here.]
In An Arrow Against All Tyrants, Richard Overton argued that just as "by nature no man may abuse, beat, torment, or afflict himself, so by nature no man may give that power to another" - ie, if we see power as a gift of those who are governed, there are limits on how much power can be given. In the search for a basis on which to settle the Civil War, the Levellers drew up an "Agreement of the People" which was presented first to the Council of the Army and eventually, in a modified version, to the Parliament. This would have incorporated many of the limitations contained in Magna Carta and the Petition of Right, and many others besides. It was intended to be superior to laws made by the Parliament, and forbade any member of Parliament "to render up, or give, or take away any any of the foundations of common right, liberty, and safety contained in this Agreement." Parliament's response was that the Agreement was seditious and "destructive to the Being of Parliaments and Fundamental Government of the kingdom". The Levellers kept on arguing, their civilian leaders were arrested on charges of sedition, and some of them in the army mutinied and were shot at Burford Church.
Later in 1649 the Rump Parliament (those members left after the Army had "purged" the moderates) proposed an "Engagement" to be subscribed to by all citizens, who would promise to be "true and faithfull to the Commonwealth of England, as it is now established without King and House of Lords" - that is, to obey Cromwell and the Rump unconditionally. Pamphleteers - some anonymous, some more bold - decried the notion that the (few) members of the House of Commons could confer supreme power upon themselves. The anonymous author of "An Exercitation concerning Usurped Powers" claimed that it was "beyond the power of the constituted, and onely in the Constitutors to make such an alteration in the fundamental Constitution". Sir Henry Vane suggested, in A Healing Question, that the way to bring about the establishment of fundamental constitutions was through a "General Council, or Convention, of faithful, honest, and discerning men, chosen for that purpose by the free consent of the whole body of adherents to this cause". Like the Levellers before him, Vane was charged with sedition (first by Cromwell and later, with fatal consequences, by the restored monarchy). John Milton, better known as a poet, weighed in with an essay on The Tenure of Kings and Magistrates, in which he argued that it was the right of a people to change their leaders "as oft as they shall judge it for the best" whether or not the leader had been a tyrant, "merely by the liberty and right of freeborn men to be governed as seems to them best".
Cromwell, though famous for his reluctance to take on absolute power, could never bring himself to trust anyone else, let alone the whole body of the people, with power, so he fiddled around with various constitutional "settlements" - none of which settled anything. Only two years into the period of the Commonwealth (1651), Thomas Hobbes published the most well-known pro-monarchical publication of the "pamphlet war", Leviathan, in which he used social-contract arguments, not to show that Kings owed duties to their people but that the people owed almost-unconditional obedience to government (except that they could not consent to their own death or to being conscripted). He dedicated it to Cromwell, perhaps partly by way of saying "you shouldn't have rebelled" but also as an indication that now that Oliver was on top, he should be obeyed. Cromwell seemed to agree.
After Cromwell's death the English, tired of rule by Puritans and incapable of constructing a workable system of rule by the People, invited the dead King's son back to rule them in 1660 (and pretended that the Commonwealth had never happened, backdating his reign to 1649). However, as mentioned in the previous Chapter, the tensions and the propaganda war continued. Theories of limited government continued to be written, but circulated in secret (part of the evidence that had Algernon Sidney executed for treason in 1683 was the draft of his Discourses Concerning Government; it was eventually published 15 years later). On the other side of the debate, Sir Robert Filmer had no trouble in publishing Patriarcha in 1680 to demonstrate that the King was the father of the English family and should therefore be obeyed! John Locke wrote a First Treatise [or Essay] on Civil Government specifically as a reply to Filmer, and then expanded his ideas in the famous Second Treatise on Civil Government. He seems to have written it sometime before 1688, and to have circulated copies to those who organised the Glorious Revolution, but he did not have it published until 1690, when it was safe. In this he argued that people form societies in order to protect their "property" (defined to mean life, liberty and "estate" - property in the narrower sense), that we give governments just sufficient power to defend that property, and that we have a right to rebel against an unjust government. He spelled out a number of areas that government had no power to touch, and outlined a rudimentary version of the theory of separation of powers, later expounded in more detail by Montesquieu.
Though most of the ideas in the Treatise had been foreshadowed by the other writers, Locke's work became the one that later generations studied - it was the work of a philosopher, rather than a mere propagandist. [What's the difference? Obviously a philosopher tries to develop a more rigorous and coherent argument, but I suspect that the criterion for being regarded as a philosopher is that you have also written about the heavier topics such as epistemology (theory of knowledge) or ontology (theory of existence), as Locke had. If you've only written political theories, you're a mere propagandist. This may sound like I'm being cynical, but there is certainly a strand of thought among philosophers that says that political theory isn't real philosophy.]
However, as we will see in the next Chapter, the ideas of a supreme-law constitution and limits on legislative power never came to fruition in England. Perhaps the parliamentarians gave some small tribute to Vane by calling the bodies that invited Charles II to return in 1660, and that offered the throne to William and Mary in 1688, "conventions" - but perhaps it was just the obvious word for a body of people coming together. Despite Vane's arguments that such bodies could make more fundamental laws than an ordinary Parliament, the politicians were not really confident about the validity of these irregular bodies, which had not been summoned by a King, so in each case the proceedings were followed, as soon as a Parliament had been properly summoned, by an Act declaring the convention to have been "to all intents and purposes" the Parliament. Hence they have become known as the "convention Parliaments".
Though perhaps partly inspired to rebel by Locke, the parliamentarians then promptly forgot him and Vane, and went back to reading - and becoming - Leviathan! Having won the fight against the Stuarts, passed the Bill of Rights to limit executive power, and assumed the sole right to dismiss judges, Parliament installed itself as sovereign, and assumed that the only "fundamental" law was that the Parliament could "make or unmake any law whatever". It did this with the concurrence of the judges, who (as we will see in the next Chapter) still react with some horror at the thought that they might declare Acts of the Parliament invalid!
When the colonies rebelled, their complaints included tyranny by the UK Parliament as well as by the King and his Ministers - Parliament had passed the laws imposing taxes on them and restricting their right to trade. [I know of at least one Web site that says that the founders considered the legislature the "most dangerous branch" of government. I would have thought that history clearly shows that the executive is the most dangerous branch - but it is true that it can become even more dangerous if it can get the legislature to assist it, and of course the problem for the American colonists was that they were not even represented in the legislature.]
When the revolution broke out, the colonists started to build new systems of government even as they fought the Redcoats. Many of them - nearly all of the leaders, it seems - had read Vane, Milton, Sidney, Locke and Montesquieu, James Harrington's vision of a perfect society in Oceana, and the more recent rantings of the radical whigs (John Trenchard and Thomas Gordon) against the betrayal of revolutionary principles under George I (see an example here). They were determined to put the "true" principles of English constitutionalism into practice in their new land. Revolutionary committees in each colony summoned an assembly, and they all drew up new Constitutions. Instead of leaving it solely to the elected representatives, some colonies (now calling themselves States) even involved the people directly in the ratification of the proposed Constitution. [In Massachusetts, even though the Constitution was going to give the right to vote in elections only to men with a certain amount of property, all men were allowed to vote on the ratification. The sovereignty of the people was being taken seriously - though women were not yet counted as persons, "the people" consisted of all adult males.] Some of the colonies included a Bill of Rights in these new Constitutions, and they were drafted so as to limit the powers of the legislatures as well as the executive governments - see, eg, the Massachusetts Constitution of 1780.
At first the colonists were so wary of governmental power that they barely gave the Continental Congress enough power to win the war. (It couldn't even raise its own taxes, and for a long time the army went without pay. The army only stayed loyal at Valley Forge because Washington promised that he would make sure they were paid eventually - and everyone knew that George kept his promises.). However, by 1787 the citizens of the new nation had realised the deficiencies of the Articles of Confederation, and agreed to elect delegates to the famous Constitutional Convention in Philadelphia. Instead of drafting amendments to the Articles of Confederation, the delegates drafted a complete new Constitution, a new book of rules for American government. Even though they created a much stronger central government, they were careful to limit power by dividing it - between the States and the new central government, and within the central government by the separation of powers between the legislative, executive and judicial branches of government. As first drafted, the Constitution did not contain the Bill of Rights, although it did contain prohibitions of ex post facto laws and laws "impairing the obligation of contract" (Art. 1, ss. 9 and 10). These were included because in the early years of independence the richer folk had felt themselves tyrannised by Acts of the new State legislatures providing relief from the payment of debts - here was another reason, in their view, for imposing limits on legislatures as well as executive governments.
Then the whole Constitution was given superior-law status - before it could commence it had to be ratified by popular conventions in the States; Art. VI, s. 2 spelled out that it was the supreme law of the land; and it could only be amended by a complex procedure involving ratification by three-fourths of the State legislatures (Art. V).
This "rigidity" was introduced for a number of reasons. The division of powers was one of them - if powers are divided you need an umpire to make sure that the central government doesn't "steal" power from the States. And putting the separation of powers in a "rigid" document goes some way to avoiding the possibility (which is, at least theoretically, present in England) that the legislature could give back absolute power to the executive by "repealing" the doctrines of the rule of law and separation of powers. But the "rigidity" also protected the few individual rights that were mentioned in the Constitution. And when the "Bill of Rights" - the first ten Amendments - was proposed in 1789 (in response to popular demand during the ratification campaign), James Madison made it clear that it was to have a different status from the Act known by the same name in England:
In the declaration of rights which that country has established, the truth is, they have gone no further than to raise a barrier against the power of the Crown; the power of the legislature is left altogether indefinite. (House of Representatives, June 8, 1789)He, of course, was proposing a barrier against the power of the legislature as well - and since the Bill became law the special amendment procedure has protected both the two-way division of powers and the specific guarantees of liberties in the Constitution. [The Supreme Court didn't do a particularly vigorous job of enforcing those liberties for the next 100 or 125 years, but that's another story.]
It stood to reason that a body which would itself dissolve and have no future share in government would be more impartial in dividing authority than an assembly which was itself the legislative branch of government.
The Americans added the notion of having the Constitution ratified by the people after the drafting was completed. In Massachusetts in 1779 both techniques were used - a popular convention drafted proposals, which were then ratified by town meetings. In 1787 the Constitutional Convention provided that the new Constitution was not to commence until ratified by popular conventions in nine of the States (perhaps because the members were aware that they had exceeded their mandate, which had only been to amend, not totally replace, the Articles of Confederation). The amendment procedure in Art. V still provides for the possibility of calling a Convention to draft amendments, so that they would be enacted by special representatives of the people and ratified by their ordinary representatives. However, it also allows for them to be proposed by the ordinary legislature - and in fact, that is how all proposals have originated - and then ratified by the State legislatures. In this way the American people can regard themselves as sovereign over their system of government, though the sovereignty is exercised through elected delegates.
No legislative act... contrary to the Constitution can be valid. To deny this would be to affirm that... the representatives of the people are superior to the people themselves...The interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.
In 1803 the United States Supreme Court applied Hamilton's reasoning in Marbury v Madison. The actual issue in the case was whether an Act of Congress could give the Court additional original jurisdiction, and the holding on that issue - that it could not - makes it seem like the Court is very humbly refusing jurisdiction. But to decide that point it had to exercise a much greater jurisdiction - the power to hold that an Act of Congress, repugnant to the Constitution, is invalid and can be disregarded by everyone. It reasoned thus:
That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.
The powers of the [United States] legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?... It is a proposition too plain to be contested, [either] that the Constitution controls any legislative act repugnant to it; or that the legislature may alter the Constitution by an ordinary act.
Between these alternatives there is no middle ground. The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act, contrary to the Constitution, is not law: if the latter part be true, then written Constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature illimitable. ....
Those... who controvert the principle, that the Constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits.... That it thus reduces to nothing, what we have deemed the greatest improvement on political institutions, a written constitution, would, of itself, be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction.
You might notice that after the initial reference to the right of the people to establish rules for their own government, the rest of the argument is based on purely logical grounds - the Constitution must be interpreted and, if necessary, enforced, because it is the highest law of the land. If the Constitution had some other source of legitimacy, or was just taken for granted, this argument might almost be enough by itself - "rules is rules", some might say. But the point of those rules was also important, and gave them, and their judicial enforcement, greater legitimacy. The point, as Marshall and all his audience were aware, was to preserve citizens' rights against an over-mighty government.
The power to declare that statutes, passed by a majority of the elected representatives, are unconstitutional still attracts criticism from time to time, on the ground that the majority should be able to do anything it wants, but it has become a permanent part of American law. [If the majority really does want to do something, it will probably find a way eventually. Those who criticise judicial review overlook the fact that the representatives of the people are sometimes promoting their own interests rather than the people's interests - all power tends to corrupt and unreviewable legislative power can be a great benefit for legislators!] Constitutionalism, in this "American" version (derived, as we have seen, from the more radical English writers) means that not only is the executive subject to legal limits, but so is the legislature.
Section 76 says that the High Court can be given jurisdiction over "any matter arising under this Constitution, or involving its interpretation", which seems to imply that litigants should be allowed to argue, among other things, about the validity of statutes. [James Thomson has written an article (in the 1986 reprint of the Convention Debates) in which he argues that judicial review of legislation was not intended, but - with respect - every passage he quotes shows that the delegates took it absolutely for granted that it would happen.] And indeed from the earliest sittings of the High Court of Australia, the Justices of that Court took it for granted that the Court had power to declare statutes invalid if they were contrary to the Constitution, and the defendant governments appear to have taken it for granted too, as it did not become an issue in any of the early cases. Finally, in Australian Communist Party v The Commonwealth (1951), the Commonwealth challenged some aspects of the Court's power to review the validity of Acts. Fullagar J replied to this by saying "..in our system the principle of Marbury v Madison is accepted as axiomatic".
However, matters within the State governments are regulated by their own Constitution Acts, and these Acts are mostly ordinary Acts of Parliament, enacted (with assistance from the UK Parliament) by the very Parliaments whose powers you might expect them to regulate, and continued in force by section 106 of the Commonwealth Constitution. The result of this (inevitably, you might think) is that there are few restrictions on State Parliaments' powers in their own Constitution Acts. Where there are apparent restrictions, as we shall see in later Chapters, there is doubt as to just how many of them are binding on later Parliaments. The State Parliaments are, as mentioned above, subject to restrictions under the Commonwealth Constitution, but the general lack of restriction under their own Constitution Acts leads many State politicians to rabbit on, incorrectly, about the "sovereignty" of their Parliaments.
That is, in Australia, we have a funny mixture of constitutional principles. We do put both aspects of constitutionalism into effect - the executive is bound and its powers are limited by the law, and the powers of our Parliaments (Commonwealth and State) are limited by a "higher law" Constitution, but within the "internal" State constitutional sphere there are less limits and a notion of partial "sovereignty" persists. The details of the limits will be explored in later chapters.
The constitution in the formal sense is a certain solemn document, a set of legal norms that may be changed only under the observation of special prescriptions, the purpose of which it is to render the change of these norms more difficult. ...it is in order to safeguard the norms determining the organs and the procedure of legislation that a special solemn document is drafted and that the changing of its rules is made especially difficult.
Even English writers acknowledge that this approach is now normal. In the text by Wade and Phillips on Constitutional Law (1960), the authors concede:
By a constitution is normally meant a document having a special legal sanctity which sets out the framework and the principal functions of the organs of government of a State and declares the principles governing the operation of those organs. Such a document is implemented by decisions of the particular organ, normally the highest court of the State, which has power to interpret its contents....[ordinary] statutes can be altered by the same method as that by which they were originally enacted, whereas changes in the constitution call for a more elaborate process. This is to ensure that it shall not be in the power of those who for the time being can command control of the legislative organ to vary without special consultations and, maybe, direct reference to the electors, the system and principles of government which have been set up with solemn formalities by agreement between all major political interests in the State.
However, the authors then go on to demonstrate that the United Kingdom's constitution does not comply with that "normal" pattern. This, now anomalous, English approach has a lingering influence in Australia, in its effect on States' powers within their own sphere, so it will be discussed in the next Chapter.