Fundamental Law (History)

• Author: David H. Flaherty
• Pages: 1173-1174

Page 1173

The institution of a written CONSTITUTION as fundamental law superior to and limiting ordinary statutory law and government, which we now take for granted, was distinctively American. The concept of fundamental law embodied in a written constitution was one of the most influential and radical ideas to emerge from the AMERICAN REVOLUTION. It involved a break with the recent English past.

The notion of fundamental law has had a continuing history in Western political thought. Mid-seventeenth century Englishmen anticipated the use of a written constitution as the foundation of government, but the halfhearted experiment did not last. Fundamental law remained an ill-defined and vague term then, standing for the customary constitution as distinguished from revolutionary change. Parliamentarians accused Charles I and James II of attempting by arbitrary acts to subvert the fundamental laws of the realm, especially the traditional rights of liberty and property. Although interest in fundamental law declined in the eighteenth century, the concept never lost its attractiveness for the English. However, the growing acceptance of the omnipotence of Parliament made the idea of a single written instrument creating and limiting the government decidedly obsolete, because no restraints existed on parliamentary power, and for that reason Americans would finally repudiate the unwritten English

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constitution as less than the embodiment of truly fundamental law.

Reformist ideas about law, current in early seventeenth-century England, influenced the settlers of early America in the creation of their legal systems. The colonists developed a conception of the sources and nature of law that was much more expansive than the traditionally narrow conception of the English COMMON LAW. This broad approach reflected the fundamentally altered state of many aspects of law in the New World. Leaders of the American colonies also assimilated new currents in political thought which led to the conclusion that fundamental or natural law lay behind the civil law of every nation. Fundamental law became equated in their minds with natural law or the law of nature. Many residents of the New World regarded their charters from the crown as a fundamental source for their basic rights as Englishmen.

The revolutionary ferment of the 1760s and 1770s in the American colonies produced the idea of a written constitution embodying fundamental law...