The unraveling of American constitutionalism: from customary law to permanent innovation.

• Author: Baldacchino, Joseph

The nearly invariable response of those who are frustrated by court-imposed assaults on America's traditional culture is to propose constitutional amendments crafted to maintain the status quo ante. In 2003, for example, a state court struck down the Massachusetts law defining marriage as between a man and a woman. Activist officials in several other states soon employed the Massachusetts court ruling as an excuse for performing much-publicized, though plainly illegal, ceremonies purporting to join homosexuals in marriage. In reaction, citizens in many parts of the country mounted successful drives to protect, by various means, traditional marriage in their states. Yet the danger remained that the federal courts, and particularly the U.S. Supreme Court, would strike down traditional marriage laws throughout the land in much the same way that the High Court had negated state laws restricting or banning abortions back in 1973. To ward off this possibility supporters of traditional marriage, including President George W. Bush, (1) saw little to be done except to call for a federal constitutional amendment. But success in such a course is doubtful. The Framers, viewing constitutional changes as by and large dangerous to liberty, stacked the odds against adoption, requiring two-thirds majorities of both houses of Congress and ratification by three-fourths of the states. Even if proponents were to get a preservation of marriage amendment approved, it would be, to paraphrase Burke, in truth and in substance, an amendment not made, but prevented. (2) All that would be achieved would be to preserve the Constitution inviolate in this one instance, while doing nothing to counter the host of other illegitimate inversions inflicted on the Constitution every year. Clearly, the amendment process--which was never intended to protect against change and is poorly designed for that purpose--cannot cure the sickness unto death that now besets our federal and state constitutions, of which the current assault on marriage is but one of myriad symptoms.

It could be more plausibly argued that to regain the "free government" that is our birthright, nothing less would suffice than for Americans to defend constitutionalism with the same tenacity as their forebears the colonial whigs, who took up arms against their British rulers when nothing less would preserve their historic rights under the English constitution. But before we can defend the constitutionalism for which our ancestors risked all, we first must understand its specific nature and purpose. Toward that end it is useful to remember that in France, Spain, and other absolute monarchies of continental Europe the law typically was considered to be whatever the ruler said it was. (3) Not so in England. There, as an outgrowth of the medieval Christian teaching that all men, including rulers, are morally flawed, hence in need of restraints, the tradition took hold that even kings were "under God, and under the Law, because the Law makes the king." (4)

Traditional English Law A Creature of Custom, Not Government

Government could be subordinate to the law because English law was not made by government. Rather, the English common law and constitution were seen as emerging slowly over centuries from the "custom and usage" of society as a whole. This respect for custom did not signify passive acceptance of whatever history produced. Rather, it reflected the belief that right order evolved historically, that the good society resulted from proper restraints on man's lower inclinations. Sound custom tended to express and support man's higher nature and to establish a connection between a timeless, higher good and the particular circumstances of man's temporal life. Sound custom was viewed as constituted by a myriad of decisions down the ages intended to further a higher good. (5) "The common law of England," explained the seventeenth-century common lawyer John Davies, "is nothing else but the common law and custom of the realm.... A custom taketh beginning and groweth to perfection in this manner; when a reasonable act once done is found to be good and beneficial to the people, and agreeable to their nature and disposition, then they do use and practice it again and again, and so by often iteration and multiplication of the act it becometh a custom ... customary law is the most perfect and most excellent, and without question the best, to make and preserve a commonwealth. For the written laws that are made by either the edict of princes, or by council of estates [i.e., Parliament] are imposed on the subject before any trial or probation made, whether the same be fit and agreeable to the nature and disposition of the people, or whether they will breed any inconvenience or no. But a custom doth never become a law to bind the people, until it had been tried time out of mind...." (6) Society, far from being a mass of isolated and interchangeable individuals, was an organic body composed of vital institutions--the family, the town, the guild, the university, the Church--each with its own history and intrinsic value. The role of government was not to displace these institutions or to render them superfluous but to assist each to function properly within its sphere through the maintenance of peace and order.

The common law was quintessentially traditional. It combined Christian practices and mores, judicial decisions, parliamentary statutes, and the grants and agreements of kings--adding up to an enormous body of precedents, all of which were thought to benefit and elevate society. Representing the uninterrupted practice and consent of many generations, these precedents--which were studied in detail by common lawyers but known and revered more generally by the literate public at large--prescribed rights and corresponding duties for virtually every situation and circumstance. Customary law, the "law of the land," provided restraints on the governed but also--and with no less force--on public officials of every variety.

Those parts of customary law that applied specifically to rulers--delineating the purpose of their respective offices and restricting the means by which those purposes could be obtained--composed the great corpus of the English constitution. By long tradition the people were to be secure in their persons and property, which meant, among other things, that the king could not compel the payment of taxes, but that taxes were to be "a free gift" of the people, given by themselves or through their representatives. Similarly, it was prohibited to quarter soldiers in private homes, to declare martial law in peacetime, to require excessive bail, to impose cruel and unusual punishments, to imprison a person without a specific charge before a judge, or to deny the right of the people to bear arms. (7)

Such constraints on rulers existed because they were "sanctified by long usage, a uniformity of principle and practice for ages past." (8) And it was precisely such limits on government to which common lawyers and judges, among others, referred when delineating and upholding the "rights of Englishmen." Under the common law rule of stare decisis, "to stand by decided cases," judges were bound to follow precedents in rendering their decisions. The purpose, as Russell Kirk has pointed out, was to assure "evenhanded justice ... from one year to another, one decade to another, one century to another," (9) and thus to protect the people from "innovations" by government.

'Innovations' Violate Constitutionalism

Because constitutional rights were synonymous with the restraints on government embodied in customary law, the greatest threat to English liberties, constantly to be guarded against, were governmental innovations that undermined centuries-old customs. (10) "The first safety of princes and states," warned a pamphlet on British Liberties in 1766, "lies in avoiding all councils or designs of innovation, in antient and established forms and laws, especially those concerning LIBERTY, PROPERTY and RELIGION ... and thereby leaving the channel of known and common justice clear and undisturbed." (11) The underlying rationale for the constitutional doctrine against innovation was explained by the Englishman William Paley in his 1785 book Principles of Philosophy. "The opinion of right," wrote Paley, "always following the custom, being for the most part founded in nothing else, and lending one principal support to government, every innovation in the constitution, or, in other words, the custom of governing, diminishes the stability of government." A "known and settled usage of government," Paley added, "affords the best security against the enormities of uncontrolled dominion," but "this security is weakened by every encroachment which is made without opposition, or opposed without effect." (12)

As an inheritance from their ancestors, passed down from "time immemorial," the limits on government that were indistinguishable from long-established custom were "owned" by the people in the same way that landed or personal property was owned and, indeed, were considered a higher kind of property. (13) Accompanying the people's "property" in these traditional constraints was a sacred obligation to preserve them unchanged and to transmit them in undiminished form to their posterity. It was the living generation's duty, a Massachusetts writer argued in 1739, "to preserve" rights "entire, without suffering the least Breach to be made on them." (14)

The duty of the people to defy "innovations" was facilitated by the constitutional requirement of a trial by jury of one's peers in the vicinage (local community), who traditionally judged not only the facts but also the law when necessary. (15) And if passive disobedience did not prevent governmental assaults on ancient custom, the people, making good use of their right to bear arms, were forcibly to resist. So it was that King John was met in battle on the...