Why the Constitution Was Written Down.

• Author: Bowie, Nikolas

Table of Contents Introduction I. The First Lawsuit, 1606-1654 A. Sir Ferdinando Gorges and Captain John Mason B. The Massachusetts Bay Company C. The Charter of 1629 D. JohnWinthrop E. The Quo Warranto F. The Effect of the Quo Warranto in New England G. Enforcing the Quo Warranto from England H. The English Constitution I. The Charter After the Quo Warranto II. The Second Lawsuit, 1654-1686 A. The Annexation of Maine and New Hampshire B. The Restoration of Charles II C. Edward Randolph D. The City of London Case E. The Second Quo Warranto III. The Coup, 1686-1691 A. Increase Mather B. The Dominion of New England C. The Glorious Revolution D. The Coup E. The Restoration of the Charter Constitution F. The Trial of Edward Randolph G. The New Charter IV. The Revolution, 1691-1787 A. The Charter of 1691 B. Thomas Hutchinson C. Charters in Other Colonies D. The Charter Constitution in the Lead-Up to Revolution E. The Nullification of the Charter Constitution F. The First Written Constitutions G. The Massachusetts Constitution of 1780 H. The Federal Constitution of 1787 Conclusion Introduction

When American revolutionary Thomas Paine bragged to his friends in England about the U.S. Constitution, the feature he emphasized wasn't the powers it separated or the rights it protected, but rather the fact that it was written down. Written words might seem like an obvious feature of any constitution, but Paine was quick to point out that they're missing from the constitution of Great Britain, the country from which the United States seceded. (1) Then, as now, the British Constitution referred to the unwritten arrangement of laws and institutions that make up, or constitute, the British government. (2) Paine delighted in contrasting the "so much talked about" but never seen British Constitution (3) with the American version "to which you can refer, and quote article by article in a visible form." (4)

The American departure from the British model was no trivial change. Written words allowed anyone to read exactly what a government had the power to do. And unlike an unwritten constitution, which a legislature could theoretically change on a whim, the text of a written constitution was hard to erase. (5) These qualities of written constitutions so appealed to Americans that between 1776 and 1777, every state that declared independence immediately assigned some written document to serve as its constitution. (6)

The depth of American enthusiasm for written constitutions presents something of a historical puzzle: Why did colonists, who had spent generations under an unwritten constitution, suddenly decide that their own constitutions had to be written down?

The traditional explanation is that the revolutionary United States was full of political geniuses. Fifty years ago, two celebrated historians assumed that Americans in the 1760s, "[l]ike their contemporaries in England and like their predecessors for centuries before, ... understood by the word 'constitution' not, as we would have it, a written document," but rather as something akin to the unwritten British version. (7) The notion of written constraints on governmental power, the story goes, was one of many discoveries of revolutionary tinkerers like James Madison. Several Justices of the U.S. Supreme Court have similarly subscribed to the view that the ideas embodied in the U.S. Constitution represent "the unique contribution of the Framers to political science and political theory." (8)

This Article presents a different origin story for written constitutionalism--but one just as fittingly American: a series of lawsuits. The lawsuits began 150 years before the American Revolution, lasted for six decades, and ended with a coup d'etat in 1689 in which a thousand armed farmers stormed the City of Boston and demanded, of all things, a corporate charter. (9)

The charter at issue belonged to the Massachusetts Bay Company, a corporation that governed most of New England from 1629 to 1686. (10) When the company was founded, it was one of many municipal and trading corporations given a charter by the English Crown--each of which gave special permissions to govern people and territory on the Crown's behalf. (11) The expectation for all of these corporations was that they would administer their territories from the safety of English boardrooms and under the scrutiny of Crown oversight. (12) But unlike every other corporation then in existence, the founders of the Massachusetts Bay Company took their charter and corporate government out of Europe and across the Atlantic Ocean so that residents of New England could govern themselves. (13) The founders assumed that, as with any corporation, the Crown would leave them alone so long as they abided by their charter's terms. (14) But within a few years, as boatloads of religious and political dissidents filled Boston Harbor, the Crown's advisors tried to dissolve the corporation by suing it in court and arguing that the corporation's founders had taken actions inconsistent with the charter's words. (15)

Part I of this Article tells the story of this litigation, which spurred the company's founders to make legalistic arguments that all of their actions were permitted by the text of their charter--arguments that found their way into New England's social and political culture. (16) Although the Massachusetts Bay Company was far from the only corporation in Old or New England whose charter had been threatened by the Crown, it was unique in that its corporate government met thousands of miles away from England--meaning it was the only elected government its constituents regularly interacted with. (17) This remoteness led New Englanders to treat the possible dissolution of their government as a catastrophe. (18) And to a degree unusual for corporations of the era, the directors of the besieged Massachusetts Bay Company considered it their religious and political imperative to tie each of their governing decisions to specific text in the charter. (19) Whereas the officials of England-based corporations typically ignored any rules in their charters that instructed them how to govern themselves, the Massachusetts officers and residents, under threat of litigation, wielded interpretations of their charter in domestic debates over immigration, voting rights, the separation of powers, and virtually all other controversial issues. (20)

Part II describes what happened between 1654 and 1686, after the English Civil War temporarily ended any threat that someone from England might cross the Atlantic Ocean to dissolve the Massachusetts Bay Company's charter. Massachusetts officials responded to this benign neglect by interpreting their charter broadly: annexing neighboring colonies, establishing a mint, requiring people to take a sovereign oath of loyalty, and enforcing their criminal laws with capital punishment. (21) Although these decisions were controversial, the company's officials stridently defended them by pointing to specific authorizing text in the charter. (22) These defenses illustrate how the text of the Massachusetts Bay Company's corporate charter had become so central to the colony's political culture that colonists continued to revere it even after the threat of transatlantic legal sanction had temporarily ended. The earlier litigation was not the only reason for the text's centrality--more likely, the lawsuit merely catalyzed a homemade potion of religious norms, personal spats, ambitious bureaucrats, and an emerging demand for legal principles to guide discretionary decisionmaking. But whatever the cause, by the 1680s, constituents of English corporations were generally apathetic about the text of their charters, (23) while New Englanders commonly understood their charter as a consensual source of sovereign authority, a religious covenant with God that protected them from English oversight, and, most importantly, as the "constitution"--or framework--that guided their government. (24) By the time the Crown finally sent over a ship to dissolve the company's charter, English theorists were describing England's "constitution" as a collection of unwritten customs and traditions, while New Englanders described their "Charter Constitution" as a single, written document. (25)

Part III describes the five years after 1686, when the King replaced the Massachusetts Bay Company's charter with a governor unbound by any similar document. (26) After six decades of interpreting their charter to justify and criticize their government's actions, many Massachusetts colonists believed that only written limits could adequately restrain government officials from "arbitrary" rule. (27) It only took three years after the Crown dissolved the Massachusetts Bay Company until hundreds of armed Bostonians revolted to restore their "Ancient Constitution": a government "according to the Rules of the Charter." (28) Their agent in England, Increase Mather, explained to participants in England's own Glorious Revolution that Massachusetts's charter was no ordinary corporate document but the colony's "Constitution," (29) its written check on "Arbitrary Government." (30) And in 1691, the newly appointed King and Queen rewarded the successful junta in Boston with a new written charter Mather thought actually improved on the company's "original constitution." (31)

Part IV explains how the colonists' identification of the Massachusetts charter with the budding idea of a constitution only became stronger over the next century. In 1764, the Lieutenant Governor of Massachusetts, Thomas Hutchinson, published a best-selling history of the charter's seventeenth-century evolution from its "original design ... to constitute a corporation in England" (32) to the "form of ... constitution" for a New England commonwealth. (33) During the political debates that followed over the next decade, colonists frequently quoted this history to explain how British policies were...