By Douglas V. Gibbs
A History of Constitutions
Humanity’s history is filled with attempts to structure political power. Along the way, the desire to secure individual liberties were added to the process.
Constitutional concepts have ancient roots, with the development of written constitutions representing a revolutionary approach that transformed the journey.
A number of ancient civilizations established a comprehensive set of laws that applied to members of society. Ancient Israel’s confederation of tribes, as described in the Bible, operated under a covenant that established fundamental laws and principles of governance. The Twelve Tables of Rome represent a crucial milestone in the history of constitutional development, serving as among the earliest and most influential examples of a fundamental legal code being committed to writing and publicly displayed.
The Twelve Tables were created around 450 B.C. as the culmination of a long struggle between commoners and the aristocratic class of the Roman Republic. The common people complained the law could be interpreted to serve the interests of those in positions of power as long as it was unwritten. The people demanded that the law be written so that it would be clear and apply equally to all citizens.
A commission was established to codify Roman law, and the commission traveled to Athens to study the laws of Solon and other Greek legal systems before drafting the tables. The first set contained ten tables, with a second commission adding two more tables the following year. The Twelve Tables covered all aspects of Roman life and law, and were put on public display in the Roman Forum, making them accessible to all citizens. This established the principle that law should be public, and known to those it governs. The Tables attempted to balance rights and interests. By committing the law to writing, the Tables established that the same legal principles applied to both the people and the aristocracy. Nobody was above the law.
The influence of Roman Law influenced legal systems throughout Europe – particularly the idea of written and publicly accessible law. However, under Romanized Europe, political power remained concentrated in the hands of the aristocracy.
The Saxon legal tradition also served as a crucial pillar in the development of the American Constitution. Saxon law was distinct from Roman aristocratic law and Mosaic theocratic law. Saxon law emphasized individual natural rights divinely ordained, providing a profound influence on American constitutional thought.
Saxon society was organized around kinship groups and tribal loyalties, with a legal system that emphasized personal freedom and individual responsibility. Their law was not imposed by a centralized state, but through localism (which would later be known as “common law”). Their structure of governance created a system of distributed authority rather than centralized power, with local communities playing a significant role in governance and justice.
When Christianity arrived in Anglo-Saxon England, it did not replace Saxon legal traditions, but rather transformed them by providing a more theological foundation. Alfred the Great (871-899) combined Saxon customary law with biblical principles, creating a legal tradition that emphasized both natural rights and moral responsibilities.
The Norman Conquest of 1066 brought Roman legal concepts to England, but rather than replacing Saxon tradition, elements of the Roman system were also gradually absorbed into existing common law. The synthesis created a rich legal tradition that combined Saxon concepts with Christian principles and Roman contributions.
- Saxon concepts
- Individual Natural Rights
- Local Self-Governance
- Customary Law
- Christian principles
- Moral Law
- Equality before God
- Justice tempered with mercy
- Roman contributions
- Systematic legal categories
- Written Records
- Procedural Regularity
The combination of Saxon tradition with Hebraic and Christian beliefs and Roman influences launched what would ultimately become Western legal tradition, and would become in particular the foundation of the British System of Law that so heavily influenced the Framers of the United States Constitution.
From there, the British System took great leaps forward. The concept of fundamental law limiting rulers appeared in various forms, but the Magna Carta (1215) represents a crucial milestone. It established that the king was also subject to law, and it defined governmental powers and the concept of natural rights in a written document. While not a complete constitution, it planted the seed that government may only operate according to established written principles.
The Dutch Republic’s constitution, also influenced by the Saxons, Christianity, and Roman influences, while not written in a modern sense, relied on foundational treaties.
In the New World, a desire for religious freedom, and a geographical separation from the rule of monarchy, created a new direction that extended Saxon and Christian traditions in a manner that would ultimately revolutionize the concepts of self-governance, consent of the governed, and Natural Rights.
In 1620, the Mayflower Compact was the first written framework of government and an early form of a written constitution in what is now the United States. It set a vital precedent for self-government and the social contract. In 1639, the Fundamental Orders of Connecticut set up a unified government for colonial towns in the Connecticut region, and is considered the first true written constitution. The English Civil Wars and the Glorious Revolution (1688) produced the English Declaration of Rights (1689), further developing constitutional principles by focusing on the security of individual natural rights.
State constitutions began to be adopted during the American Revolution, beginning with New Hampshire, South Carolina, Virginia and New Jersey all before the Declaration of Independence in 1776. The Declaration of Independence, while not a constitution, put into writing in the declaration that humanity is endowed by their Creator with certain individual rights, and the Articles of Confederation (1781) established America’s first constitution, though its weaknesses became apparent quickly.
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