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The Ditchley Foundation Annual Lecture XXIV

17 July 1987
English Anchor, American Sail:
Refection on two centuries of the United States Constitution


Delivered by:
Professor Benno C. Schmidt Jr.,  President, Yale University.

Every American schoolchild knows the praise lavished a century ago on our charter by Sir William Gladstone, which is indeed the most frequently quoted single statement about the Constitution of the United States: “[T]he American Constitution is, so far as I can see, the most wonderful work ever struck off at a given time by the brain and purpose of man.”

Less frequently heard at our celebrations is Macauley’s more pungent assessment:
“Your Constitution is all sail and no anchor.”

Macauley’s view has not worn well on either side of the Atlantic, although one supposes that current events in Washington may make the great Whig historian seem positively prophetic. Theodore Roosevelt wrote to an English friend in 1911: “I am always amused at the queer mistake that Macauley made when fifty-odd years ago he said that the American Constitution was all sail and no ballast or anchor. Our trouble has been that we have tended to permit one set of people to hoist sails for their own amusement, and another set of people to put down anchors for their own purposes, and the result from the standpoint of progress has not been happy.”

Had Macauley been around to defend himself he might have rejoined that Roosevelt was the constitutional sage who said of his appointee Oliver Wendell Holmes Jnr., the most elegant and influential of all American jurists: “I could have carved a judge with more backbone out of a banana.” More to the point, the gulf between Macauley and Roosevelt points to the sea-change in perspectives on the American Constitution that the passage of a half-century had brought. Macauley’s remark was directed to the biographer of Thomas Jefferson. It was written against a background of the turbulent constitutional tensions of the Jeffersonian period, the aggressive claims of Jacksonian democracy - which led many observers to refer to the President as “King Andrew the First”, and with a civil war that would spill blood on an unimaginable scale and significantly recast the Constitution only three years away.

Roosevelt, for his part, wrote at a time of increasing anxiety among progressives of both parties about the obstruction which laissez-faire constitutionalism and an activist Supreme Court was throwing across the path of social and economic regulation. And, indeed, British views of British constitutionalism by the time of Roosevelt’s remark had taken on a rather Macauleyan tone. After the House of Lords rejected His Majesty’s Budget in 1909 and saw its authority eclipsed, and after the immense institutional changes brought on by the Great War, Lord Bryce worried that British constitutional arrangements were virtually suspended and had less chance of reasserting themselves than did the American, while Lord Birkenhead had this gruff praise for America: “Your Constitution is a cast-iron document.”

The Constitution that seemed to Lord Birkenhead admirably cast-iron and to American progressives a “horse and buggy” Constitution for an industrial age, now seems to some observers riven with difficulties. The pattern of Congressional-Executive stalemate, the obsessive preoccupation with electoral politics, the tendency of the political institutions to evade responsibility by looking to the Supreme Court, the growing politicization of judicial appointments, all seem to some evidence of growing friction and irresponsibility in the American system.

Gladstone’s much more optimistic assessment was in fact part of a larger contrast of the American and British Constitutions and deserves full quotation:
The two constitutions of the two Countries express indeed rather the differences than the resemblances of the nations. The one is a thing grown, the other is a thing made.... But, as the British Constitution is the most subtile [sic] organism which had proceeded from the womb and the long gestation of progressive history, so the American Constitution is, so far as I can see, the most wonderful work ever struck off at a given time by the brain and purpose of man.

Gladstone might have thought he was on pretty firm ground. After all, it was the father of the American Constitution, James Madison himself, who had argued in The Federalist Number 14 that the Constitution was “a novelty in the political world.” Much later, after his retirement as President, he reiterated this view:
“I view our political system .... as a combination and modification of powers without a model; as emphatically sui generis.” And one of our most sagacious early Justices, William Johnson, had virtually anticipated Gladstone’s phrasing when he referred to the American Constitution as “the most wonderful instrument ever drawn by the hand of man..”

But Gladstone’s view did not sit well as the twentieth century dawned, with its pragmatic, organic, evolutionary view of everything, including the United States Constitution. “Gladstone’s notion of the Constitution as a creation is altogether erroneous,” asserted Alexander Johnston who wrote a widely-read entry on American constitutional history in the Encyclopaedia Britannica, “it was a growth, or, rather, a selection from a great number of growths then before the Convention.”
And Justice Holmes took the evolutionary argument a step farther as if to deny any sharp difference between British and American constitutionalism; “the provisions of the Constitution are not mathematical formulas .... they are organic living institutions transplanted from English soil.”

In his recent study of American constitutional culture, in 1986, Professor Michael Kammen of Cornell University concludes that American and British thinkers have passed through three distinct phases in their comparative views about the two systems. First, from the 1790s through our Civil War the understanding was general on both scales of the Atlantic that the American Constitution was fundamentally different from the British. Next came a half century or so from the 1870s into the 1920s in which the common roots of the two Constitutions in Magna Carta and in the English common law were stressed and in which the theme of organic, evolutionary institutional change common to the two systems submerged the sense of salient differences. And thirdly, in the 1920s and 1930s there was a growing sense in both Great Britain and in the United States that the fundamental institutional arrangements of the two systems are profoundly different. What contribution can we who are called to Ditchley by our abiding sense of the kinship of Great Britain and the United States make to the understanding of our comparative constitutional natures in this Bicentennial year?

The swings in opinion over time point to several undeniable truths about the American Constitution as we contemplate it in the light of its development over two centuries:

That it is possible to view the American Constitution as singular, original, and, created at a point in time; or as rooted in a tradition mainly British, organic in nature, with the events at Philadelphia two hundred years ago seen only as one point on an unbroken constitutional continuum stretching before and after.

That the basic distinctions that the American Constitution is written and the British Constitution is not, and that the American vests supreme interpretive authority in the judiciary even to the point of invalidating legislative enactments, while “the one fundamental dogma of English constitutional law,” as Dicey put it, is “the absolute legislative sovereignty ... of the King in Parliament”, can be seen either as points of radical differentiation in the two constitutional systems or as more modest distinctions between constitutional cultures much more alike than dissimilar.

That while many believe the American Constitution has offered human history’s most noble example of government under law, flexibility in light of changing circumstances and crises, adherence to enduring principles of human dignity and freedom, and social cohesion and political vitality, many others, on the contrary, believe that the British Constitution much better serves these great ends, and further believe variously that the American Constitution is dangerously rigid or dangerously elastic, vulnerable to a volatile public opinion or insulated from it, not a sufficient check on the tendency of democracies to fickleness and excess or, on the contrary, fundamentally undemocratic in its appropriation of power to an unelected judiciary which functions in fact as an aristocracy of the robe.

I believe the beginning of wisdom lies in recognizing the dialectical quality of the generalisations commonly made about British and American constitutional arrangements. Simplicity and tidiness are not the condition of constitutional norms and institutional arrangements often borne out of political controversy and convulsion.
The Common Law and Sir Edward Coke

It would take volumes to do justice to the complexity of the British roots of American constitutionalism, and of the mysterious mixture of kinship and singularity that characterises the relationships of our two great systems. Obviously, in a single lecture I can only hope to offer some sketchy thoughts about this vast enterprise.
Discourse among British and American jurists tends naturally to focus on the main distinctions between the systems, the fact of an authoritative text in the written American Constitution and our unique institution of judicial review. In this Bicentennial year, I wish to state most strongly my view that preoccupation with our constitutional differences, significant as they are, has tended unduly to subordinate appreciation of the critical common ground of the two systems, which is a shared central commitment to the basic ideal of government according to and under law, along with the whole apparatus of law that accompanies this precept, including the institution of an independent, principled, and creative judiciary. This is such an obvious foundation of constitutionalism in both our countries that we are in danger of missing its fundamentality. As Holmes reminded us, we need education in the obvious.

I am bound to say that I encounter thoughtful Americans who believe that because the British Constitution is not written it is vacuous, that because Parliament is supreme there is no resilient constitutional protection of fundamental human rights, and that it is only a rather vague tradition of civility that accounts for the hegemony of law in British society. And I have heard more than a few persons in Great Britain opine that the written American
Constitution is a straightjacket on public policy, that it represents the rule of the present by the past; that it is the charter for an aristocracy of the robe, and so forth. These are the voices of parochialism. The antidote for such misconceptions is a better appreciation of the vast area of common ground in our two constitutions.
My late colleague Julius Goebel, one of the masters of American legal history, wrote: “colonial civilisations, especially in their early stages, develop obedient to principles of imitation and are consequently meaningless unless one is master of the model. To this rule America has been no exception. And here the imitative impulse was at no point more strongly manifest than in the case of law.” What was true of the colonies remains true of the constitutional republic. The anchor of American constitutionalism lies precisely in the central principle of the English common law, vigorous in the colonies from the beginning, the idea of government according to law.

So much of the history of American constitutionalism is owed to Sir Edward Coke that it is fitting that it fell to Coke, as Attorney-General to King James in 1606 to proclaim in the Virginia Charter that the colonists “shall have and enjoy all Liberation, Franchise, and Immunities ... to all Intents and Purposes, as if they had been abiding and born, within their own Realm of England.” The other colonial charters followed suit. This meant that from the beginning, my forebears embraced as their birthright the great heritage of Magna Carta. It meant that they came to share in the expanding conception of social contract and public law embodied in the Bill of Rights of 1689, which Lord Home of the Hirsel in the first of these American Ditchley Foundation Lectures reminded us was the strongest foundation of British constitutionalism. It meant that the creative, independent, and progressive tradition of the English common law was the foundation of Americans’ view of the role of law in society.

Consider what this has meant elsewhere. First and foremost, it has meant, to quote Sir Ivor Jennings, that “go where you will in the Commonwealth in Asia or Africa and you will find that the courts are the heirs of the courts in Westminster Hall, acting ‘fairly and freely, without favour and without fear,’ applying common law remedies even when the wrongs are not common law wrongs”.

If there was a legal system in place that included provision incompatible with the fundamental principles of the common law, including Magna Carta, those provisions were invalidated. English courts might administer the existing law according to “justice, equity, and good conscience.” In short, the colonists elsewhere under the mantle of Great Britain felt the potency of the common law.

The American colonists received even more. For the American colonists took their ideas about Magna Carta and the common law in the main from the imaginative versions offered by Sir Edward Coke. As a leading scholar of Magna Carta, William Sharp McKechnie, has written: “If the vague and inaccurate words of Coke have obscured the bearing of many chapters [of Magna Carta] and diffused false notions of the development of English law, the service these very errors have done to the cause of constitutional progress is measureless”. Coke may have exaggerated the extent to which Magna Carta protected the rights of Englishmen. He may have overstated the idea that Magna Carta embodied the notion of a hierarchy of laws, that it was a superior law of permanence. He certainly was overreaching in his ultimate claim in Bonham’s Case that English courts should hold legislation invalid if it contravened “higher law”, that is, the fundamental principles of the common law. But very early in American history, Sir Edward Coke showed the extraordinary vitality and capacity for growth of the common law tradition that was the birthright of the American colonists.

Even setting aside Coke’s exaggerations, who can doubt that American constitutionalism draws its essential energies from the legal posture of the colonial experience? Of course, the Revolution had a powerful and precipitating effect, and explains the divergent form the American Constitution took - but the revolutionary impulse was fuelled to a considerable extent by the perception that it was an effort to assert and protect the pre-existing legal rights the colonists thought they should have enjoyed under the British Constitution.

The First Amendment and the Common Law

I should like now to illustrate the complexity one encounters in understanding the relationship between particular provisions of the American Constitution and the English common law. I will use as my example the First Amendment in relation to the English common law.

After nearly two hundred years, the First Amendment in our time and the history which gave it birth exist in uneasy and ironical disjunction. No society in human history has elevated freedom of expression to such a preferred position in law and social thought. “It is the matrix, the indispensable condition, for nearly every other form of freedom,” was Justice Benjamin Cardozo’s assessment of the First Amendment’s place in our constitutional scheme of liberties. Yet uncertainty and paradox shroud the history of this foundation principle of our constitutional order.

The words of the Amendment inescapably call for interpretation. What is the meaning of “abridging”? What is “the freedom of speech” that is protected? Is “the freedom of the press” different from “the freedom of speech”? Do either encompass military secrets, obscene movies, incitements to crime, advertising, political contributions? Is television to be protected like newspapers? And so on. Evidence of the framers’ intentions on all these questions is dark and ambiguous.

The central historical question about the First Amendment is how far it embodied the received eighteenth century legal tradition of English law and governmental practice as those influences were received, reshaped, and renewed in the colonial, revolutionary, and formative periods in America. Or was the Amendment a break from tradition, a Declaration of Independence for the law of freedom of expression?
The fact of the matter is that the Framers give us very little help indeed in answering this question. The “legislative history” of the drafting and passage of the First Amendment in the First Congress, and its ratification by the states, adds almost nothing to the bare words of the constitutional text.

Indeed, the only point the legislative history makes clear is that whatever the free speech and free press provisions meant, they applied only to the federal government, and left the states unfettered. This introduces a fundamental irony into efforts to relate the eighteenth century original understanding to modern concerns. Obviously if one conceives the First Amendment as constraining only the federal government, •while the states are free to regulate expression as much as they choose, one tends o think of the issues in terms of the allocation of governmental powers rather than is terms of fundamental human liberties beyond the reach of any government. One need have no more sympathy for speech than for armed robbery to view it as the preserve of the states.

Over time it has become a foundation principle of American constitutional law that whatever the First Amendment means, it applies equally to restrain the federal government and the states. Thus, efforts to bring to bear on modern problems the constitutional perspective of the framers confronts the dilemma that the framers were thinking about federalism as much if not more than about freedom of expression.

The paucity of explanatory material in the history of the adoption of the First Amendment is characteristic of most of the Constitution’s important provisions. The truth is that the politicians involved in the arduous tasks of nation-building or regeneration in the two great formative periods for our Constitution, after the Revolution and after the Civil War, had more pressing problems to contend with than to tease precise meaning out of constitutional language of acceptable generality. Constitution-making reflects in full measure the general preference of political discourse for vagueness and generality to embrace consensus and avoid dispute. At time of adoption, constitutional principles are typically designed to invite rhetorical commitment without straying into the bog of controversy about precise meaning. Our Constitution, moreover, embodies in clause after clause that basic truth of republican political life that one postpones to another day the solution of problems that need not or cannot be answered at present. Finally, and most important, even in 1791 there was appreciation of the special character of a Constitution, “intended,” as Chief Justice John Marshall put it, “to endure for ages to come, and to be adapted to the various crises in human affairs”.

Our founding forebears understood the notion of constitutional principle, capable of growth, with meaning to be fleshed out over time by the lessons of experience and application, informed by as yet unseen implications of overall constitutional structure and governmental practice under it, and elaborated by the process of principled adjudication in the state and federal courts. They knew the dangers of premature foreclosure of constitutional vision. They knew that legal principles must find not only their way but their meaning through the thicket of life and not be a grid superimposed on experience, before and above.

In this perspective, the fact that the First Amendment is “written”, in contrast to the British Constitution, must be viewed with a sense of proportion, recognizing the loose texture of the words, the reticence of the framers about their meaning, and the nature of law to explicate and elaborate itself over time. It is the invitation to judicial review embodied in the writing, and not the writing itself that is the crucial difference.
Even if one thought the First Amendment should be thought to embrace the received legal tradition of the common law, there would still be questions of the greatest subtlety about just what that tradition amounted to. Let me illustrate this by reference to the keenest controversy now engaging scholars of constitutional history concerning the First Amendment, the controversy over the status under the Amendment of the common law of seditious libel.
On this status turns large consequences for freedom of expression. The generally accepted view nowadays of the received eighteenth century legal tradition is that it was one in which criticism of government could be severely punished as “seditious libel,” that it was indeed one in which the great expositor of the common law, Sir William Blackstone, wrote that freedom of expression meant no more than freedom from pre-publication licensing and censorship and did not at all reach punishments of expression after publication or utterance.

But just what was the law of sedition as the American Constitution was coming into being at the end of the eighteenth century?

“To know what the law is,” Holmes remarked, “one must know what it has been, and what it is in the process of becoming.” For seditious libel, the eighteenth century was a tumultuous time of fundamental change. Seditious libel prosecutions were stymied in the American colonies, a victim of jury nullification. After the celebrated failure of the seditious libel prosecution of John Peter Zenger in 1735, American lawyers increasingly assumed that basic conceptions of human liberty and political theory required recognition of a defense of truth. It is true that the common law judges obdurately opposed this dangerous liberalization, but in doing so they met another important eighteenth century tendency, the growing recognition of the power of criminal juries to render conclusions of law as well as findings of fact. For the law of seditious libel, these substantive and procedural reforms were fundamentally unsettling,- almost revolutionary. To say that truth trumps the crime of seditious libel is to embrace the principle that there is a category of political expression whose protection takes precedence over the government’s capacity to protect itself from the disorder and agitation incident to criticism, indeed the most subversive type of criticism, that which •is true. This is to grant a positive value to expression above and beyond the interest of the government of the day.

In relation to seditious libel, then, those who claim to see in the First Amendment a principle of continuity with the received legal tradition must recognize that that tradition was in a revolutionary state of flux. If the First Amendment embraced a legal tradition, it embraced a bird on the wing not a grub in its hole, waiting for the transformating radiance of Mr. Justice Brennan. The direction of the flight is at least as important as the particular fix of the common law as of 1791. So it is with most of the crucial common law conception which lie behind the American Constitution. The view of history that informs our constitutional ideas ought to be that which was patent to the framers themselves, that the history of law, like the rest of intellectual and political history, is never at rest.

The First Amendment has invited more philosophical theorizing in search of meaning than any other part of our Constitution. But efforts to pin the Amendment to some particular purpose or philosophy have consistently been overcome by the centrifugal forces generated by the motley array of problems which courts actually confront in applying the law of the First Amendment to life. Under our system of judicial review, of course, the First Amendment is mainly given meaning over time through the common law method. Courts decide cases one by one. Principles are layered over time as the motive force and residue of individual judgements reached with only an imperfect vision of the future or of the universe of First Amendment issues. It is the peculiar genius of common law systems that the possibility of unified theory remains always suspended in tension between the drive of principled adjudication to search for coherence and the pull of the particular as difficult cases confront the elements of intuition, political exigencies and sympathies, and limited vision that are inevitable in the human act of judging. Thus, in keeping with the great tradition of the common law, in our First Amendment law the method of philosophy breathes the air of life.

For the First Amendment, as for other parts of our Constitution, there is no escape from judgement. The framers from two centuries past have bequeathed to us not so much meaning as the search for meaning. James Madison does not rule us from his grave. The Constitution gives Americans an anchor in history, and a broad, virtually open-ended foundation on which to try to build in our law a seamless web of enduring principles. History steers us to the right questions, but rarely supplies simple answers. The Constitution’s important guarantees present the necessity for judgement and justification in our time. But in law, as in life, the effort to apply intelligence to our destiny, to take a connected view, and to build a foundation of enduring principle, require us to nurture our roots in history -- for the American Constitution, our roots in the common law.

Conclusion

To collaborate with time gone by, as we have this evening, is to sense the evanescence of things. We risk a turn from the sturdy hopefulness of Madison and the seeming security of the great tradition that even preceded Runnymede, to the resignation marked in the Histories of Polybius, who saw in the constitutional history of ancient Greece “the regular cycle of constitutional revolution, and the natural order in which constitutions change, are transformed, and return again ...“ In this long perspective, it is easy to see with Polybius the destiny of decay in every stage of growth, and the inseparability of deterioration from even the most patient and resilient constitutional traditions. Even if that is so, how fortunate we are to live in two closely akin constitutional traditions that have produced the most just complex societies in human history. There remain heavy injustices. Our constitutional responsibilities are far from complete.

But we can say with the great Hadrian “I [am] thankful to the Gods, for they [have] allowed me to live in a period when my allotted task consisted of prudent reorganization of a world, and not of extracting matter, still unfound, from chaos, or of lying upon a corpse in the effort to revive it”.

Our task is not to tear down and start anew, but to shore up, refine, and where necessary reconstruct in harmony with that sense of justice that activates both our constitutional traditions. “To reconstruct”, Hadrian tells us, “is to collaborate with time gone by, penetrating or modifying its spirit, and carrying it toward a longer future. Thus beneath the stones we find the secret of the springs.”