What is the Constitution?

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Simply put a written constitution as defined by Merriam-Webster Dictionary is “a written instrument embodying the rules of a political or social organization”.

But what is the US Constitution? Is it simply, a written instrument embodying the rules of a political or social organization, or is the Constitution of the United States something more? Is our Constitution more than just words on parchment that describe what the government is? Many nations now have a written Constitution, some Nations have ratified several Constitutions since ours took effect in the spring of 1789, but ours has lasted, with only San Marino’s Constitution being older. Why has our lasted and withstood the test of time, while other nations have tried repeatedly, only to do it again sometime later?

The first thing we need to look at is what type of constitution we have. A constitution, or lack thereof, is more than just words on paper, the value and weight of the words can vary as much as the variety of one society to another itself. Some nations do not have a written constitution at all, this is an uncodified constitution, such as with the United Kingdom. There is no one source of “supreme” law, rather it operates the history of law itself to determine what law is today, in addition to any changes that may be made to it by the current government with no or few defined limits.

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The United States uses a codified constitution, ours is written in the entirety being the one source. It is the source or groundwork of law itself, at all levels of government. It is also an entrenched constitution, this is to mean it cannot be simply changed by an act of the Legislature, but can be changed by a more arduous process [Amendments Article V]. From there the Constitution establishes a Federal System, that being of more than one sovereign state or government with a central government, each with a defined role and powers.  The Constitution also divides power among differing branches and also provides checks to ensure one branch does not have too much power.

But is the United States Constitution, a “pure” legal document, well I guess by definition, yes it is, but unlike a piece of legislation which itself is also a legal document, the Constitution is much more. Legislation is an act by a Legislature to define what a law is, and it also may prescribe enforcement [at some levels], as well as a range of punishment for its violation. But our constitution, unlike legislation was not passed by a legislature either National or State, rather by a body [convention] of the people (Article VII).

This is the key difference between a legal document of the Original Constitution, and an Act of Legislation, who the enabling power was.

The concept of a Constitution was nothing new to the Delegates or the people in the time of ratification. Several states had already adopted new Constitutions during or after the American Revolution. The United States had been operating under another Constitution, the Articles of Confederation. The idea of a Constitution can be traced to the Greek Empires, but perhaps one of the more modern influences on a Constitution would be John Locke, and Charles de Secondant de Baron Montesquieu. 

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John Locke in his Two Treatises of Government, proposed not only the idea of a Constitution [Locke used the term contract], what are natural rights [the inalienable rights from the Declaration of Independence], that the legitimate source of power was the people themselves, and that the government must operate within the guidelines of the contract, to establish a Supreme Power, and not allow an Absolute Power. The Supreme Power was the ability of the Legislature to make Law, but the law it could make must reside within the limits of what its contract with the people allowed, it could venture no further, not acquire power which is was not given, nor delegate its power to the other part of Government the Executive.

Montesquieu, in his Spirit of Laws also wrote about many of the same things as Locke such as, Natural Rights, the people were the only legitimate source of power, a Representative Government, separation of powers. However Montesquieu introduced the concept of a three branch government, with each branch distinct from the other, and that the branches had a means of checking the power of the other two. Where Locke argued only for a Legislature [to make law] and Executive [to enforce law], Montesquieu also added the Judicial [to interpret law]. Montesquieu also directly addressed a written constitution, to define what limits existed.

Locke and Montesquieu not only influenced the Founders and Delegates on the basic foundations of a government, but also on the legitimate power base, the People. Both argue, the people must authorize a government for it to be legitimate, and they always retain the power to take it back [by force if needed]. This brings us back to the difference in legal documents of an act of legislation and a constitution, specifically the Constitution of the United States.

The Constitution of the United States is more than a legal document explaining what government is, what it can do, and what it cannot do. It is a Contract from the people, it is the people delegating the Natural Rights they hold as individuals and a society, to a government to serve the peoples purpose.

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The US Constitution is the consent from the people to be governed, it delegates how they consent to be governed, and it delegates what powers it cedes to enable it to be governed. This was done to do as we see in the preamble, “form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity”. It was a document to define what government was, and imposes limits on it. This is the way the Constitution must always be viewed, as a contract from the people. These questions must always be asked, is this what the people consented to?, Is this a power the people ceded to the government?, Is this in the spirit of what the people wished for government to be?, not simply as another legal document that can be twisted, and loopholes found, but only a document of the consent of the people, and limits not on the people, but government it consented to, well at least for an Originalist.