NARRATOR: Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the proper structure of government. Today’s episode features Professor Steven G. Calabresi, the Clayton J. & Henry R. Barber Professor of Law at Northwestern Pritzker School of Law. He is Chairman of the Federalist Society's Board of Directors. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. - PUBLIUS: Where did the Founding Fathers get their ideas about the structure of the Constitution? Today we’re joined by Professor Steven Calabresi who will give us a brief historical and philosophical overview of the events, traditions, and authors that influenced the Founding generation. How did the Founders assimilate but also change these ideas to write a uniquely American Constitution? STEVEN CALABRESI: The constitutional framing period for the United States started with the Declaration of Independence in 1776, marked another very important milestone with the writing of the Constitution in 1787. The constitution was then ratified in 1787, and 1788 and by 1791 the Bill of Rights, the first 10 amendments had been added to the constitution. So the American framing period is actually a 15 year period of time stretching from 1776 when we declared independence, until 1791 when the Bill of Rights was ratified. And during that period of time there were various intellectual currents that were present in American constitutionalism. At the time of the Declaration of Independence, the framers of the founders of the United States were asserting what they thought were the traditional rights of Englishmen. And among those rights were one, the right to be governed by the consents of the governed, which was established in England in the glorious revolution of 1688. Second, the right to be free from taxation without representation, which is a right that King Charles I had recognized when he assented to the petition of right in the 1620's. Third, American's believed as Englishmen that they had a right to jury trials, and King George III was trying columnists in admiralty courts where there were no jury trials. And so, American's thought they were being deprived of that traditional right of Englishmen. And fourth, Americans thought they had a right to privacy in their homes, and King George III was having his naval officers conduct random general searches of warehouses trying to find smuggled goods. There were a lot of smuggled goods to be found, because the colonists didn't like to pay taxes to Britain on the goods it was importing. PUBLIUS: Can you elaborate on what the Founders thought were “the rights of Englishmen”? Where did the formulation for these rights come from? STEVEN CALABRESI: So one intellectual current in the founding, is that the founders thought they had the ancient rights of Englishmen. And those ancient rights were most clearly elaborated according to the founders by Sir Edward Cook, who was an English judge and politician, who was in power during the period between 1603 and his death at the end of the 1620's. And Sir Edward Cook argued that England had, had an ancient constitution that went back to the time of Edward the Confessor, before the Norman invasion. And that Magna Carta in 1215 by which the British king agreed to be bound to certain rights, was simply a reaffirmation in 1215 of ancient rights that Englishmen have had prior to 1066, prior to the Norman Conquest. The important thing is that Americans thought they inherited these ancient Constitution rights, and they said about putting them into their state Constitutions right away. So one very important intellectual current at the founding was the founders understanding of their rights under english constitutional law, which had developed organically, but particularly as it was expressed by Sir Edward Cook. A second very important intellectual influence on the founders was John Locke, whose two treatises on government published after his death in 1690, because he was scared to publish them while he was still alive. John Locke's two treatises on government established that government should rest on the consent of the governed. That individuals were born with natural and inalienable rights. That every individual was born free, and equal, and had natural and indivisible rights. And this Locke-ian principle, and the idea of English liberties is best encapsulated in the preamble to the Massachusets Constitution of 1780. Which is very similar to the preamble of seven of the 11 other state constitutions that were written right after American independence. And at the risk of being boring, I will quote you what I think is the poetic language of the preamble to the Massachusetts Constitution of 1780, and that is, it said, "All men are born free and equal, and have certain natural and inalienable rights, among which are the right to enjoy, and defend life and liberty. The right to acquire, possess, protect, and defend property, and the ability to achieve happiness and safety." So those ideas were Locke-ian ideas, they were also ideas from Sir Edward Cooke about the ancient liberties of Englishmen, but they started with a premise that all men are born free and equal, and have natural and inalienable rights to life, liberty, property, and to the pursuit of safety and happiness. Thomas Jefferson's famous language in the Declaration of Independence where he says, "All men are created equal, and have certain natural and inalienable rights among which are the right to life, liberty, and the pursuit of happiness." That language is actually plagiarized from the state constitutions of the 1770's, and the 1780's, and Jefferson made it a little bit more poetic by shortening it, and reworking the phrasing, but that was the basic idea. And it was an idea that all Americans were committed to. It was probably best verbalized at the founding by Thomas Payne, whose book "Common Sense" helped trigger the American Revolution in 1776. PUBLIUS: What about the Constitution? How did it elaborate and solidify these rights of the people mentioned in the Declaration? STEVEN CALABRESI: Okay, the preamble to the US Constitution is tremendously significant, and to appreciate its significance, I'm just going to quickly read it, and then talk about what's important. The preamble says, "We the People of the United States, in Order to 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, do ordain to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." The preamble to the US Constitution is significant because it begins with the words, "We the people ... " And it says, "We the people do ordain and establish this constitution ... " And by doing that, the Constitution makes it clear that sovereignty under the Constitution rests with, "We the people of the United States." Who can only amend the Constitution in a very special, and complicated way, which is set out in article V, providing for constitutional amendments. The notion of popular sovereignty expressed in a preamble was revolutionary in 1787. There had been a prior document that governed the 13 colonies as loose treaty organization, and the preamble of that document read "The states of New Hampshire, Massachusets, Rhode Island, Connecticut ... " et cetera, et cetera, "Do hereby ordain and establish these articles of confederation." Under the articles of confederation the preamble made it clear that each of the 13 states were separate sovereigns, and that the constitution was established by the 13 states. The American constitution departs deliberately from that, and it says that, "We the people of the United States are sovereign." And so, the power of the national government flows directly from the American people to the Constitution, and the parts of the government that the Constitution sets up. The Constitution is not simply a compact among states, the way the articles of confederation was. PUBLIUS: What about the British ideas about sovereignty? How did they develop their constitution? How is the American Constitution different although both systems involve a mixed regime? STEVEN CALABRESI: Another important point of contrast to the popular sovereignty of the American Constitution is with the idea of sovereignty under British Constitutional law from the glorious revolution of 1688 until American Independence in 1776. And the British believed that they had what they called a mixed or balanced Constitution, based on the writings of Aristotle, of a Greek philosopher named Polybius and also of the Roman philosopher, Cicero, the medieval Catholic philosopher, Saint Thomas Aquinas, and the modern renaissance political scientist, Niccolo Machiavelli, and all of those ancient philosophers had argued that there were three different kinds of regimes in the world, and each regime had a perfect type and an imperfect type. They thought, the philosophers of the mixed regimes, like Aristotle and Polybius, thought that there were monarchies, and when a monarchy was good, it was called a monarchy or an empire, when it was bad, it was called a tyranny or a dictatorship. Aristotle and Polybius thought that there were also regimes governed by a few people, and when they were good regimes, they were called aristocracies. Aristoi in Greek means good. When they were bad regimes, they were called oligarchies, i.e., the selfish rule of a few people for their own good and not for the common good. Then, Aristotle and Polybius also agreed that there were regimes that were democracies, and when they governed well, as the democracy of Athens did, they were called democracies, but Aristotle and Polybius, aware of the death of Socrates no doubt, realized that democracies could degenerate into mob rule. Mob rule was the bad form of government. Essentially, the ancient philosophers, who the English borrowed from in the period between 1688 and 1776, argued that there was government by the one, the few, and the many, and the reason the British thought they had a perfect mixed regime and constitution was because, in 1776, they had all three forms of government checking and balancing each other. They had one king, George III. That brought the advantages of oneness, strength, and foreign policy and with military and in suppressing domestic factions. They had an aristocratic element to their constitution in the form of the House of Lords, which still had real power in the 18th century and which also heard cases and was the highest court in the land, and then the British had a democratic element in their constitution in that landowners could elect members of the House of Commons. The British believed that their constitution was perfect because it was a constitution of the one king, the few House of Lords members, and the many represented in the constitution, and that all of these different estates of society balanced each other off, and the idea was, essentially, the idea that Lord Acton came up with in the 19th century, which is that power corrupts and absolute power corrupts absolutely, so better to divide power among a king, a House of Lords, and a House of Commons than to concentrate it in any one place. The British theorist, William Blackstone, came up with the idea that an Act of Parliament, passed by both Houses of Parliament and signed by the king, was a sovereign act of the British people, and down to the present day, Acts of Parliament are sovereigns acts of the British people that have the force of constitutional amendments in the United States. This explains why judicial review could not develop in the United Kingdom and why it did develop in the United States. An ordinary judge could not strike down a British Act of Parliament as violating the unwritten constitution because the king and the House of Lords and the House of Commons had the power to amend the unwritten British constitution, so Acts of Parliament were prima facie valid no matter what they said, and judicial review was not possible in the British context. Under the American Constitution and under the state constitutions created after 1776, where sovereignty rested in the people of the United States or in the people of a state, courts began in the states, prior to Marbury versus Madison, and then, at the federal level, in Marbury versus Madison, the courts essentially said, "The sovereign people have delegated us the judicial power to decide cases or controversies. We have to do that agreeably of the Constitution, and if the legislature or the President or the states exceed their powers under the Constitution, we, the courts, as independent agents of the sovereign people, can set aside the decision of the Congress or the President or of the states." The popular pre-sovereignty of the Preamble is tremendously important, not only because it rejects the compact of states' idea of the Articles of Confederation, but it also rejects the mixed regime of the British constitution and places sovereignty in we, the people of the United States, who can only act to amend the Constitution by 2/3 of both Houses of Congress and 3/4 of the states, and ordinary acts of Congress signed by the President are not acts of the sovereign people, so the Supreme Court or the lower federal courts or even the state courts can set them aside if they're unconstitutional. PUBLIUS: Another interesting difference between the American Constitution and the British constitutional tradition is that one is written and the other unwritten. Why is that? Why did the Founders want a written document although they had been English colonists under an unwritten constitution? STEVEN CALABRESI: One of the things that's really distinctive about the U.S. Constitution, which was written in 1787, and went into effect in 1789 is that it was the first national written constitution in human history. In that respect, it marked a major departure from the constitutional tradition of England, which had colonized the 13 original American colonies which became the 13 original states. England had, in 1776 and still has today, an unwritten constitution which consists of a series of conventions and traditions and some texts which are considered to be of constitutional significance, but not in the way that the U.S. Constitution is. The way that the framers of the U.S Constitution came up with the idea of written constitutionalism is that when the English settled the 13 original American colonies, they gave each colony a corporate charter issued by the King of England. That corporate charter assigned some powers to a colonial governor, who was appointed by the King, other powers to a colonial legislature. The lower house of which was elected by the people of the colonies, and other powers to judges who were appointed by the governor together in consultation with the King of England. Those colonial charters from 1607 when Jamestown was settled, until 1776 when the United States declared independence from the United Kingdom, those colonial charters were in effect prototype written constitutions for the colonies. So one of the first things the colonies did in 1776, after declaring independence, was that 11 of the 13 colonies between 1776 and 1787 wrote their own state constitutions. Those were the very first written constitutions ever. The Federal Constitution of 1787 which is in effect today, was written in part out of the experience the framers had in writing these first initial constitutions. Americans thought that having a written constitution was very important for a number of reasons. First, there had been confusion under the English Constitution as to exactly what rights citizens enjoyed. The Americans believed they enjoyed more rights as Englishmen in the 1760s and 1770s then King George the third was willing to admit. As it happens, the American colonists were right about that as a matter of English Constitutional history, but after their experience with King George the third, they wanted written bills of rights and written state constitutions so that there wouldn't be ambiguity going forward in the future about what was covered in a written constitution. The development of a written constitution is a huge step in human history. In part because it took the social contract theory of John Locke that government is a social contract that people enter into with one another to delegate powers to a government. It took John Locke's social contract theory and actually embodied it in national law. So the fact we have a written constitution and Britain has unwritten constitutional traditions really sets the United States apart. Not only from Britain, but also from Canada, which has a customary constitution and from some other common law countries that have customary constitutions. When the U.S. written Constitution was first proposed in 1787, every other country in the world other than the 13 American states was either an empire or a monarchy, or an aristocracy or a dictatorship. So the United States was absolutely unique from 1776 and 1787 on in being the world's first democracy and in having the world's first written constitution. That's a very distinctive part of our American tradition. The written U.S. Constitution is small enough so that you can all carry it around in your coat pockets if you want to, to consult it. It's actually only seven thousand words long and it has the distinction of being the oldest constitution in the world, the shortest constitution in the world and the first written constitution in the world. It has formed a model for every other country since 1787. Today, every country, almost every country except the United Kingdom has a written constitution. Since 1945, all constitutional democracies have had bills of rights and systems of traditional review to enforce their written constitutions. But in 1787 when this document was adopted, it was absolutely unique. The framers captured that with a phrase in Latin which they used to describe the constitution. They said it was a Novus Ordo Seclorum, meaning a new order of the ages. Many of the framers liked to sign their letters 1792 A.D. and in the year of the independence of the United States, the 16th. Thereby emphasizing the decisive break with Britain in the Declaration of Independence of 1776 and the decisiveness of the written constitution of 1787, which has been amended 27 times in some very important ways. PUBLIUS: Any closing thoughts on the United States Constitution? STEVEN CALABRESI: One of the important purposes of the Constitution that we should never lose sight of is that the final purpose it lists for creating the Constitution is to secure the blessings of liberty to ourselves and our posterity, and it is for that reason, as well as others, that the Constitution is ordained and established. That idea of securing the blessings of liberty was a sacred idea of the founding, present in the Declaration of Independence, present in the First Day Constitutions, and present in the Preamble. Abraham Lincoln, very importantly, picked up on that in the Gettysburg Address when he began the Gettysburg Address by saying, "Four score and seven years ago, our forefathers brought forth on this continent a new nation conceived in liberty and dedicated to the proposition that all men are created equal." Lincoln, by those words, recognized that the founders' idea of all men are born free and equal was a central, constitutional, animating principle and that the securing of the blessings of liberty was the core purpose of the Constitution or a core purpose of the Constitution, along with promoting the general welfare and providing for the common defense. NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class! - Transcript [for YouTube - no speaker names/verbatim] Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the proper structure of government. Today’s episode features Professor Steven G. Calabresi, the Clayton J. & Henry R. Barber Professor of Law at Northwestern Pritzker School of Law. He is Chairman of the Federalist Society's Board of Directors. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. - Where did the Founding Fathers get their ideas about the structure of the Constitution? Today we’re joined by Professor Steven Calabresi who will give us a brief historical and philosophical overview of the events, traditions, and authors that influenced the Founding generation. How did the Founders assimilate but also change these ideas to write a uniquely American Constitution? The constitutional framing period for the United States started with the Declaration of Independence in 1776, marked another very important milestone with the writing of the Constitution in 1787. The constitution was then ratified in 1787, and 1788 and by 1791 the Bill of Rights, the first 10 amendments had been added to the constitution. So the American framing period is actually a 15 year period of time stretching from 1776 when we declared independence, until 1791 when the Bill of Rights was ratified. And during that period of time there were various intellectual currents that were present in American constitutionalism. At the time of the Declaration of Independence, the framers of the founders of the United States were asserting what they thought were the traditional rights of Englishmen. And among those rights were one, the right to be governed by the consents of the governed, which was established in England in the glorious revolution of 1688. Second, the right to be free from taxation without representation, which is a right that King Charles I had recognized when he assented to the petition of right in the 1620's. Third, American's believed as Englishmen that they had a right to jury trials, and King George III was trying columnists in admiralty courts where there were no jury trials. And so, American's thought they were being deprived of that traditional right of Englishmen. And fourth, Americans thought they had a right to privacy in their homes, and King George III was having his naval officers conduct random general searches of warehouses trying to find smuggled goods. There were a lot of smuggled goods to be found, because the colonists didn't like to pay taxes to Britain on the goods it was importing. Can you elaborate on what the Founders thought were “the rights of Englishmen”? Where did the formulation for these rights come from? So one intellectual current in the founding, is that the founders thought they had the ancient rights of Englishmen. And those ancient rights were most clearly elaborated according to the founders by Sir Edward Cook, who was an English judge and politician, who was in power during the period between 1603 and his death at the end of the 1620's. And Sir Edward Cook argued that England had, had an ancient constitution that went back to the time of Edward the Confessor, before the Norman invasion. And that Magna Carta in 1215 by which the British king agreed to be bound to certain rights, was simply a reaffirmation in 1215 of ancient rights that Englishmen have had prior to 1066, prior to the Norman Conquest. The important thing is that Americans thought they inherited these ancient Constitution rights, and they said about putting them into their state Constitutions right away. So one very important intellectual current at the founding was the founders understanding of their rights under english constitutional law, which had developed organically, but particularly as it was expressed by Sir Edward Cook. A second very important intellectual influence on the founders was John Locke, whose two treatises on government published after his death in 1690, because he was scared to publish them while he was still alive. John Locke's two treatises on government established that government should rest on the consent of the governed. That individuals were born with natural and inalienable rights. That every individual was born free, and equal, and had natural and indivisible rights. And this Locke-ian principle, and the idea of English liberties is best encapsulated in the preamble to the Massachusets Constitution of 1780. Which is very similar to the preamble of seven of the 11 other state constitutions that were written right after American independence. And at the risk of being boring, I will quote you what I think is the poetic language of the preamble to the Massachusetts Constitution of 1780, and that is, it said, "All men are born free and equal, and have certain natural and inalienable rights, among which are the right to enjoy, and defend life and liberty. The right to acquire, possess, protect, and defend property, and the ability to achieve happiness and safety." So those ideas were Locke-ian ideas, they were also ideas from Sir Edward Cooke about the ancient liberties of Englishmen, but they started with a premise that all men are born free and equal, and have natural and inalienable rights to life, liberty, property, and to the pursuit of safety and happiness. Thomas Jefferson's famous language in the Declaration of Independence where he says, "All men are created equal, and have certain natural and inalienable rights among which are the right to life, liberty, and the pursuit of happiness." That language is actually plagiarized from the state constitutions of the 1770's, and the 1780's, and Jefferson made it a little bit more poetic by shortening it, and reworking the phrasing, but that was the basic idea. And it was an idea that all Americans were committed to. It was probably best verbalized at the founding by Thomas Payne, whose book "Common Sense" helped trigger the American Revolution in 1776. What about the Constitution? How did it elaborate and solidify these rights of the people mentioned in the Declaration? Okay, the preamble to the US Constitution is tremendously significant, and to appreciate its significance, I'm just going to quickly read it, and then talk about what's important. The preamble says, "We the People of the United States, in Order to 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, do ordain to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." The preamble to the US Constitution is significant because it begins with the words, "We the people ... " And it says, "We the people do ordain and establish this constitution ... " And by doing that, the Constitution makes it clear that sovereignty under the Constitution rests with, "We the people of the United States." Who can only amend the Constitution in a very special, and complicated way, which is set out in article V, providing for constitutional amendments. The notion of popular sovereignty expressed in a preamble was revolutionary in 1787. There had been a prior document that governed the 13 colonies as loose treaty organization, and the preamble of that document read "The states of New Hampshire, Massachusets, Rhode Island, Connecticut ... " et cetera, et cetera, "Do hereby ordain and establish these articles of confederation." Under the articles of confederation the preamble made it clear that each of the 13 states were separate sovereigns, and that the constitution was established by the 13 states. The American constitution departs deliberately from that, and it says that, "We the people of the United States are sovereign." And so, the power of the national government flows directly from the American people to the Constitution, and the parts of the government that the Constitution sets up. The Constitution is not simply a compact among states, the way the articles of confederation was. What about the British ideas about sovereignty? How did they develop their constitution? How is the American Constitution different although both systems involve a mixed regime? Another important point of contrast to the popular sovereignty of the American Constitution is with the idea of sovereignty under British Constitutional law from the glorious revolution of 1688 until American Independence in 1776. And the British believed that they had what they called a mixed or balanced Constitution, based on the writings of Aristotle, of a Greek philosopher named Polybius and also of the Roman philosopher, Cicero, the medieval Catholic philosopher, Saint Thomas Aquinas, and the modern renaissance political scientist, Niccolo Machiavelli, and all of those ancient philosophers had argued that there were three different kinds of regimes in the world, and each regime had a perfect type and an imperfect type. They thought, the philosophers of the mixed regimes, like Aristotle and Polybius, thought that there were monarchies, and when a monarchy was good, it was called a monarchy or an empire, when it was bad, it was called a tyranny or a dictatorship. Aristotle and Polybius thought that there were also regimes governed by a few people, and when they were good regimes, they were called aristocracies. Aristoi in Greek means good. When they were bad regimes, they were called oligarchies, i.e., the selfish rule of a few people for their own good and not for the common good. Then, Aristotle and Polybius also agreed that there were regimes that were democracies, and when they governed well, as the democracy of Athens did, they were called democracies, but Aristotle and Polybius, aware of the death of Socrates no doubt, realized that democracies could degenerate into mob rule. Mob rule was the bad form of government. Essentially, the ancient philosophers, who the English borrowed from in the period between 1688 and 1776, argued that there was government by the one, the few, and the many, and the reason the British thought they had a perfect mixed regime and constitution was because, in 1776, they had all three forms of government checking and balancing each other. They had one king, George III. That brought the advantages of oneness, strength, and foreign policy and with military and in suppressing domestic factions. They had an aristocratic element to their constitution in the form of the House of Lords, which still had real power in the 18th century and which also heard cases and was the highest court in the land, and then the British had a democratic element in their constitution in that landowners could elect members of the House of Commons. The British believed that their constitution was perfect because it was a constitution of the one king, the few House of Lords members, and the many represented in the constitution, and that all of these different estates of society balanced each other off, and the idea was, essentially, the idea that Lord Acton came up with in the 19th century, which is that power corrupts and absolute power corrupts absolutely, so better to divide power among a king, a House of Lords, and a House of Commons than to concentrate it in any one place. The British theorist, William Blackstone, came up with the idea that an Act of Parliament, passed by both Houses of Parliament and signed by the king, was a sovereign act of the British people, and down to the present day, Acts of Parliament are sovereigns acts of the British people that have the force of constitutional amendments in the United States. This explains why judicial review could not develop in the United Kingdom and why it did develop in the United States. An ordinary judge could not strike down a British Act of Parliament as violating the unwritten constitution because the king and the House of Lords and the House of Commons had the power to amend the unwritten British constitution, so Acts of Parliament were prima facie valid no matter what they said, and judicial review was not possible in the British context. Under the American Constitution and under the state constitutions created after 1776, where sovereignty rested in the people of the United States or in the people of a state, courts began in the states, prior to Marbury versus Madison, and then, at the federal level, in Marbury versus Madison, the courts essentially said, "The sovereign people have delegated us the judicial power to decide cases or controversies. We have to do that agreeably of the Constitution, and if the legislature or the President or the states exceed their powers under the Constitution, we, the courts, as independent agents of the sovereign people, can set aside the decision of the Congress or the President or of the states." The popular pre-sovereignty of the Preamble is tremendously important, not only because it rejects the compact of states' idea of the Articles of Confederation, but it also rejects the mixed regime of the British constitution and places sovereignty in we, the people of the United States, who can only act to amend the Constitution by 2/3 of both Houses of Congress and 3/4 of the states, and ordinary acts of Congress signed by the President are not acts of the sovereign people, so the Supreme Court or the lower federal courts or even the state courts can set them aside if they're unconstitutional. Another interesting difference between the American Constitution and the British constitutional tradition is that one is written and the other unwritten. Why is that? Why did the Founders want a written document although they had been English colonists under an unwritten constitution? One of the things that's really distinctive about the U.S. Constitution, which was written in 1787, and went into effect in 1789 is that it was the first national written constitution in human history. In that respect, it marked a major departure from the constitutional tradition of England, which had colonized the 13 original American colonies which became the 13 original states. England had, in 1776 and still has today, an unwritten constitution which consists of a series of conventions and traditions and some texts which are considered to be of constitutional significance, but not in the way that the U.S. Constitution is. The way that the framers of the U.S Constitution came up with the idea of written constitutionalism is that when the English settled the 13 original American colonies, they gave each colony a corporate charter issued by the King of England. That corporate charter assigned some powers to a colonial governor, who was appointed by the King, other powers to a colonial legislature. The lower house of which was elected by the people of the colonies, and other powers to judges who were appointed by the governor together in consultation with the King of England. Those colonial charters from 1607 when Jamestown was settled, until 1776 when the United States declared independence from the United Kingdom, those colonial charters were in effect prototype written constitutions for the colonies. So one of the first things the colonies did in 1776, after declaring independence, was that 11 of the 13 colonies between 1776 and 1787 wrote their own state constitutions. Those were the very first written constitutions ever. The Federal Constitution of 1787 which is in effect today, was written in part out of the experience the framers had in writing these first initial constitutions. Americans thought that having a written constitution was very important for a number of reasons. First, there had been confusion under the English Constitution as to exactly what rights citizens enjoyed. The Americans believed they enjoyed more rights as Englishmen in the 1760s and 1770s then King George the third was willing to admit. As it happens, the American colonists were right about that as a matter of English Constitutional history, but after their experience with King George the third, they wanted written bills of rights and written state constitutions so that there wouldn't be ambiguity going forward in the future about what was covered in a written constitution. The development of a written constitution is a huge step in human history. In part because it took the social contract theory of John Locke that government is a social contract that people enter into with one another to delegate powers to a government. It took John Locke's social contract theory and actually embodied it in national law. So the fact we have a written constitution and Britain has unwritten constitutional traditions really sets the United States apart. Not only from Britain, but also from Canada, which has a customary constitution and from some other common law countries that have customary constitutions. When the U.S. written Constitution was first proposed in 1787, every other country in the world other than the 13 American states was either an empire or a monarchy, or an aristocracy or a dictatorship. So the United States was absolutely unique from 1776 and 1787 on in being the world's first democracy and in having the world's first written constitution. That's a very distinctive part of our American tradition. The written U.S. Constitution is small enough so that you can all carry it around in your coat pockets if you want to, to consult it. It's actually only seven thousand words long and it has the distinction of being the oldest constitution in the world, the shortest constitution in the world and the first written constitution in the world. It has formed a model for every other country since 1787. Today, every country, almost every country except the United Kingdom has a written constitution. Since 1945, all constitutional democracies have had bills of rights and systems of traditional review to enforce their written constitutions. But in 1787 when this document was adopted, it was absolutely unique. The framers captured that with a phrase in Latin which they used to describe the constitution. They said it was a Novus Ordo Seclorum, meaning a new order of the ages. Many of the framers liked to sign their letters 1792 A.D. and in the year of the independence of the United States, the 16th. Thereby emphasizing the decisive break with Britain in the Declaration of Independence of 1776 and the decisiveness of the written constitution of 1787, which has been amended 27 times in some very important ways. Any closing thoughts on the United States Constitution? One of the important purposes of the Constitution that we should never lose sight of is that the final purpose it lists for creating the Constitution is to secure the blessings of liberty to ourselves and our posterity, and it is for that reason, as well as others, that the Constitution is ordained and established. That idea of securing the blessings of liberty was a sacred idea of the founding, present in the Declaration of Independence, present in the First Day Constitutions, and present in the Preamble. Abraham Lincoln, very importantly, picked up on that in the Gettysburg Address when he began the Gettysburg Address by saying, "Four score and seven years ago, our forefathers brought forth on this continent a new nation conceived in liberty and dedicated to the proposition that all men are created equal." Lincoln, by those words, recognized that the founders' idea of all men are born free and equal was a central, constitutional, animating principle and that the securing of the blessings of liberty was the core purpose of the Constitution or a core purpose of the Constitution, along with promoting the general welfare and providing for the common defense. Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!