Written Constitutions, Judicial Review, and the Limits of Constitutional Hope 

Editor’s Note: This essay is the second in a two-part series. (Here is Part I.)

In an age in which constitutional courts are routinely called upon to settle the most divisive questions of public life—from electoral disputes to bioethics to the boundaries of religious liberty—it is worth pausing to ask how this remarkable institution came into being, and what it can and cannot reasonably be asked to do. My previous essay traced how Greek philosophy, Roman law, Christian theology, and the medieval doctrine of paired jurisdictions together produced an enduring tradition of higher law and the rule of law. The remaining piece of the puzzle is how those traditions were translated into the visible institutions of modern constitutional government: written constitutions and the courts that enforce them. 

Written Constitutions 

The modern notion of adopting a written constitution that defines the institutions and powers of government has deep roots in the biblical account of the covenant between King David and the tribes of Israel, which served as a model for the later use of oaths, covenants, contracts, and constitutions as means of defining the responsibilities of rulers and ruled, especially in Reformed political theology. Another important source was the widespread medieval practice by which kings issued charters guaranteeing the rights of monasteries, abbeys, churches, hospitals, orphanages, universities, and towns. These included the famous Magna Carta of 1215 and Forest Charter of 1216, which, as John Witte has pointed out, became key “anchor texts for Anglo-American constitutionalism.” 

Revolutionary political events in seventeenth-century England brought these ideas and practices into sharp focus. Following their military success in the first two phases of the English Civil War, the parliamentary forces under the leadership of Oliver Cromwell deposed, tried, and executed King Charles I for breach of his oath of office. During this period, a series of constitutional manifestos were prepared under the title of An Agreement of the People by participants in Cromwell’s New Model Army. 

While these agreements never became law, an Instrument of Government was adopted as the written constitution of England during the rule of Cromwell, following the deposition and execution of Charles I in 1649. Around the same time, English colonists in North America had established political communities in which ideas of independent self-government were developing.  

Viewed from the perspective of British law, the constitutional foundations of these settlements derived from the authority of the Crown, but the practice of many of the colonies was to self-constitute themselves as a body politic through a solemn pact or covenant. One of the most famous was the Mayflower Compact of 1620, subscribed by the first inhabitants of the colony established at Plymouth in what is now the Commonwealth of Massachusetts. The compact was in the nature of a sworn agreement, made before God, by which the colonists did “covenant and combine” themselves into a “civil body politic”. Another example was the original constitution of Connecticut, which was based on a federating covenant between the people of three separate towns. 

Drawing inspiration from these kinds of documents, the highly influential English philosopher and publicist John Locke gave elegant expression in his Second Treatise of Government to the underlying idea of a “social contract,” by which the people constitute themselves into a political society and a “contract of government” through which they establish a government that is accountable to them. But the basic idea of a founding covenant was much older than Locke. Johannes Althusius, a Reformed jurist and early theorist of a kind of “social federalism”, had more than half a century earlier offered an account of society in which all groups—families and villages, towns and cities, guilds and religious associations, provinces and commonwealths—are formed and joined together by a series of federative compacts and agreements that together constitute a kind of lex fundamentalis that binds rulers to their duties of office. 

Judicial Review 

The institution of judicial review is today one of the primary mechanisms by which constitutional limitations on the powers of government are practically enforced. It can be exercised in relation to executive action and legislative enactments, and it can be exercised by specialist constitutional courts or generally by all courts of competent jurisdiction. It can also be implemented in relatively “weak” or “strong” forms, particularly in relation to the protection of human rights. In all of these manifestations, judicial review has a complex and controversial relationship with another important contemporary constitutional doctrine: the separation of powers.  

Writing in 1748, the French political thinker Baron de Montesquieu famously claims in his The Spirit of Laws that liberty is most effectively protected where legislative, executive, and judicial powers of government are distributed among three distinct and separate institutions. Writing about two decades later, Blackstone similarly observed in his Commentaries on the Laws of England that the English constitution established a “balance” between the Crown and the two houses of Parliament so that each performed a “mutual check” upon the other. Influenced by these ideas, one of the leading architects of the United States Constitution, James Madison, advocated the separation of powers in the following terms: 

It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. 

Madison’s colleague Alexander Hamilton argued that the judiciary would be the “least dangerous” of the three branches of government because it would have “neither force nor will, but merely judgment,” but he also maintained that the courts would have the weighty responsibility to “declare all acts contrary to the manifest tenor of the Constitution void.” 

Hamilton’s reasoning was repeated about fifteen years later by Chief Justice John Marshall in the first United States Supreme Court decision to exercise the power of judicial review. The argument was that judicial review is the result of an application of two principles: first, that it is the particular function of courts to determine and apply the law, and second, that the constitution is a superior or paramount law binding on the executive, the legislature, and the courts alike.  

Judicial review is controversial, however, from the point of view of democratic theory, principally because it empowers unelected judges to overrule laws enacted by democratically accountable legislatures. One line of argument is that judicial review is democratically legitimate because it is the people themselves who establish the constitution and authorize the courts to enforce it. A second argument is that judicial review is necessary to protect the rights of minorities from interference by oppressive majorities. Opponents of judicial review respond that constitutional language is often vague, and that judges inevitably impose their own moral and political views when interpreting and applying constitutional restrictions on power. Still others argue that judicial review should be limited to ensuring that the democratic system is operating fairly. Controversies about constitutionalism and constitutional law thus often turn into debates over legal language and its interpretation. Interestingly, these debates are shaped by differences in approaches to the interpretation of the Bible and church tradition adopted by Catholics and Protestants. 

One of the paradoxes of contemporary constitutionalism is that, while almost every independent nation-state in the world today has a written constitution, the average constitution lasts only nineteen years, and many countries have what scholars have called “sham,” “façade,” or “nominal” constitutions, which neither constrain state power nor accurately describe the practical operation of the government. As with human rights, it is possible that we can entertain utopian hopes for a kind of constitutionalism that seeks to harness “the power of narrative, symbol, ritual and myth” in order to reshape not only political reality but also social life and human nature. Jean-Jacques Rousseau began his Du contrat social with the promise that he would reason with “men as they are and laws as they can be,” but his scheme was utterly utopian and “unwittingly set the stage for the totalitarian states of the twentieth century.” Several recent titles have explored the way in which constitutions can function as a kind of civil religion within a society and have analyzed them in terms of theological categories such as faith, redemption, scripture, and tradition. This approach reflects something of a theological turn in constitutional scholarship, not altogether out of place perhaps in the postmodern climate of our age.

H. Jefferson Powell, in The Moral Tradition of American Constitutionalism: A Theological Interpretation, traces the moral tradition of American constitutionalism to four sources: Enlightenment individualist moral anthropology, Protestant civic republicanism, Anglo-American common law reasoning, and the practical political life of the colonies before and under the Articles of Confederation. He argues that Enlightenment moral individualism has progressively crowded out the other three, and that contemporary constitutional law has thereby become a tradition of rational inquiry centered almost entirely on the practice of adjudication. Powell’s diagnosis is unflinching: there is, he contends, no such thing as a Christian approach to constitutionalism, if by that one means a Christian rationale for the wholesale transfer of moral and political decision-making from elected officials to constitutional courts. The warning is sharper than the gentle ironies of those who have likened the Constitution to scripture and the Justices to its priesthood. It is that Christianity, properly understood, refuses to baptize any mere constitutional arrangement as the redeemed political order.

In this context, it may be beneficial to observe that Christianity offers not only a constructive contribution to the development of constitutional law but also a salutary warning against constitutional perfectionism and the pride of reason. The warning is twofold. The first part is anthropological. Madison’s Federalist No. 51—“if men were angels, no government would be necessary”—is a recognizably Augustinian sentiment, and it stands at some distance from the more optimistic strain of Enlightenment thinking that imagined a constitution sufficiently well-designed to perfect human conduct. Christianity has always insisted that no document, however carefully drafted, can substitute for the moral formation of the persons who live under it; and that no institution of government, however cleverly balanced, can be expected to do the work of virtue. 

The second part of the warning is doxological. When a constitution becomes the object of ultimate hope—when it is asked to deliver redemption rather than restraint—it has been miscast. The Augustinian distinction between the earthly city and the heavenly city, with which the first installment of this two-part series began, is precisely the distinction that constitutional perfectionism collapses. The earthly city, even when it is governed by a written constitution and an independent judiciary, remains the earthly city. Its function is to keep the peace, restrain wrongdoing, and provide a framework within which men and women may live together in justice. Its function is not to redeem them. To expect a constitution to do more is to mistake the office of a constitution and the moral condition of those who must live under it. 

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