OTHER RELATED “CONSTITUTIONAL” TERMS
By analyzing language one can garner a good deal of what the motivations of people are. And that goes for the foundational documents early settlers used to organize themselves politically. Reviewing those documents not only informs one of the structural and procedural elements of those early governments, they also contained the underlying values and beliefs of those settlers and, in their way, give one the initial political biases they brought to the task of their self-governance.
In turn, they betray what these people anticipated their politics would be like or what possibilities they could, as polities, pursue. This was no small matter if one considers the social and physical challenges these people faced. They were embarking on establishing a society in a raw natural environment. How they fashioned their collective decisions would play no small role in how successful they would be.
Donald S. Lutz[1] presents and reviews many of these early documents and prefaces the effort with a review of the terms that repeatedly appear in those documents. The last posting shared and described a set of those terms. That posting emphasized the variance those documents expressed between the specific provisions contracts contain and the more emotive, descriptive, and value laden content of compacts and covenants.
That posting ends with the hopeful role that “organic acts” can provide. They are an “after-the-fact” sort of addition to a compact and a way to tailor general compact-al concerns and resulting language to the demands of everyday life and the need to establish reliable law. Lutz introduces this concept by writing,
An “organic act” is one that codifies and celebrates an agreement [such as an initial compact] or set of agreements made through the years by a community. In this way, a “common law” comprising legislative and judicial decisions made over a number of years can be codified, simplified, and celebrated in dramatic form, thereby also renewing the consent-based oath upon which obligation to the community rests. The early state constitutions adopted in 1776 could be viewed as organic acts as well as compacts as they usually summarized and codified what the colonists of each state had [by the time of independence] evolved over the previous 150 years.[2]
What this writer takes from this description is that in a democratic-republican modeled arrangement there is always room for change and the actors never feel they are beyond being questioned or amended in their efforts. Even the best of plans can be improved upon or abandoned if reality indicates they should be. Yes, when it comes to “constitutional” issues, the change should have more hurdles to overcome, but its possibility is never beyond consideration.
And in terms of contracts and their shortcomings, organic acts do not have reciprocal provisions – they are not transactional instruments – since they reflect communal commitments in the governance of a people. They, therefore, can be considered extensions or “improvements” of original efforts.
This above description introduced another term. That is “agreement.” Here, the use of this term falls mostly as one understands the term – an arrangement between or among parties. Covenants and compacts are agreements. But of importance to the federalist mind is that agreements imply or spell out a sense of coordination, collaboration, and cooperation. And, of importance, is the connoted or implied element of free-willed consensus or, at least, acceptance.
This last bit of language should be remembered when a prominent religious or otherwise moral authority attempts to impose moral views on a population that does not totally share in its views or beliefs. Here, the track record of Americans is not so consistent with this requisite. There have been extended periods in their history when not only religiously based prohibitions have been imposed, but also its legitimacy has not even been questioned.
Religion or other moral systems can inform a federated body, but it cannot legalistically impose its dictums on a federated arrangement like that of the US without providing a secular justification for such imposition. One readily thinks of attempts to do so when one considers any plans to overturn the Roe v. Wade decision in its overturning of state laws banning abortions.
And another quality of such accords is that they encompass more than what a contract entails in terms of its generality. To remind the reader, contracts are specific in their elements or attributes, they denote reciprocal expectations between or among the parties, and they usually have a specified time frame. Agreements can have such specification, but not as a definitional requisite.
Another highlighted term is “charter.” This term, to this writer, offers a bit of confusion. While the thrust of these documents reflect volition on the part of settlers and resulting “citizenry,” charters are issued by high authority – usually a monarch or some business entity which in the mercantile age were, in turn, chartered by the Crown. Probably the most famous charter was the Magna Carta.
Generally, charters were issued to grant permission to commit some act(s) if the actor(s) meet certain provisions – earlier in this review of these documents and history, the Puritans acquired a charter to establish the Plymouth settlement claiming it to be a proposed commercial enterprise. This was by all accounts stretching the truth, but it worked not only for the Pilgrims of 1620, but for subsequent Puritan groups that made the trip over the Atlantic.
To give the reader a range of purposes for these charters, Lutz offers the following listing of goals for which they were issued: grant pardon, incorporate boroughs, universities, companies, and other corporations. They could also convey property from one entity to another. In general, charters took on a more contractual form by highlighting fairly specific anticipated results from their issuances.
The last term this review will describe is “constitution.” Derived from the term, “constituent,” the concern here relates to what elements or characteristics need to be present to make something what it is. For example, a constituent element of a novel is words. They, therefore, communicate the act or acts establishing, making, decreeing, or ordaining something by those legitimately considered in authority to do so.
So, constitutions have two attributes considered essential in their meaning – they are legitimately issued by appropriate authority and they denote the resulting structure with implied or denoted related processes of some created entity. Technically, the US Constitution contains more than its “constitutional” elements. For example, the Preamble is not part of its constitution (with small case “c”), but the document describing the Presidency is.
For the purposes here, that will suffice in terms of the terms this writer feels are important for the reader to consider when reflecting on the compact-al qualities the US Constitution has. Other terms that Lutz reviews include “combination,” “frame,” “fundamentals,” “ordinance,” and “patent.” The interested reader can acquire a copy of Lutz’s edited book for the respective definitional notes he shares.
This blog with the next posting will pick up with the ongoing story line of how the US Constitution came about. What one needs to keep in mind, the emphasis of this review is focused on espoused values of these early Americans with references to events as they relate to those values.
It will become necessary to look beyond those values to actual behaviors, but the reader should keep in mind that this writer does not believe such values equate to actual behavior patterns. So, for example, while one can ascribe lofty beliefs about freedom and equality and justice to the founding generation, one can read of very self-centered behaviors being exhibited by those very people.[3]
[1] Donald S. Lutz, “Introductory Essay,” Colonial Origins of the American Constitution: A Documentary History, edited by Donald S. Lutz (Indianapolis, IN: Liberty Fund, 1998).
[2] Ibid., xxxi.
[3] For example, see Ray Raphael, A People’s History of the American Revolution: How Common People Shaped the Fight for Independence (New York, NY: Perennial, 2002).