The United States Constitution gets a lot of credit for being the first of its kind. The progenitor of democratic constitution making. The spark that started a global fire. Is that the long and short of it, or is there more to the story?
Linda Colley, author of The Gun, The Ship and the Pen, weaves a longer, more complex narrative in this episode. We explore why constitutions (governmental limits, citizens rights and all) became necessary and who put pen to paper before 1787.
Transcript
US vs: Constitutions
Akhil Reed Amar: Let's start with the words. We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility.
Hannah McCarthy: This is Professor Akhil Reed Amar in a video lecture about America's constitution.
Akhil Reed Amar: ... of liberty to ourselves and our posterity. Do ordain and establish this Constitution for the United States of America. One sentence and this, [00:00:30] my friends. This one simple sentence changes everything.
Hannah McCarthy: Amar is a professor at Yale University. Obviously a person far better informed than myself. I'm not here to contest him, but I do want to ask the question. Is this where the story starts? So [00:01:00] Nick, when you think about the beginning of constitutions now, I'm talking about the relatively modern document that lays out the rules of how a government operates, who has power over what, and the rights of individuals. What comes to mind?
Nick Capodice: We do. The United States.
Hannah McCarthy: Right. That's what I thought you would say. Why?
Nick Capodice: Because we were the first sort of constitutionally. This is where it all started. It's [00:01:30] a New World Order 1787. People getting rights, government getting limits. I mean, I know there are hundreds of constitutions worldwide right now, and I know that there were documents like Magna Carta before the U.S. Constitution. But the type of document we're talking about showed up here first.
Hannah McCarthy: What if I told you that's not quite how it went?
Linda Colley: Written constitutions of the sort that we take for granted. Now, codified [00:02:00] constitutions begin to get going very slowly in the 17th century, but they start getting more momentum both in Europe and in parts of North America from about 1750.
Hannah McCarthy: I'm Hannah McCarthy.
Nick Capodice: And I'm Nick Capodice.
Hannah McCarthy: And this is Civics 101. And today, as on nearly every episode of Civics 101, you're going to bump into some American myths, myths [00:02:30] such as, you know, we had the first modern constitution and it lit the path for change everywhere. Myths about what our framers thought and wanted, beloved American myths that you might not want dispelled.
Linda Colley: I got quite a lot of angry phone calls, and indeed one said You should be shot.
Hannah McCarthy: Here we go. This is Linda Colley. She wrote a book called The Gun, [00:03:00] The Ship and the Pen.
Linda Colley: I started this book partly, as I say in the introduction, because I'm an outsider, as my accent will immediately announce I'm a Brit in origin. The UK, quite wrongly to my mind, does not have a written constitution still. And when I came to the United States in the early 1980s, here I was suddenly living [00:03:30] in a polity which had a written constitution and which celebrated it to an enormous degree.
Nick Capodice: The UK does not have a written constitution. I just can't believe I didn't know that until now. Speaking of which, how did they skip that step?
Hannah McCarthy: Well, they have kind of like an unwritten constitution. It's a combination of acts of parliament and court judgments. Now, the important distinction is that the UK has no single codified document that outlines the structure of government [00:04:00] and how it relates to its citizens and territory like the US Constitution. So Linda Colley, a woman without a constitution of her own, arrives in the United States.
Linda Colley: So I had to start learning about written constitutions, but I increasingly felt, well, it can't just be an American story. What about the bigger global story? And the more I looked, the more constitutions I found, [00:04:30] and the more I realized it was just not a single unitary story where it began in the United States. The United States became the beacon of liberty, and it spread across the world, as did constitutions and liberty triumphs across the globe.
Nick Capodice: Just to clarify, Hannah, is Linda saying that there were other codified democratic constitutions before [00:05:00] ours?
Linda Colley: If you look at the constitutions that are being created before the American ones, they're a variety. Corsica, a tiny Mediterranean island, acquires a constitution in 1755, which is very special, very democratic. All men, not women, but men above the age of 25, could vote [00:05:30] and hold political office. The problem is that this constitution doesn't last because Corsica is invaded by the French in the late 1760s. Then you've got another early constitution that in Sweden in 1772. Quite an impressive document, but it's made by a king and a very ambitious king who actually wants to increase his [00:06:00] own power. So constitutions are increasing in number. They're being talked about much more. But they are a mixed bag, even at this very early stage.
Hannah McCarthy: So think about the name of Linda's book, The Gun, the Ship and the Pen. What is the priority in that list?
Nick Capodice: I'm going to go ahead with guns.
Hannah McCarthy: Yeah, the gun and then the ship. And only then the pen. Warfare. [00:06:30] Wide scale warfare, to be exact, is what we're going for. So let's create the paperwork to support it.
Linda Colley: War by the mid-18th century is becoming much larger. It's becoming more expensive, particularly if you want to build up a navy as well as an army.
Hannah McCarthy: So large scale empire-building war across the world is really starting to become a thing.
Linda Colley: All rulers face the [00:07:00] challenge, particularly if they are ambitious, of how do they mobilize money, how do they mobilize war loads, and how do they mobilize their people to fight if need be? And that really focuses official minds, I think, much more on, okay, perhaps we need a kind of contract and it's worth thinking of these kind [00:07:30] of codified constitutions as a kind of contract. Here are your rights. Here are your privileges. In return, we will want your your fiscal contributions. And in the event of war, we may want your manpower to.
Nick Capodice: I've never thought of a constitution as like a contract, a document that says I'm going to tax and conscript you, essentially get you to pay for war with your money and your body, your participation. [00:08:00] But if I as a ruler don't give you something in return, there could be trouble.
Hannah McCarthy: Not too terribly far from what the US ended up needing to do. Now. It was different for us, to be sure, but our Constitution is a relative. It's a cousin of these constitutions. Pre-1787 constitutions had another purpose. You might recognize national unity and recognition on the world stage. Take the work of a [00:08:30] certain ruler on the other side of the globe.
Linda Colley: It was a very clever woman. She read avidly. She knew lots of enlightenment figures, but she also had her own fears in the 1760s because she was a usurp, she basically got her husband wiped out.
Nick Capodice: Are we talking about Catherine the Great here?
Hannah McCarthy: We are indeed. Catherine wasn't even born a Russian, and she orchestrated a successful coup to [00:09:00] take the throne from her husband and rule independently. He also, rather conveniently shortly thereafter, died of an attack of hemorrhoids. So that's an impressive feat, but it's also a pretty audacious and potentially reckless one, which might also remind you of our American founding. So what do you do next to make sure your citizens and the rest of the world accept you as a ruler?
Linda Colley: For her, this legal [00:09:30] document the Nakaz has is partly designed to keep Russia united, but to make it more modern and also to stabilize her own position.
Hannah McCarthy: The nakaz, n-a-k-a-z. Catherine believed that if she strengthened law and government, she would strengthen her monarchy. And to be sure, this is definitely a document designed to protect the monarchy. Still, [00:10:00] she spent two years writing a document that also had a lot to say about natural liberty and all citizens being equally protected under the law.
Nick Capodice: All right. Those are words I recognized.
Hannah McCarthy: You sure do, Nick, because James Madison and many other framers ended up using some of the same source material that Catherine the Great did, a.k.a the Baron de Montesquieu. They just did it 20 years after her. This is French Enlightenment stuff. So Catherine finally finishes her Nakaz, which, by the way, [00:10:30] it challenges the death penalty and torture, which I found pretty interesting.
Linda Colley: And in order to get this vast new legal code ratified, she organizes her own convention, which is elected from around the Russian empire. It's a much bigger convention than what you get in Philadelphia. In some ways, it's a much more Democratic convention.
Nick Capodice: So if Russia [00:11:00] had a ratifying convention and a constitution, albeit a constitution designed in part to empower a monarchy, why am I just hearing about that now?
Linda Colley: The Nakaz has never becomes put into Russian law because Catherine is distracted by fighting more wars and so forth.
Hannah McCarthy: And so now we get to the thing about the US Constitution that is truly the first of its kind major, major [00:11:30] staying power.
Nick Capodice: As in the framers wrote it down and 200 plus years later it's still around looking with some major exceptions, pretty much the same.
Hannah McCarthy: Yeah. So do we have the oldest active single text surviving constitution in the world? Well, some would say the 1600 San Marino Constitution has been used in part for much longer.
Nick Capodice: Come on. Like San Marino is 60 kilometers wide.
Hannah McCarthy: I think it is also worth pointing out that the Iroquois [00:12:00] Confederacy is constitution was commemorated on a wampum belt, and that was in the 12th century. That confederacy of six nations is often considered one of the world's oldest participatory democracies, by the way. But a lot of historians would say, yes, the United States has the oldest surviving written Constitution. Still, I do want to look at the way that our Constitution had plenty of precedent out there in the world.
Linda Colley: If we want to look at the US Constitution [00:12:30] as drafted in Philadelphia in 1787, I mean, we know that many of the founding fathers were certainly not Democrats. One of their ideas was to sew this up fast, to get the Constitution drafted, to get it ratified very quickly by local elite groups. And one reason they wanted that done was the [00:13:00] feeling, well, things may get out of control. We will have all sorts of demands from below.
Hannah McCarthy: Demands from below. Meaning you've got all of these states doing their. One thing creating their own rules, including things that empower and things that disempower.
Linda Colley: And of course, that increasingly is happening by the early 19th century as the state constitutions become more and more wide ranging about what [00:13:30] they allow.
Hannah McCarthy: We did, by the way, have a federal governing document at this time, the Articles of Confederation. The articles were just not working out too terribly well. So you've got these individual states establishing what they believe their government ought to be. And that is concerning to the powers that be, because that threatens the bigger sovereign state.
Nick Capodice: All right. This is where I'm getting reminded of the kind of go to reason for having a constitution in the first place. Right. You mentioned [00:14:00] earlier that Catherine the Great partially wanted a constitution to reinforce the legitimacy of Russia and her monarchy. And likewise, the framers needed a document that reinforced the legitimacy of America and the power of the federal government.
Hannah McCarthy: Yeah, this idea of "this is our land and these are its rules." That is Constitution 101. Of course, I will say the US is tricky because it is also a federation. For reference, you can listen back to our episode on federalism, [00:14:30] but you do still need functioning rules at the top. That is a well-established principle of constitutionalism. So that's one way in which the US is following constitution precedents. Another?
Linda Colley: War is an element here, fear of war. The cost of war. The men of Philadelphia have many of them high ideals, but they are also politicians. They know pressures [00:15:00] and they have their own fears. Hamilton writes about this, about how worried he is about American security in 1787. What are they afraid of? Well, it's partly, as I say, the fear that democracy might get out of control, but much more. It's the fear that they've got rid of the British, but they're still up there in Canada.
Hannah McCarthy: If [00:15:30] the US faces war again, does it have a united front that will take up arms to defend it? The Revolutionary War was won in part with and many historians say, because of help from the French and Spanish.
Nick Capodice: Right. What if they're not exactly interested in helping a second time around?
Hannah McCarthy: Worse than that, what if not only Britain up in Canada, but Spain or France? Look at this new nation of desperate states and think [00:16:00] they're sitting ducks. If the people of the states of America are not bound together as one.
Nick Capodice: Yeah. Like Franklin's Snake cartoon, you know, join or die. Yeah. United we stand, divided we fall.
Hannah McCarthy: So rules from above to establish the US government as being in charge. That's one principle providing for a war ready nation. That's another. Both constitutional motivations that had long been at play in the world. Another constitutional precedent. Fear of secession and revolution. [00:16:30]
Linda Colley: That particularly concerned that the people who are flocking to the Western frontier as more as more of them are doing, they may say, and some of them are thinking this, you know, why don't we create our own country? Why should we be bound by the United States? Okay, we all want to throw out the British, but that's been done now. So let's think about, you know, creating a new our own [00:17:00] new nation, which may not be the United States.
Hannah McCarthy: Remember, though the US is no longer a nation of British colonies. It is still very much a nation of colonists spurred by the belief that they can move into already occupied lands, take them and claim sovereignty. What is stopping those colonists spirits from breaking off from the United States while they're at it? And then, of course, the framers faced that age old head scratcher how to get money out of people so your country stays alive. [00:17:30]
Linda Colley: They're worried about getting a more effective government because they're desperate for money. They need foreign loans because the war's been so expensive, they can't get foreign loans at a good rate. If the US seems turbulent, not well governed. So they've got all these worries and fears of potential [00:18:00] failure and division, and so that's driving them as well as ideals and aspirations and optimism.
Nick Capodice: All right. So this all seems to boil down to that we needed a way to get money and we needed a way to make ourselves look good on the global stage. Both things that constitutions had been doing for a while at this point. Right.
Hannah McCarthy: Right. And you know, the United States first attempt at a Constitution, [00:18:30] the Articles of Confederation, it didn't have a functioning tax policy which led to a debt crisis, which led to states cracking down on tax collecting, which led to some light armed insurrection, a.k.a. Shay's Rebellion, which led for some to the fear that other countries would look at us as a massive failure.
Nick Capodice: And so the answer was, come up with something better, write it in secret, make people think you're only amending [00:19:00] the existing constitution and then widely distribute a brand new document and just try to convince everyone it's good.
Hannah McCarthy: Yeah, it's basically a PR campaign and that wasn't exactly a new idea either. Catherine the Great, she distributed her Nakaz in different languages in the 1760s. The King of Sweden did the same thing in 1772. It's just that the United States did it to much greater effect, thanks in part to the printing press and newspapers.
Linda Colley: So Americans [00:19:30] after 1787 are always sending out translations of the Constitution, partly because there's a market for them, but also because initially this is a way of saying, look, the United States has arrived. We are a working united polity and we now have an efficient central government.
Hannah McCarthy: You send out this document and tell the world [00:20:00] that you're a nation, that they will want to trade with your a nation that they will want to lend money to. You are most certainly not a nation that they will want to invade because you're united. And then other countries not only get the message, they start copying it. Hey, I like that part from the Swedish king and Catherine the Great was totally right about torture.
Linda Colley: But then the men of Philadelphia, they were absolutely right there. And you can you can stitch your own constitution [00:20:30] together. And we know that. Constitution makers borrow because these ideas, written ideas, can move with print. They can be translated. They can cross borders. And that's what constitutions do.
Hannah McCarthy: So, look, this is not an episode about how our Constitution came to be. It's an episode asking why we need constitutions, why they started to come to be in the first [00:21:00] place. The United States was not the first nation to write up a document of rules that help win wars, help to get money, help to have global credibility. But our method has been held up as an example, and that might help explain how the myth of our Constitution came to be. We did something that other nations had been doing for a while, and the way we did it inspired others. Constitutions after 1787 are [00:21:30] coming up after the break.
Nick Capodice: But first, if you want to read about all those other constitutions and Hannah assures me there are quite a few. You should subscribe to our newsletter. Extra Credit. It's Free comes out every two weeks. You're going to love it. Subscribe at our website, civics101podcast.org. All right. Are we back?
Hannah McCarthy: We're back. You're listening to Civics 101. And we were just talking about the fact that the United States was neither the first Constitution [00:22:00] nor, of course, the last Norway, the Netherlands, Hawaii, Ireland, Haiti. And for some of these nations, establishing a constitution was as much about keeping colonizers out as it was about creating a strong internal government.
Linda Colley: As Hawaii increasingly says after 1840. Look, we have our own rules. We have a monarch, but he's now a constitutional [00:22:30] monarch. We have this system. We are part of the world of states, modern states. Therefore, we are not fit territory to be colonized. We have our own identity, our own constitution, respected and go away. Other small powers do this as well. Haiti, when it establishes independence from French issues, [00:23:00] a succession of very interesting constitutions banning slavery, establishing a black government. Tunisia does the same.
Hannah McCarthy: Now, of course, having a constitution doesn't always work right. It doesn't always stick, especially in the face of relentless warring colonizers who also want your land or even internal conflict. And I asked Linda, okay, so what is it that makes a Constitution [00:23:30] successful or not?
Linda Colley: We should be careful about talking about failed constitutions because it's it's often more complicated. South America is a case in point for a long time because South American constitutions after independence in the 18 tens and 1820s South America, new nations run through lots and lots of constitutions. [00:24:00] And for a while, historians and quite often Americans, I have to say, said that, you know, well, the USA could do it. Why can't these South Americans get themselves sorted out? Well, there's various reasons for that. But as a result of having so many constitutions, actually some South American constitutions became very Democratic [00:24:30] by 1850 because they had to keep amending that constitutions and issuing new ones.
Nick Capodice: Okay. So asking why a constitution doesn't stick might be less important than asking what happens when a nation tries to get one to stick and then everyone just goes back to the drawing board? Because those amendments, those reflections of a changed nation, those can be a good thing.
Hannah McCarthy: To that point, Lynda makes the argument that perhaps it's a problem that the US Constitution [00:25:00] is so difficult to amend, and that is the reason that someone said she should be shot. And I just want to say, coming at other nations constitutions, from the perspective of the United States Constitution as the oldest and the stickiest. The subtext of that, I think a lot of the time being, we started democracy and we did it the best. That stops us from seeing what constitutionalism has done elsewhere in the world sometimes what it's done better in the world.
Linda Colley: Places [00:25:30] like Argentina had a far more capacious electorate in terms certainly of race and ethnicity than the United States had. So their constitutions may not last long, but sometimes they are very democratic indeed.
Nick Capodice: Well, you know, I don't know if it's ever occurred to me before, but did Linda say [00:26:00] anything about how other nations see our Constitution? If people in the United States, big surprise, tend to think they're the oldest and the best, what do people in other constitutional governments think?
Linda Colley: Well, partly because constitutions have generally been written about in national terms and often in patriotic terms. And it's not just the USA. I mean, you know, France [00:26:30] will tell you, well, you don't forget the American Constitution. It really isn't until after the French Revolution that constitutions start worrying about social reform and things like that, you know, and reforming the law and so forth. So there's a lot of national conceit involved in many accounts of constitutions.
Nick Capodice: In other words, it isn't unique to see your constitution through patriotism-colored [00:27:00] glasses.
Hannah McCarthy: The importance of not being unique, Nick, actually makes me think back to something Linda said at the beginning of this episode. What is the point of putting the US Constitution in context? The point to me is looking at our country and what it has done and is doing and recognizing that we didn't spring like Athena out of Zeus's head, fully formed and ready for war. We did not come from pure, divine inspiration. There are [00:27:30] things about our Constitution that are groundbreaking and inspiring, but we are members of a global history just like everyone else's. And sometimes I think it's helpful to take yourself down a peg and look at the bigger picture.
Linda Colley: The United States became the beacon of liberty, and it spread across the world, as did constitutions and liberty triumphs across the globe. One has to have a rather rosy view of the world at present to think [00:28:00] that given some of the things that are happening in the world today. So I wanted to tell a more nuanced story while of course, I mean, the US Constitution is a phenomenal achievement, but it's not unique. It isn't the beginning of the story. So I wanted to get these ideas across. Some people like them. Some people find it hard to [00:28:30] take. But that's the nature of writing new history.
Hannah McCarthy: That does it for this episode. But there is so much more to learn about the many constitutions of the world and how they measure up to our own and vice versa. There's a very cool website constituteproject.org that lets you read and compare the world's constitutions, and I highly recommend it whether you're drafting your own constitution [00:29:00] or not. This episode was produced by me, Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Our staff includes Jacqui Fulton. Rebecca Lavoie is our executive producer. Music In this episode by Xylo-Zico, Nuel Thiel Records, Timothy Lewis, John Runefelt, Cody High and Tigran Viken. You can find this in every episode of Civics 101 at our website, civics101podcast.org. Civics 101 is a production of NHPR, New Hampshire Public Radio.
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