The Founding Formula

REVIEW: 'Power and Liberty: Constitutionalism in the American Revolution'

August 29, 2021

We define things by what makes them unique. What sets the entity apart from the pack marks its essence. Take the toaster. Much like electric mixers, space heaters, and box fans, toasters plug into outlets. But when we think of toasters, we don't harp on the fact that they plug into outlets. We define toasters by what sets them apart from other appliances: They toast bread.

Yet many historians and intellectuals have willfully forgotten how to locate the essence of the founding in its unique qualities. They have recast America's revolution in liberal, democratic, constitutional self-government as a grotesque brew of tribalism, racism, and chattel slavery. Such gross moral failings were present at the creation, of course, as they were in all human history theretofore. Which is to say, they were not what made the founding unique.

With his book Power and Liberty: Constitutionalism in the American Revolution, Pulitzer Prize winner Gordon Wood reminds us of the many ways in which the founding era was unique—and, thus, what constitutes the era's historical essence.

Wood is a professional historian, not a polemicist. He's committed to being "as accurate as possible" and not turning history into "politics by other means." Objective history like Wood's reminds us of the realities of the world in which the founding generation operated, how they broke with those realities, and how they deserve to be remembered.

Wood traces the evolution of the founding generation's political and constitutional thought as the imperial crisis with Britain turned into a revolution and then a constitutional project.

Having beaten the French in the Seven Years' War and in need of funds to defend its new North American territories, Britain taxed the colonists, which in turn set in motion a rethinking of the relationship to the motherland on the part of Americans. Initially, Americans focused on the concept of representation. If they were to be taxed, only governmental entities in which they had "actual representation"—their provincial legislatures—would do. But soon the squabbles over representation morphed into debates over the concept of sovereignty itself. Wood expertly traces the colonists' growing rejection of parliamentary authority. "The debate had begun with the issue of representation and taxes," but as it shifted to the more fundamental question of where sovereignty lies, "the struggle to answer this question ultimately destroyed the empire."

With their revolution won, Americans broke from Britain and world history yet again as they penned written state constitutions for themselves. Although we were not the first to come up with written constitutions, Americans "did something new and different. They made written constitutions a practical and everyday part of governmental life. They showed the world how written constitutions could be made truly fundamental and distinguishable from ordinary legislation." These state constitutions—with their bicameral legislatures, single-person executives, and independent judiciaries—would serve as models for the 1787 federal Constitution.

Wood maintains that the "imbecility" of the Articles of Confederation, as well as elites' frustration at the chaotic and pro-debtor legislation that was passed by "middling men" in the states, spurred the creation of the Constitution. In debates at the Philadelphia convention and then in the state-ratifying conventions, the sovereignty question arose yet again: Wasn't the notion of two sovereigns (state and national) an absurdity?

Federalists, James Wilson especially, ushered in an ideological innovation to answer this vexing question posed by Anti-Federalists. Federalists contended that "the people retained ultimate sovereignty and doled out bits and pieces of their sovereign power to their different representatives and agents at both the state and national levels." This concept of popular sovereignty—that the people were the source of all power and thus sat atop the legislatures—further buttressed the concept of constitutionalism. There would have to be a supreme, "fundamental law," that bound legislators and was unalterable by normal statute. Thus, along with "the transformation of this written fundamental law into the kind of law that could be expounded and construed in the ordinary court system," popular sovereignty helped usher in the rise of robust judicial review.

Wood therefore unearths three major American innovations: popular sovereignty, written constitutionalism, and judicial review. To top it off, he adds that Americans demarcated the public and private spheres: Public offices would have to be earned, no longer passed down from fathers to sons.

Still, there were ways in which America was not unique—but, crucially, only up to a point. As Wood writes, "slavery … existed in a variety of cultures for thousands of years, including those of the ancient Greeks and Romans, the medieval Koreans, the Pacific Northwest Indians, and the pre-Columbian Aztecs." In the early colonial era, when white indentured servitude was quite common, Wood notes that slavery was just another rung on the social hierarchy ladder. Only with the Revolution and its talk of natural rights did many non-Quaker Americans grow troubled by slavery. "In fact," writes Wood, "the Revolution created the first antislavery movement in the history of the world. In 1775 the first antislavery convention known to humanity met in Philadelphia at the very time the Second Continental Congress was contemplating a break from Great Britain. The Revolution and antislavery were entwined and developed together." The Revolution was no friend to the ancient institution of slavery. It set slavery's demise in motion.

Power and Liberty reminds us that during the revolutionary era, great minds converged to break from much of history, and they forged a polity grounded in universal rights and common sense.

So much of it was so very new, so unique. Its essence was revolutionary, and good. Willfully forgetting that is ahistorical, illogical, and ungrateful.

Power and Liberty: Constitutionalism in the American Revolution
by Gordon S. Wood
Oxford University Press, 240 pp.,  $24.95

Thomas Koenig is a student at Harvard Law School and a contributing editor to American Purpose magazine.