Bilder on Macaulay's "Free Constitution"

Mary Sarah Bilder, Boston College Law School, has published The Real Genius of the Constitution: The Free Constitution, which is forthcoming in the Yale Journal of Law and the Humanities:

Catharine Macaulay (wiki)

“To virtually all originalists, the Constitution’s defining feature is that it is a written text.” So points out historian Jonathan Gienapp in his thoughtful analysis of originalist arguments. Indeed, writtenness has become a, if not the, defining feature of the Constitution in fields beyond originalism. This perception stems from a historical account of the transformation of constitution in which writtenness was casually highlighted. But this account missed the critical transformation: a free constitution arose in place of the centuries old monarchical constitution.

Some years ago while reading the first volume of eighteenth-century historian Catharine Macaulay’s History of England, I noticed her repeated use of constitution. The appearance of the word was not surprising: Robert Acherly’s The Britannic Constitution: or the Fundamental Form of Government in Britain (reprinted 1759), Bolingbroke’s A Dissertation upon Parties (reprinted 1754), and David Hume’s History of the Stuarts (1754) were awash with the word. But Macaulay’s constitution was different. Sometimes she used it in conventional ways to refer to the body or existing political arrangements or an ancient Saxon establishment. But more often constitution was the standard which the Stuart monarchies violated. Its legitimacy lay in the people–not in an ancient constitution or Glorious Revolution settlement. It emphasized representation. It did not require a king or house of lords. It was, to use Macaulay’s term, democratical.

This constitution was the free constitution. Macaulay used that term, and I adopt it for this new conception of constitution that arose in the aftermath of George III’s accession. Macaulay’s popular four-volume History (1763-1769) was an influential early expositor. Between 1764 and 1768, James Otis and Samuel Adams developed a corollary contribution appearing in public letters, published as True Sentiments of America (1768). Writers and political actors on both sides of the Atlantic came to believe in the attainability of the free constitution. The revolutionary and 1787 constitutional instruments were efforts to work out the practical, structural, and conceptual problems of the free constitution, and writtenness the continuation of a familiar technology. The free constitution is the real genius of the Constitution. 

--Dan Ernst