Principle 18: A Written Constitution vs. An Unwritten Common Law

This Principle, written by W. Cleon Skousen in his The 5000 Year Leap: A Miracle that Changed the World ( pp. 217- 221) explores how the English people gradually came upon the realization that entrusting one’s rights to tradition was insufficient, especially in the wake of the Norman Conquest and in the rise of the notion of the Divine Right of Kings ( Skousen, W. Cleon. ” The 5000 Year Leap,” pp. 217-18).

The Anglo- Norman nobility, of course, was the first group to directly demand certain protections and concessions from their King John, in 1215. Under some certain duress, King John signed into law the Magna Carta and ” in that same century, the ‘ Model Parliament’ came into being, which compelled the King to acknowledge the principle of no taxation withut representation” ( p.218). In truth, these were some very important concessions that the later Colonial Americans built on as they took it into their heads to make sure that their rights were detailed and guaranteed in writing, beginning with the Mayflower Compact, written and ratified in 1620 and continuing on through the Fundamental Orders of Connecticut in 1639 ( p.218).

The Mayflower Compact was a conventional British document that acknowledged their reigning King James I as their proper Sovereign, but then went to declare that they would form their own political body, pass their own laws and work for the betterment of their colony and the ” advancement of the Christian faith” ( http://mayflowerhistory.com/mayflower-compact). It was an acknowledgement that these people were in a new place and they would fashion their own laws as their circumstances dictated. Their primary interest was centered around their own colony and not the government in Westminster.

The Fundamental Orders of Connecticut, written in 1639 ” had none of the conventional references to a ‘ dread Sovereign,’ or a ‘ gracious King,’ nor the slightest allusion to the British or any other government outside of Connecticut itself… The government of the United States today is in lineal descent more nearly related to that of Connecticut than to that of any of the other thirteen colonies” ( p. 219). This was actually the first written constitution that established an independent government and from which the freedoms we enjoy as Americans today were derived ( p. 219).

When we as Americans tried to follow the British example of reliance on tradition and some loosely- connected written legal codes to establish our own rights, the British not only dismissed us, but their parliament ( and King) regarded our protests as treason and they acted accordingly. Our Founders were doubtlessly advancing their own self- interests, but that finally translated into a code, a Bill of Rights that was amended to our Constitution in 1791 that applies to all citizens, regardless of social status ( https://billofrightsinstitute.org/founding-documents/bill-of-rights/).

Time and experience teaches us that the rights we enjoy as American citizens today are best safeguarded by a written guarantee and are best expressed as a result of the labors of many cooperating people rather than the expression of a single author ( pp. 220- 21). Our written guarantee is our Constitution, which provides for checks and balances, separation of powers and outlines what the rights and duties are for our branches of government as well as what our rights and liberties are as individual Americans ( https://usconstitution.net/const.html).

There are some people today who enjoy these liberties just as much as everybody else, but they believe that the Constitution should be a ” Living Constitution” that should be altered to suit their own agendas, which are usually to curtail individual rights and to expand the rights of the State. The weaknesses of this approach is more thoroughly explored here: https://www.law.uchicago.edu/news/living-constitution. We are at our best when we live by the laws that our forefathers set up in writing without trying to brush off 243 years of the collective wisdom and precedents that have resulted in the creation of the freest society on Planet Earth and by God’s grace, we will certainly remain so without unnecessary interference by those who want to undermine the American way of life.