INTRODUCTION: THE CONSTITUTION AS FUNDAMENTAL LAW

One of the major innovations that the American Founders brought to constitutional thought was their conception of a constitution as a written, fundamental law–the supreme “law of the land” that defines the organization of government and serves as the ruling principle for the proper exercise of power by legislators, officials, and judges. This conception of what a constitution should do stood against centuries of European history, in which constitutions were shaped by traditions, circumstances, and bloody warfare, legislative acts and the decrees of kings had constitutional force, and constitution-making usually involved upheaval by violence and revolution. With the American constitutional revolution, a written constitution was no longer a description of a political system, but a prescriptive plan of government and a law to govern its operation, enacted by rational deliberation and used as a legal standard.

This American legal conception also ran counter to the premises of Greek political thought, which defined basic constitutional forms and grappled with constitutional change, but never theorized about a written constitution as a fundamental law. Although the figure of the lawgiver looms large in ancient Greek political history, a Greek polis (city-state) grew largely from local customs or the customs of a colony's mother city, not from conscious design, and many of its constitutional provisions remained implicit, unwritten and customary. Greek thinkers had understood a constitution–a politeia–to be the organization of a polis, founded on the ethical nature of its citizens; the polis functioned according to the conception of justice that dominated it.