Why the Constitution Was Written Down

Abstract

A funny thing about the U.S. Constitution is that it’s written down. Words might seem like an obvious feature of any constitution, but they’re notably missing from much of the constitution of Great Britain, the country from which the United States seceded. Historians have often assumed that the quirky American practice of putting constitutions into single documents has its origins in the corporate charters of the seventeenth-century trading companies that founded more than half of the thirteen original states. But, as historian Mary Sarah Bilder has written, it is surprisingly difficult to explain the change from corporate charter to modern constitution with precision and persuasive power.

This Article attempts to do just that, telling the story of a series of lawsuits that forced the Massachusetts Bay Company to treat its charter’s terms as Gospel. Relying on original research of thousands of primary sources from the United States and the United Kingdom spanning from 1607 through 1793, this Article presents an account of how a corporate charter evolved into a “Charter Constitution” in America while the British Constitution remained intangible.

This Article demonstrates that written words became a defining feature of American constitutionalism a century before the American Revolution, and that this distinction between the American and British understandings of constitutions contributed to American independence. The historical origins of American constitutionalism can also supply more depth to modern interpretive debates over whether text alone can provide meaningful limits on government power without reference to external traditions, modes of enforcement, or evolving practices.

Keywords: Constitutional Law, Constitutional History, Legal History, Colonial History, American History, Massachusetts Bay Company