–Steven G Calabresi
This article compares in a panoramic way the founding and basic structures of the Constitutions of the Republic of India and of the United States of America. In the United States, there is no such thing as an unconstitutional constitutional amendment. The U.S. Supreme Court simply does not have that power, and an attempt to assert it would be suicidal. But, what if the U.S. Supreme Court did have the power to strike down constitutional amendments that violated the Basic Structure of the U.S. Constitution? How would I describe the contours of the Basic Structure of the U.S. Constitution? I seek in this essay to positively describe the historical events and the Basic Structures of the U.S. and the Indian Constitutions from the perspective of Comparative Constitutional Law.
The American constitutional experience germinated from the founding of Jamestown in 1607 until American independence in 1776. During this 169 year period, the American colonies became accustomed to having a Royally-appointed Governor, who exercised the executive power. These governors were advised by a Governor’s Council, picked by the Governors and officials in London, and which ultimately became the State senates after 1776. The Governor in Council appointed and removed all colonial executive officers and judges. The people of the colonies were represented in a colonial House of Representatives, which had the sole power to raise taxes and spend money. In Massachusetts, the House refused to pay a permanent salary to the royal governor choosing instead to pay him as much or as little as his behavior during the previous year seemed to warrant. In the 169 year colonial period, the American colonists became very used to having a lower house of the legislature, a governor’s council, which became the upper house of the bicameral colonial legislatures, and a separately selected chief executive. It is thus not surprising that, in 1787, Americans set up a constitution with a separately elected president, senate, and House of Representatives.
The basic structure of the U.S. Constitution was also, in part, the result of two dystopias: the first was the Imperial Tyranny of 1776 and the Second was the Village Tyranny and the collective action problems experienced by the states in the period running up to 1787. In 1776, Americans thought they were the victims of an imperial tyranny conducted by a government 3,000 miles away across the Atlantic Ocean and presided over by a tyrannical King who wanted to undo the limits on royal power created by the English Glorious Revolution of 1688. Colonial Americans were against imperial or national power and they were against executive power and in favor of legislative power. They thought the people elected the legislature while the imperial King appointed their governors. They also thought the people’s legislature would never abuse power because the people unlike Governors loved liberty. This faith in the people quickly showed itself to be quite naïve.
As a result of these beliefs, Americans between 1776 and 1787 wrote eleven state constitutions: one for each of the 13 states except for Connecticut and Rhode Island, which opted to retain their Royal Charters as constitutions. These constitutional arrangements were disastrous. Legislatures bickered over who to appoint to offices, passed bills creating inflationary paper money, and rode roughshod over the citizens liberties. The Convention met in Philadelphia, Pennsylvania, and it drafted the present Constitution of the United States, which went into effect in 1789. The Philadelphia Convention was supposed only to draft amendments to the Articles of Confederation, but under the chairmanship of George Washington, it became a runaway convention, which drafted a whole new Constitution to replace the Articles of Confederation. That Constitution is both the oldest and the shortest Constitution in the history of the world.
Read the full article here.
Cite as: Steven Calabresi, Comparison of the Founding and the Basic Structures of the Indian Constitution and of the United States, 2 Ind. J. of Const. Admin. L. 83-106(2018).