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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.
Introduction
When American revolutionary Thomas Paine bragged to his friends in England about the U.S. Constitution, the feature he emphasized wasn't the powers it separated or the rights it protected, but rather the fact that it was written down. Written words might seem like an obvious feature of any constitution, but Paine was quick to point out that they're missing from the constitution of Great Britain, the country from which the United States seceded.1 Then, as now, the British Constitution referred to the unwritten arrangement of laws and institutions that make up, or constitute, the British government.2 Paine delighted in contrasting the "so much talked about" but never seen British Constitution3 with the American version "to which you can refer, and quote...