John Phillip Reid's Constitutional Achievement

John Phillip Reid, prolific scholar of early American constitutional and legal history, passed away on April 6, 2022, at 91. Spending his entire career at NYU Law, Reid established himself as one of the most erudite and penetrating minds in the field of American constitutional and legal history.

After publishing a judicial biography on Charles Doe in 1967 and an important work on the eighteenth-century Cherokee legal system a few years later, Reid turned his energies to the American Revolution. His work on the constitutional dimensions of the Revolution challenged both the progressive interpretation, which viewed the conflict through the lens of socio-economic conflict, and the ideological school, which connected the American arguments to the republican intellectual tradition. Both schools, he believed, failed to grasp the essence of the era’s thinking. The American Revolution, he concluded, was concerned predominantly with the nature of the British constitution. By supplying the forgotten constitutional context to the modern historical debate, Reid’s scholarship left an indelible mark on our understanding of the Revolution. His passing offers a chance to remember his often unappreciated work.

Reid first made his case for the constitutional nature of the American Revolution in a series of lengthy law review articles and works comparing the “conditions of the law in Ireland and Massachusetts” and the concepts of representation and liberty at the time of the Revolution. His full-throated correction, however, came in his magnum opus, the four-volume, Constitutional History of the American Revolution (1988-1993). Each volume concentrated on one aspect of English constitutionalism: The Authority of Rights; The Authority to Tax; The Authority to Legislate; and The Authority of Law. In 1995, he produced a surprisingly slim, single-volume abridged edition. The collection remains, and probably will remain, the single most important constitutional analysis of the Revolution. It deserves a far wider readership than it has received and should be considered the equal of and, in some ways, a necessary correction to Bernard Bailyn’s Ideological Origins of the American Revolution.  

Perhaps the most crucial element of Reid’s work was his disentanglement of the constitutional from the ideological. Much of what the “intellectual school” labeled republicanism, he argued, came “straight out of the literature of the common law, from the writings of Sir Edward Coke, Sir Matthew Hale, and even Sir William Blackstone.” This common law mind, with its emphasis on the assumptions, customs, traditions, and values of the British constitution, shaped the Revolutionary debate and centered it on “constitutional anxieties.” Reid’s emphasis on the constitutional dimensions of the debate stood in stark contrast with the ideological school’s construction of a “comprehensive system of thought in which constitutionalism was one contributing element of the contemporary world view.” Essentially, the ideological school made constitutionalism a supplement to the larger ideological argument rather than the primary motivator. This is not to say that Reid dismissed the findings of “intellectual school”—indeed, he often praised their work—but he saw it as his goal to correct, sharpen, and refocus those arguments to bring actual constitutionalism back into the story.   

Reid believed the downplaying of constitutionalism resulted from the intellectual school’s anachronistic importation of nineteenth- and twentieth-century notions of constitutionalism into eighteenth-century discourse. One of Reid’s most persistent criticisms centered on historians’ presumption that law and constitution are the commands of the sovereign. Far too often, historians assume that what Parliament stated was the law, thereby concluding that the only way to understand the negative American response to measures such as the Stamp Act and the Coercive Acts must be to look beyond the law to political ideology. In the eighteenth century, however, “constitutional,” “legal,” and “political” lacked the precision they now carry. In that era, “constitutional” still retained its older definition rooted in custom, “to proceed in conformity to law, in conformity to custom, and in conformity to the current constitutional conventions.” At the same time, “legality” meant acting within the confines of the customary constitution, while the “political” was “a matter of choice rather than precedent” designed for immediacy rather than durability. Hence, the British constitution of the eighteenth century remained one in which custom, traditions, and values restrained power.

The adherence to the seventeenth-century British constitution of custom illuminates why Americans denied all of Parliament’s attempts to tax the colonies internally.

A great example of Reid’s point was the American indictment of Parliament wielding arbitrary power to tax the colonies directly. Because historians incorrectly assume that the eighteenth-century Parliament commanded the law, the only way they can make sense of this claim is to turn to the canons of Whig ideology, which held all power as suspect. According to this reading, Americans advanced a political claim when charging Parliament with arbitrary actions. They considered Parliamentary taxation, for example, as arbitrary because it exercised ever-dangerous power to resolve the immediate issue of paying for troops on the frontier. The constitutional argument, however, becomes evident when we understand that the colonies primarily understood the law as governed by custom and convention. Under the authority of custom, Parliament lacked the constitutional power to tax the colonies. By operating outside of custom, they acted unconstitutionally and arbitrarily. Hence, the claim of arbitrary power was not a political response borne out of ideology, but a constitutional one rooted in notions of custom and authority.

By distinguishing the constitutional from the ideological, Reid showed how the American Revolution represented the clash of the “two constitutions.” The American understanding of the British constitution “looked to the past.” Theirs was the constitution in which custom “was law’s evidence, one of the chief sources of authority, and, as authority, was in fact law.” Custom established a rule of law that restrained power. The American understanding of the British constitution was the constitution of the common law defended by the likes of Edward Coke, John Pym, and John Hampden. It explained why the American argument made consistent appeals to the seventeenth century. These appeals were not just the use of history to prove a point but pointed to the customary authority of the British constitution. To put it another way, the adherence to the seventeenth-century British constitution of custom illuminates why Americans denied all of Parliament’s attempts to tax the colonies internally. Since Parliament had never interfered with the colonies’ internal affairs, they lacked the customary authority to do so. Since what was customary was constitutional, this meant Parliament lacked the constitutional authority to enact direct taxation.

As Reid made clear throughout his four-volume work, the winds of constitutional change were blowing in eighteenth-century England. While the Americans clung to the idea of custom as constitutional, in England, a growing “state of contrariety” created a “state of polarity” in their constitutional theory. The constitutional change that resulted from the Glorious Revolution of 1688, in which Parliament consumed all sovereign power of command, was still in its early stages in the mid-eighteenth century; the customary constitution remained but was crumbling under the weight of Parliamentary sovereignty. It was not until the 1766 Declaratory Act, which affirmed that Parliament could bind the colonies in “all cases whatsoever,” did the logic of Parliamentary sovereignty receive its definitive statement. This constitution of sovereign command represents the second constitution. Unlike the colonies that looked to the past, this second constitution “looked to the future” of modern constitutionalism in which Parliamentary power was the rule of law. These two competing notions, bursting forth in the mid-eighteenth, proved so incompatible that they resulted in the American Revolution.

Reid’s critiques of the anachronistic and ideological readings of the Revolution and his reorienting of the Revolution to its constitutional foundations are of critical importance. His admonition that we should pay more attention to Anglo-American constitutional history and theories than to the numerous strains of premodern and modern political thought is one that all scholars of the Revolution should heed. The intellectual strains that most studies on the Revolution examine may have had adherents in the colonies, but the main arguments advanced during the imperial crisis were ones originating in the English constitutional system. What this should tell us is that the system will not work unless it runs according to those English traditions. Importing Marxism, continental theory, religious ideologies, or critical theories to reinterpret the Constitution or the American political tradition is doomed to failure. Such theories will irrevocably change—if they have not already done so—the American constitutional experience.

In short, John Phillip Reid’s works should force us to come to terms with a Revolution designed to preserve a constitutional tradition, not create a new one.