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The Contest for Constitutional Liberty

In 1993 John Phillip Reid published the fourth and final volume of his Constitutional History of the American Revolution.  The subtitles for each volume are noteworthy: The Authority of Rights (1988); The Authority to Tax (1987); The Authority to Legislate (1991); and, finally, The Authority of Law.  The shelves of many American libraries, public and private, have welcomed the accumulated weight of historical explanations of the coming of American Independence with political, economic, and social templates serving as the sources of underlying causation.  Few, too few, have offered legal and constitutional analyses, an intellectual shortcoming that would have astounded, and likely angered, American whigs watching from their perch in 1775.  Of the few who have, fewer have embraced the centerpiece of Reid’s focus on the two constitutions.

This essay seeks to restate Reid’s masterly understanding of American constitutionalism in Authority of Law for two reasons.[1]  First, Reid’s interpretation of the immediate causes of the American decision to separate from the home country demonstrates the importance of law in the determination of human affairs.  Some may well assert that the embrace of and experience with legal history and principle precede and help to give shape and meaning to political ideas.  Insofar as this holds, constitutional idea and principles become vital for an understanding of the narrative of political history.

Second, most American historians, when they do think about the American Revolution not only do not think about it in constitutional terms, but also, if they do, think only of one constitution.  Reid changed that when he called for attention to an 18th century British constitution that was in “a state of contrariety–not a state of transition, it is always in such a state, but a state of polarity.” That polarity affected the American colonies as well, and the polarity metastasized after the conclusion of the French and Indian War as Parliament, struggling to pay for the war and organize an expanded American empire, asserted constitutional power in ways destined to clash with the growing American understanding of distinctive colonial constitutional capacities.  In brief, the signing of the Treaty of Paris in 1763 signaled the end of more than “salutary neglect.”

In March of 1766 when Parliament voted to rescind the Stamp Act, that unseemly stab at a direct tax on American colonists, the Declaratory Act accompanied it.  It defined a new constitution for Great Britain and the Empire, a constitution that the Americans would denounce and ultimately deny, a constitution that in part was encapsulated by these words: “the King’s majesty, by and with the advice and consent of the lords spiritual and temporal, and commons of Great Britain, in parliament assembled, had, hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America, subjects of the crown of Great Britain, in all cases whatsoever.”  Reid showed that this assertion of absolute legislative power signaled a new constitution.

It was the constitution of the Stuarts with prerogative now shifted to new lodging in Parliament not the Crown.  The Declaratory Act announced this assertion of constitutional power that American whigs quickly claimed was arbitrary.  It is critical to understand that by this they meant a power that was without checks, that hallmark of the Glorious Revolution.

The centerpiece of Reid’s contribution was this illumination of this emergence of two 18th century constitutions, one British and one American.  The British constitution, newly framed after 1763 became a throw-back to the Stuart constitution of unchecked prerogative, now in the hands of Parliament, not the Crown.  It was against this assertion of power that the Americans revolted—tax policies, land policies, etc., being but an ancillary part of this fundamental conflict.  It was here in the significant years after 1773 that Parliament’s reaction to the brewing of Boston Harbor by imposing the Coercive Acts made it imperative that Americans articulate their constitutional principles. They did so by upholding the elements of the late seventeenth century English and post Glorious Revolution constitution that Parliament jettisoned after the French and Indian War.

The Coercive Acts, imperial in scope, became the unwavering foundation for Parliament’s assertion of unified sovereignty.  American whigs disagreed, recognizing it as an unconstitutional expression of law as force.  Seeking both an older view of a British constitution Americans claimed and a constitutional recognition for what they as colonies over the many years had become, Americans argued that they had thus acquired a constitutional standing and with it sovereignty.  Each colony had developed distinctive legal orders based on a blend of English and American custom and principle.  This became one of the foundations of the American whig claim to sovereignty.  On this, despite various American political attempts for a solution to the constitutional impasse, including an idle appeal to the King to intervene on the American behalf, there was no compromise that Parliament ever considered seriously.  In Reid’s view, this was “the collision course” leading to separation.

The 21st century point in all this is important in all sorts of ways, including questions of the birth and slow death of federalism and the gradual emergence of a new constitution based on the assertion of law as force.  It has little or nothing to do with the long standing flap over “a living Constitution.”  It is my historical belief that the United States began with one constitution, the one written;  the one that was designed to control power, not to condone an unlimited use of power; and the one that was designed to uphold a rule of law which, among other things, meant government by consent and a government by prescription not proscription.  At some point in American history this changed, drastically.  Some tie it to FDR; some go earlier—Wilson, Lincoln, the Whigs, the Anti-Federalists.  The point remains clear—at some point Americans, whether or not they noticed it, became saddled with two constitutions, one the 18th century version—the other a “modern” assertion of total, centralized power.  John Philip Reid’s Constitutional History of the American Revolution: The Authority of Law retains its timeliness

[1] The Authority of Law was more than the concluding volume in this series, it became a summation of sorts of several previous inquiries Reid published on more focused 18th century imperial conflicts in America: In a Defiant Stance: The Conditions in Massachusetts Bay, the Irish Comparison, the Coming of the American Revolution (1977); In a Rebellious Spirit: The Argument of Facts, The Liberty Riot, and the Coming of the American Revolution (1979); In Defiance of the Law: The Standing-Army Controversy, and the Coming of the American Revolution (1981); The Concept of Liberty in the Age of the American Revolution (1988); and The Concept of Representation in the Age of the American Revolution (1989).  These compelling forbearers combined to yield a character of firmness and clarity to The Authority of Law.  (For elaboration of Reid’s published works and extended commentaries by William Nelson, Hendrik Hartog, R. B. Bernstein, Laura Kalman, Jack Greene, and others see Hendrik Hartog and William E. Nelson, eds., Law as Culture and Culture as Law: Essays in Honor of John Phillip Reid. Madison, Wisconsin. Madison House Publishers. 2000.)

Reader Discussion

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on August 13, 2015 at 11:53:58 am

An historiographical caveat, and a question.

This is a fine essay, and John Philip Reid's scholarship absolutely merits celebration.

That said, Reid did not produce his central thesis in isolation. Two other scholars contributed significantly to its articulation and development: legal historian Barbara Black, and especially historian Jack P. Greene, whose contributions to scholarship are so broad they defy easy categorization. Greene in particular is noteworthy--his two important book length contributions to the constitutional history of the Revolution are fundamental. He is likely the most important living historian of 18th century British America, after Bernard Bailyn. So to the extent that this essay implies either that Reid (and Greene, and Black) have had little impact on how we conceptualize and teach the Revolution, or that Reid is the only important scholar to develop this thesis, I think the essay errs. Greene has trained and placed a sizable fraction of my generation of scholars, and every single one of them knows his work, and that of Back and Reid, intimately.

My question: Curtis implies that some scholars attribute the modern, statist constitution to Anti-Federalist thinkers. This strikes me as an incorrect reading of the principle AF writings--either judged by their substance (Melancton Smith, the authors of Brutus, Cata, Federal Farmer, Agrippa, and so on) or by influence at the time (Gerry, Mason, Randolph). I am entirely open here to being corrected--which scholars have made this assertion? Just off the top of my head, if we wish to attribute the origins of American statism to the founders, the Pennsylvania and New York statesmen in the Hamilton-Morris circle strike me as more likely candidates. I would, I suspect, profit from reading scholarship that challenges my own views. Can you point me to it? Thanks in advance . . .

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Kevin R. Hardwick
on August 13, 2015 at 12:14:14 pm

This is a fine essay and one that prompts me to read John Phillip Reid's book. More importantly it provides one with a slightly different frame of reference when considering (debating here at LLB) some particular constitutional questions - in particular, the rise of the Administrative State.

I suppose I must ask the following:

Is it unreasonable to compare the Administrative Procedures Act (and it's lineage) to the Declaratory Act? If nothing else, both signal or having given rise to the return of *prerogative.* In both cases, we observe the dissolution of a constitutional framework designed to limit power and prerogative and replace it with force (although the latter instance employs a more stealth like force).

BTW: Kevin, any recommendation on reading from historians you cited - something not unduly long, I hope.

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gabe
on August 13, 2015 at 13:05:26 pm

Thank you for sharing this vital perspective.

Nothing seems worse than G.W. Bush reading the first amendment and agreeing, "Yeah. This restricts Congress, but not me." He gave us faith-based policy. And his proliferation of tsars--from some ten to some forty.

A Civic People of the United States is working on a remedy for this problem: convince 70% of Americans that taking charge of civic morality is as vital to a person's candle-of-life as earning your money is vital to your daily living. A civic people collaborate to manage governance without forsaking the individual vote.

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Phil Beaver
on August 13, 2015 at 15:19:12 pm

This reminds me an awful lot of the current American "Big Mommy" Revolution, best embodied by SCOTUSCare.

Through tax penalties the legislature assumes a power to bind us in all cases whatsoever, or at least those cases in which we can be penalized through taxes for not conforming to the will of the legislature.

The tax penalty rule subjugates us to an industry, in this case the insurance industry. We must conform to the arbitrary rules of an industry, or the industry drops us and we are penalized by the government. That makes the industry a part of government. This new lodging of government is subject less to the old defining principle of redress of grievances and more to the new defining principle of crony capitalism (hallmarked by the assertion that it is being done all for the sake of the children, of course).

Through tax bindings, and through government enforced industrial bindings the old republican Constitution is being replaced. Although, I suppose, someday those two abuses by government can be reversed and corrected. In the 18th century the existing British constitution and government became too overbearing and the people exercised their right to alter or abolish them. If the binding character of today's living US Constitution are not corrected, and if redressable republican government is not reestablished it is possible that history will repeat itself here and the overly binding constitution will be tossed out completely by a rebelling people and replaced by another, as-yet-to-be-defined, one; or perhaps a group of states will decide that enough is enough and issue a proper redress of grievances to a belligerent government ala 1774 and then secede.

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Scott Amorian
on August 13, 2015 at 15:59:58 pm

Gabe--

Jack Greene, for all of his genuine excellence as a scholar, is a mediocre stylist. His writing, though, is succinct (even if too many of his sentences are not).

Here is the book to read on the Revolution:

http://www.amazon.com/Constitutional-Origins-American-Revolution-Histories/dp/0521132304/ref=sr_1_1?ie=UTF8&qid=1439495745&sr=8-1&keywords=jack+p+greene

John Phillip Reid is not a great stylist either, and he has a quirky way of presenting his argument that takes some getting used to. He condensed his four volume treatment of the Revolution into a single short edition, and its certainly worth reading:

http://www.amazon.com/Constitutional-History-American-Revolution-Phillip/dp/0299146642/ref=sr_1_1?ie=UTF8&qid=1439495915&sr=8-1&keywords=John+phillip+reid

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Kevin R. Hardwick
on August 13, 2015 at 18:25:04 pm

Kevin:

Once again, thanks for the help AND once again Kudos to you for your scholarship. You have a way of making folks (me, actually) realize that there are things that we know that we did not think we knew. From this we can have a broader perspective. I think this is an indication of a good teacher - so thanks again.

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gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.