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.)