Revolutionary Constitutionalism

Part 3 in a series

Dear Friends: I would be most appreciative during this holiday season if you wouldn’t mind sharing this essay (and the two which preceded it) far and wide. It is the third and culminating essay in a series. The first essay, “Rethinking the American Revolution,” can be found here. The second essay, “The Rise of the British Deep State and the Coming of the American Revolution” can be found here.

The audio version of this essay is limited to paid subscribers.

I hope all of you have a Merry Christmas and a wonderful holiday season! Thanks for all of your support over the course of this last year. It’s very much appreciated.

The reorganization of the British Empire after the end of the Seven Years’ War seemed entirely necessary, rational, and just to British imperial officials. Not surprisingly, the Americans viewed these matters differently. They viewed the mother country’s attempted economic, political, and constitutional reorganization of its New World Empire as entirely unnecessary, irrational, and unjust. The colonists saw in parliament’s actions a violation of their basic natural and civil rights, and they also viewed the measures taken by the British government as an assault on the core principles and institutions of their beloved British constitution. Many Americans thought the British might achieve their ends by different means.

From the writs of assistance case in 1761 to the Coercive Acts in 1774, the American mind zeroed in almost immediately on questions of right, rights, liberty, justice, and power. The colonists opposed the writs of assistance and then the Sugar, Stamp, Townshend, Tea, and Coercive Acts because they violated their rights as Englishmen and their more fundamental natural rights. They opposed the writs of assistance because they violated their property rights; they opposed the Sugar Act because it violated their right to jury trials; they opposed the Stamp Act because it violated their right to not be taxed without their consent; they opposed the Townshend Acts because they created a massive, right’s-violating bureaucracy and ended self-government in New York; they opposed the Tea Act because it arbitrarily created an artificial aristocracy in America; they opposed the Coercive Acts because they threatened to starve Bostonians, and because they ended the self-governing institutions of Massachusetts; and they opposed the Prohibitory Act because it represented unannounced declaration of war against the American colonists, thereby threatening their rights to life, liberty, and property. From the American perspective, the new policies and laws were flagrant violations of the core moral principles at the heart of Anglo-American constitutionalism. These rights violations went to the core of the Anglo-American conception of justice and right, which explains why the colonists reacted so swiftly and even violently.

Up and down the Atlantic seaboard and from the coastal towns to the mountain villages, American colonials rose in defiant opposition to the impositions of the British Deep State. Depending on the particular issues at stake in each piece of British legislation, they typically wrote pamphlets and newspaper essays, delivered speeches and sermons, drafted resolutions, petitioned Parliament, formed local, provincial and continental congresses, boycotted the importation of British goods, eventually formed themselves into voluntary associations known as the “Sons of Liberty,” rioted every now and then, and sometimes even assaulted the homes of royal officials or worse. But it was not the actual amount of the taxes or the number of regulations that alarmed the Americans as much as it was the assault on their core sense of justice. In fact, what is most remarkable about the American Revolution is the degree to which the colonists saw themselves as acting to preserve not just their liberty, but also what they viewed as the ultimate source and embodiment of that liberty, namely, their inheritance of the British constitution.

American Revolutionaries did not view the economic and political aspects of parliament’s legislation as central or fundamental. In pamphlet after pamphlet and in one newspaper article after another, colonists from Massachusetts to Georgia applied the same moral logic and modes of constitutional reasoning to the Sugar, Stamp, Townshend, Tea, Coercive, and Prohibitory Acts. They almost always reasoned from moral first principles straight up to constitutional principles, or from constitutional principles straight down to moral first principles. For the colonists, the moral and the constitutional were inextricably linked. They interpreted the British constitution though the lens of the moral laws of nature, which explains why their reaction to the Stamp Act was so visceral and even violent. It was a direct attack on their fundamental sense of justice, and it brought forth a certain kind of spiritedness—what John Adams and many other colonists referred to as the “spirit of liberty”—that lay just below the surface in the colonists’ moral subconscious. This spiritedness was directly connected to what they saw as their moral right to self-government—self-government understood in the fullest sense of the term as the right and freedom to exercise one’s own judgment in the pursuit of one’s own chosen values and the subsequent right and freedom to act on that judgment.

The American Revolution was sparked and led by citizen philosophers who sought answers to the deepest kinds of questions. The colonists’ understanding of the British constitution was intimately connected to their understanding of more fundamental moral issues. From the Sugar Act of 1764 to the Prohibitory Act of 1775, American Whigs viewed virtually every piece of political legislation aimed at the colonies by Parliament through the prism of the British constitution, and every constitutional question was reduced to moral first principles. The Americans consistently emphasized principles above policies and institutions, and they saw no dichotomy between their ideas and their actions. Having thus ventured into unknown philosophical and constitutional territory, thoughtful Anglo-Americans began to survey the purposes and metes of government and to map out new areas of human freedom.

Thus, the shooting war between Great Britain and her American colonies began as a constitutional and ultimately as a philosophical battle of ideas concerned with fundamental questions of right and power. Contrary to the views of some twentieth-century historians, the American Revolution was not a bookkeeper’s or an accountant’s revolution. It may with much greater justification be characterized as a revolution of citizen philosophers defending fundamental principles of right and justice as embodied in their ancient constitutions (e.g., the traditional seventeenth-century English constitution and their colonial charters).

The principal constitutional question that divided Greater Britannia during the twelve years of the imperial crisis and which then led to a shooting war concerned Parliament’s declared “right” to legislate for the colonies without their consent. This was the principal at the heart of the Declaratory Act. At the political-constitutional level, this is what the American Revolution was all about. The Americans approached this question from several angles, each of which highlighted a slightly different aspect of the broader constitutional issues at stake. At the broadest level of abstraction, the constitutional issue at stake during the years of the imperial crisis came down to this simple question: what was the constitutional relationship between the British government (Crown and Parliament) and the colonial governments? More precisely, was it possible to demarcate the lawmaking authority of Parliament and thirteen separate and distinct colonial assemblies? From beginning to end, this was the central constitutional question that plagued both sides of the imperial crisis. America’s emerging revolutionary mind was all about drawing lines and fixing boundaries.

Drilling down to the moral-political core of the controversy, a few Americans identified how the broadest constitutional question—one concerned with drawing the line between Parliament and the colonial assemblies—was ultimately a moral question connected to the problem of force. In other words, the question dividing American colonials and British officials was: can the bounds of Parliament’s power be objectively known, identified, and marked out with precision and certainty, or is it determined subjectively by the wisdom or whims of those in power? Put differently, will the colonies be governed by the rule of law or the rule of men? Defining the principles and institutions, rules and procedures, powers and boundaries of the “constitution” was the pivotal issue around which British imperial officials and American Whigs danced and debated for ten years. In the end, as everyone knew, this constitutional war of words came down to a question of power—the power of Parliament to enforce obedience to its laws—and the question of power is, at its root, a moral issue.

But there was an even more important question at stake in the debate between British imperial officials and American Patriots. Eventually, the furthest seeing Whigs and Tories in America reduced the controversy between Britain and her colonies to one fundamental question: What is the constitution? This was the great question, above all others, that tore apart the Greater Britannic world. On both sides of the Atlantic, there was an urgent need to discover the true principles and meaning of the British constitution and its ancillary constitutions. Indeed, the very idea of a “constitution” (along with the idea of “rights”) was the single most important philosophical and political abstraction during the entire revolutionary era. It was the crucial issue on which the Revolution was fought. In the end, a theoretical debate over the nature of “the constitution” led to revolution and war because both sides could not agree on the constitution that governed their relationship. The problem was that there was no fixed standard or higher authority by which to settle the dispute.

The dilemma confronted by these transatlantic cousins can be seen by asking the simplest and most obvious questions. When American colonists declared the Stamp Act to be unconstitutional in 1765, what exactly did they mean by that? More to the point, to what exactly were they referring? The same can be asked of British Parliamentarians who regarded the Stamp Act as perfectly constitutional. The dilemma, of course, was that the Stamp Act could not be simultaneously constitutional and unconstitutional. Furthermore, to claim that the Stamp Act was constitutional or unconstitutional is to measure it against something; it is to judge it against a standard—a constitution. But to which constitution were Anglo-American statesmen referring? Which constitution were the two sides of the imperial crisis defending or claiming to be their ultimate guide and standard? Coming to grips with this question became the central issue of the imperial crisis.

In sorting out how eighteenth-century Anglo-Americans understood and then debated the idea of a constitution, we begin to see what the American Revolution was all about. In the century and a half between the founding of Jamestown in 1607 and the outbreak of the Seven Years’ War in 1756, there developed in the Anglo-American world a complicated understanding of what a constitution is and of the constitutional relationship between Great Britain and her North American colonies. It might even be said that the subjects of Greater Britannia invented over time—or reinvented—the very idea of a constitution in the seventeenth and eighteenth centuries. Not since ancient Rome had any nation in the world developed a constitutional system as sophisticated as that of the British. And yet, we are left with a curious paradox. The fact of the matter is that there was no British constitution in the eighteenth century, at least not one as we understand it in the modern sense; there certainly was no single written document that people could point to outlining the purposes, boundaries, and powers of government. Eighteenth-century Anglo-American statesmen could not pull out of their breast pocket a written constitution as Americans can today. There was no musty parchment document under a glass case that politicians or judges could point to and say, “there it is, there’s the constitution.”

That was the central problem in 1765, and it was still the central problem as late as the first half of 1776. Transatlantic Britons in both the realm and in the colonies could not find a common answer to what had otherwise been a simple question throughout much of the eighteenth century prior to 1765. Ultimately, the imperial crisis of the 1760s and 1770s and the subsequent American Revolution resulted from a collision of two radically different interpretations not only of the British constitution but of the very idea of a constitution itself. And behind this debate was an even deeper philosophic question: are the rights of Englishmen grounded in history or nature?

Taxation without representation, juryless trials, vice admiralty courts, standing armies, trade regulations, government-created monopolies, and increased customs officials were all important issues during the years of the imperial crisis, but American and British officials knew they were not the fundamental issues. The American Revolution was from beginning to end a contest over the nature and meaning of the British constitution and the nature and meaning of rights. Everyone in Greater Britannia knew that the central question concerned the nature of the constitution and Parliament’s authority in the colonies. In other words, it was a battle of ideas and principles concerned with the nature of a constitution and the philosophic principles on which a constitution should rest—principles such as justice, rights, freedom, power, and sovereignty.

By the early- to mid-1770s, more and more Americans up and down the Atlantic seaboard were coming to see serious imperfections not only in the British constitution but in their colonial charters and the so-called imperial constitution as well. By 1775, the American case against the British constitution had hardened. The principle “no taxation without representation” could not be reconciled in the British constitution with the principle of parliamentary sovereignty. The two principles, in the context of the British Empire, were simply incompatible. Over time, the Americans came to see even more fundamental flaws in the British constitution. In fact, colonial Whigs eventually came to reject not just particular defects of the constitution but everything about it. From the American perspective, the British constitution was no constitution at all. That was the ultimate and most damning criticism of the British constitution. By 1776, American Whigs concluded that the British “constitution” was not only flawed but that it was literally not even a constitution. In many ways, it was this realization that represented the Americans’ most profound declaration of independence.

The Americans had come a very long way both intellectually and psychologically in a relatively short period of time. What had seemed incomprehensible in 1764—indeed even as late as 1774—had become widely accepted in the colonies by 1775. Not only were Parliament and King thought to be corrupt, but so was the vaunted and revered British constitution. It was an astonishing transformation. It was also an untenable position, and everyone knew it. The Americans were now only a few steps away from declaring their complete and total independence from Great Britain.

**A reminder to readers: please know that I do not use footnotes or citations in my Substack essays. I do, however, attempt to identify the author of all quotations. All of the quotations and general references that I use are fully documented in my personal drafts, which will be made public on demand or when I publish these essays in book form.

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