Posted by: captainfalcon | March 13, 2011

The Constitutional Origins of the American Revolution

[Update: indented a block quote.]

TCOAR – Jack Greene’s new book – characterizes itself as offering an alternative explanation of the intellectual sources of the American Revolution from that given in Bernard Bailyn’s The Ideological Origins of the American Revolution. My suspicion is that, in fact, the two complement each other.

I. TIOAR’s Take

TIOAR argues that the early American colonists were moved to rebellion – or, at least, came to see rebellion as a justified reaction to London’s colonial policies – because they had been steeped in the worldview of Eighteenth Century opposition “country” political thinkers (authors of, inter alia, Cato’s Letters and An Account of Denmark.) The country theoreticians, argues Bailyn, defined themselves by contrast to the complacency and political consensus of post-Glorious Revolution Walpolean Britain.

Two factors contributed to post-1688 complacency. First, Robert Walpole’s approach to government was calculated to avoid upheaval; if he could not co-opt competing interest groups by conferring sinecures upon them, he would assiduously align his government with the strongest faction. Second, Parliament completed its shift from an advisory to a legislative role. It became widely understood that the locus of sovereignty in England, and thus the British Empire’s metropolitan constitution, was no longer the king-in-council, but rather the king-in-Parliament. This meant that Britain had finally responded to the Aristotelian insight that whereas in an ideal world crown, lord or commons can by itself be an enlightened ruler, in fact they all tend to degenerate into corruption: a monarch becomes a tyrant, an aristocracy becomes an oligarchy, and rule by the people becomes rule by the mob. Because the king-in-Parliament gave voice to all three of these estates, however, it was (somehow) supposed to instantiate the strengths of them all, while preventing any encroachments on British liberties.

Surveying the same scene, the country politicians came to dramatically different conclusions. For two reasons, they did not have the same faith in institutional checks on power that in whose clutches those who celebrated the new British constitution seem to be. First, they accepted a cyclical conception of history, which disposed them to a general skepticism toward (even modestly) utopian claims. Perhaps Britain was in a season of liberty, but it was just that, and things were bound to oscillate away from liberty once again. Second, the country theoreticians thought that vigilance – an outgrowth of civic virtue – was the only reliable bulwark against tyranny. But vigilance is only as reliable as the citizens who must exercise it, and they are only as reliable as they are uncorrupt. But – another insight underlain by the cyclical conception of history – it is inevitable that as a vigilant citizenry protects its liberties (and prospers as a consequence) it becomes soften by luxury, and corruptible as a consequence.

In the country worldview, a sure sign that the citizenry has lost its virtue is the rise of standing armies. This, Robert Molesworth argues in An Account of Denmark, is precisely what happened to the Danes. They secured their liberties, prospered, lost their vigilance, introduced mercenaries, and were reduced to “slavery” (the rather hysterical country term for being under arbitrary, even if customarily unexercised, sovereign power).

Bailyn argues that, whereas the country worldview was marginal in England, it was received wisdom in the American colonies. It thus predisposed American colonists to regard Walpolean corruption – which they witnessed both abroad and, as the Royal Governors in the colonies emulated it (ironically, because they were too weak to do anything else), at home – as evidence of a diminution in citizen-vigilance. It was an understandable diminution, given the increased prosperity in America and, especially, the thoroughly decadent opulence of London, but no less troubling for that. And when, in the late 1760s, a regiment of British soldiers quartered itself in Boston, who could ignore the Danish parallels? The choice was rebellion or enslavement.

II. TCOAR’s Take

Bailyn’s book does not ignore the legislative activity during the years leading up to the American revolution – the Stamp Act, the Navigation Acts, the augmentation of vice-Admiralty jurisdiction at the expense of ordinary common law courts (with their juries culled from the colonials) – but situates it in a broader political debate. Thus, Bailyn’s aim is to explain how those steeped in country theory would identify in the legislation emanating from London a pattern of encroachments on pre-legal liberties (and, also, evidence of  corruption and loss of vigilance). Even where Bailyn focuses on “constitutional” disputes his perspective tends to be that of colonial era political, not legal, theory. Thus, by Bailyn’s lights, the debate over whether the king-in-Parliament had legislative authority over the internal affairs of the colonies – an ostensibly legal issue – turned on whether the proposition that colonial assemblies had a sphere over which they were sovereign implied they were imperium in imperio (a sovereign state within a sovereign state) – something political theory widely thought to be an absurdity.

By contrast, Jack Greene’s The Constitutional Origins of the American Revolution gives pride of place to legal and (particularly) constitutional disputes in explaining the intellectual origins of the Revolution.

Two sets of ambiguities – tolerated by London for strategic reasons – gave rise to the constitutional disputes that Greene identifies. The first ambiguity concerned the king-in-council’s relationship with the colonies. Because the colonies were chartered directly by the king, London legal theorists argued that the king and the Privy Council had total authority over colonial affairs. The colonists, meanwhile, still conceived of themselves as Englishmen, and therefore entitled to traditional rights, liberties and privileges. One of these privileges, particularly salient in the wake of the post-Glorious Revolution constitutional retrenchment, was the right to be governed by a representative assembly, such as the king-in-Parliament.

The first constitutional dispute, then, concerned whether by virtue of being established by royal charter the colonies were obliged to obey instructions issued by the King or Privy Council. (Greene goes deep into the legalistic weeds on this one. For example, the colonists argued that even if the royal charter established, and thus governed, them, the royal charter was issued under the “great seal” of England. But royal instructions were only issued “under the lesser authority of the privy seal,” and were typically kept secret (Greene, 30). There was no reason to think that the king’s ministers could govern the colonies by secret diktat.) Interestingly, whereas there was a broad consensus within the colonies that the king-in-council did not have legislative authority over them, nobody seems to have seriously questioned the Privy Council’s power of judicial review. I speculate this is because of the clause in all the royal charters forbidding the passage of laws “repugnant to those of England,” or words to that effect.

The first constitutional ambiguity concerned the relationship between the colonies and the king-in-council; the second focused on the relationship between the colonies and the king-in-Parliament. Here, at the start, there was no consensus. Some colonials rejected the king-in-Parliament’s power to legislate; most accepted it; when it suited them, some even appealed to the greater wisdom of the metropolitan Parliament in order to seek nullification of objectionable local laws. While there was no theoretical literature opposed to the king-in-Parliament’s authority over the colonies (unlike in Ireland, where William Molyneux published a sustained and influential attack on parliamentary authority in 1698), there grew up a body of usage and custom that implied a de facto “double legislature” in the colonies:

Parliament usually limited its actions with regard to the colonies to the general or external sphere and was obviously not clearly informed about … the Constitutions and Governments within the Colonies, while the Crown, through its governors and its powers of legislative and judicial review, exerted the predominant role in metropolitan interactions with the colonies. The colonists, therefore … could reasonably develop a sense that the colonies were primarily the king’s dominions and that Parliament’s involvement with them was essentially conciliar – that is advisory to, reinforcive of, and operating through the Crown (Greene, 51).

With respect to the internal affairs of the colonies, then, Parliament’s power was thought to be purely advisory, and thus parasitic upon the king’s. And – chutzpah alert – “[i]nasmuch as Parliament’s colonial authority … derived from the Crown, it followed that as the colonial assemblies had succeeded in reducing the Crown’s authority in the colonies, they had also diminished the authority of Parliament” (Greene, 51). When these two ambiguities interact, then, the stage is set for a dispute about the coherence of imperium in imperio (if neither king-in-council nor king-in-Parliament has supreme sovereign authority over those spheres where colonial assemblies can regulate then dual sovereignty is a reality). But its source, if Greene is correct, is legal.

I earlier said that these two constitutional ambiguities arose in part because London tolerated them for strategic reasons. The strategic reasons, by Greene’s lights, stem from a core pillar of British imperial policy (which is also a pillar of imperial policy in general). Following – so he says (Chris will have to confirm, if he gets here) Charles Tilly – Greene argues that the British empire did not radiate out monolithically from the metropole, but arose from a kind of inchoate bargaining between periphery and center. Early on, it was cheaper and more practicable for the British to permit the colonists to develop their own constitutions and methods of local administration, even if this meant, as a practical matter, relinquishing some aspects of sovereignty. As the colonies became better established, and so as British administrative infrastructure became more sophisticated, the British often wanted to diminish colonial autonomy in order to strengthen her colonies’ dependence on the metropole. Here, too, the proper lens is reciprocal bargaining, British acquiescence to colonial legislatures, and also its attempts to assert dominance over them are in the first instance best seen as efforts to negotiate and renegotiate distributions of power. A side effect, of course, is that a body of legal and constitutional understandings (and ambiguities) sediments on top of the intra-Imperial realpolitik. Eventually, the superstructure becomes a vector of its own, and Jack Greene gets to play with it.

III. Conclusion

I am not yet finished with TCOAR, but it is an excellent book. So, too, is TIOAR. My suspicion is that Greene’s attempt to set up a conflict between his book and Bailyn’s is somewhat misplaced. Constitutional and political understandings together help form the ideology of a place or age, and, just as ideology is an independent social and political force (the precise strength of which is likely impossible to measure), so too all of its parts can have an effect.

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Responses

  1. Interesting read. Does Greene explicitly argue that his book offers an alternative interpretation of the origins of the American revolution to Bailyn? It seems, as you argue, that they deal in separate (though complimentary) realms.

    As for your Chris-bait, it does seem at least analogous to Tilly’s model for state formation, though it gets a tad complicated, as we are not dealing with a traditional state but an empire (and not quite the HRE-sort that Tilly contemplates). I wish Kyle wasn’t holding my copy of Coercion and Capital for ransom, or I could elaborate further.

  2. In effect Greene argues that his book is an alternative to Bailyn’s; he says the constitutional origins of the American Revolution are “infinitely” more important than ideology:

    “When, in the late 1960s, Bernard Bailyn and others did begin to explore those traditions and assumptions in depth, they assigned little causative weight to the specifically constitutional dimensions of the conflict … The force of my protest that throughout the era before 1763 colonial legislators and polemicists had been infinitely more concerned about limiting prerogative than about preventing corruption was, it seemed to me, mostly lost on a historical community that was rushing to absorb and work out the implications of Bailyn’s ideological interpretation” (Green, x).

    From what I’ve read so far he’s given plenty of reason to think constitutional considerations played a significant role, but no reason to assign them greater weight – especially not “infinitely” greater weight – than the ideological considerations that Bailyn identifies in his book and supports with lots of quotes (for whatever quotes are worth).

  3. Also, what does “HRE” stand for? False. False. FALSE. stupid.


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