Now that the health care proposal has been approved by Congress and signed into law, some people are feeling pretty happy I suppose. Much of the angst and anger about the procedures impeding reform—reconciliation, procedural delays, etc—has receded. But the basic problems that stirred everyone up in the first place haven’t disappeared. As Alan has suggested in the Game Changers Series, the problems might be structural rather than political. The fundamental flaw in our system is not the absence of a big political majority. Democrats have that right now. Instead, the problem is the underlying document—our written constitution—that frames the debate and our deep, almost pathological, attachment to the halo of myths surrounding it. Changing the structure of our system—our constitution—is difficult and only made more so because of our flawed understanding of our own history, especially the origins of our founding document.
Americans tend to have an outsized sense of the constitution’s historical significance. The core tenets of the constitution of the United States were not innovations, but rather reaffirmations of the English constitution—an unwritten constitution. Our country’s founders did the best they could to keep the best parts of English government. Today making significant changes to our founding document is arduous if not impossible because it is written, for all practical purposes, in stone. The first step to making the big structural changes we need in the way our country makes policy is to put the constitution in proper context.
It is a singularly American belief that we invented democracy in 1776 with the Declaration of Independence, and perfected it in the following decade with the ratification of the Constitution.
I’m no Constitutional scholar, but I know that story isn’t true. Let’s take a look at the separation of powers, which is considered by many to be an innovation of our own founding document, but is properly attributed to Montesquieu, a French political thinker (1689-1755). Separation of powers is the notion that government ought to be divided into three distinct branches to ensure freedom: executive, legislative, and judicial. While many Americans would identify this as a unique American principle of governance, The Founders’ Constitution introduces the concept of the separation of powers by linking the idea back to Montesquieu.
Among Americans reflecting on new political arrangements in the latter half of the eighteenth century, no political authority was invoked more often than “the celebrated Montesquieu.” Thanks in some measure to those Americans themselves, the name of Montesquieu is firmly attached to the doctrine of the separation of powers.
Charles-Louis de Secondat, baron de La Brède et de Montesquieu, (1689-1755)
Montesquieu’s division of government into three branches was, in many ways, documentation of what already existed in the English system of government in the early 18th century after England’s Glorious Revolution. And the “founding fathers” didn’t need Montesquieu to explain the English constitution to them; they were living under it during the period leading up to the American Revolution. In fact, it was their conviction that George III had abrogated that constitution which, in their minds, legitimized the rebellion.
The American Revolution is best understood in this context. Contrary to popular mythology, the founders did not see the American Revolution as a radical rejection of the principles of the English constitution, but rather the apotheosis of that system of government. So the best understanding of American history is in the context of British history, especially when trying to appreciate the fundamentals of our current system of government. American history is British history, and British history is English history.
There are two compelling quotes from Sir David Lindsey Keir’sThe Constitutional History of Modern Britain that illustrate the ancient origins of the separation of powers and their slow evolution, an evolution that was ongoing until the American founders stopped it, locking it down with a written constitution. The first quote starts with the problem all governments face, raising revenue. (The particular section I am quoting from is about the Tudor revolution in government beginning at the time of Henry VII’s reign in 1485.)
The maxim that the king shall live of his own, which had been recognized as fundamental in the Middle Ages, was fulfilled in practice. Its corollary, that all other levies on the subject’s property must be the matter of parliamentary consent, was not denied . . . for extraordinary expenses recourse to Parliament was generally unavoidable.
Two things stand out here. First, far from being a recent creation, the practice of getting permission from subjects for taxation extends back to the Middle Ages. The phrase “no taxation without representation” was a cry of protest against what the colonists saw as a change from the norm. It was a plaintive cry to do things as they had always been done, in effect, an affirmation of the English constitution. Americans, however, generally regard the phrase as a revolutionary one, a call for a fundamental shift from the status quo. That’s bad history.
The second important implication of this passage from Keir is that the legislative “branch” was already quite distinct by the late 15th century. In fact, its history extends even further back than that, to the 13th century when the first parliament was formed by Simon de Montfort. The evolution of the legislative function is complex and continuous, but clearly by the 16th century it was distinct, separate, and powerful even though that power was qualitatively and quantitatively different than our own federal legislature. Nevertheless, the Parliament was a force to be contended with by any inhabitant of the English throne. And later, in the 17th century, the Parliament would wage war against their own king, behead him, and abolish the monarchy replacing it with a commonwealth, more than a century before American colonists even had a thought to dump tea in Boston Harbor or the French stormed the Bastille.
Simon de Montfort, Father of Parliament (1208—1265)
What about the judicial branch? Here is a second interesting passage from Keir, again re
ferring to the Tudor period:
In any case, the Common Law in which judges were bred . . . preserved, by its insistence on the principle that government must be conducted according to law, an independence of temper which prevented undue subordination to the executive.
An independent judiciary is often cited as a hallmark of American democracy and a result of the separation of powers the invention of which is so often inaccurately ascribed to our founders. An independent judiciary is a principle of government and law woven tightly into the fabric of the Common Law. The idea that there should be a rule of law not men is ancient, and the necessity of having judges that are not beholden to the executive is just as old. An independent judiciary is an idea enshrined in the American Constitution but not an innovation created by it. And once again, the document reflects the effort of the founders to keep and codify, not overthrow, the system under which they were previously governed.
Defender of the Rule of Law, Edward Coke (1552—1634)
What is true about the legislative function of the English constitution is true of the judicial function. It was already quite distinct by the Tudor period, 1485-1603. In fact, efforts to ensure an independent judiciary against the innovation of absolute monarchy by the Stuarts, found its greatest voice and champion in Edward Coke (pronounced Cook) who put himself out of favor (and in jail) with the King when he argued for the rule of law not men. The evolution of the judiciary, too, is complex and continuous, but as early as the 12th century and certainly by the 13th with Magna Carta, the basic principles of due process under the law were already accepted. While the judicial system of Stuart England was not like our own, Coke argued that the king could not interfere with free, full, and speedy justice for the accused—including the accused person’s right to know why they are being accused and to participate in their own defense. The rights of the accused and an independent judiciary were, in Coke’s view, anchored in ancient legal precedents predating even Magna Carta. The truth is that English judges and legal scholars were dispensing justice and establishing the rights of the accused centuries long before the days when Columbus set sail to find a trade route to India.
So the principle of separation of powers is not an American one but thoroughly English and attributing it to the creative process leading to America’s constitutional document is wrong. Much has been made of the wisdom of the founders in establishing “checks and balances” and indeed it was wise to a point. But it was not an innovation, nor was it inspired. Rather it was recognition that the revolution was a tear in the constitutional fabric that needed a rationale (the Declaration) based on natural rights and a quick mending (the written constitution) by reaffirming the basic principles of the English constitution. The founders realized what they had done by breaking free from English governance and therefore took steps to ensure the continuity of the English constitution as they knew it.
Returning to our own century, it’s clear that the founder’s project has, in the longer term, confined the further development and adaptation of the basic and ancient principles most of us hold dear to our modern circumstances. By locking us into a written constitution, the founders ensured the life of the United States at least through its childhood and early adolescence. But as the country matures, the deification of the document is crippling our ability to address 21st century needs.
(It is worth noting that the founders were no more uniform in their view of what our constitution means than we are today. Among their number were outright republicans who believed in something closer to absolute democracy. Other founders were much more conservative in their views, feeling much closer to the British form of government. These divergent views would tear them apart during and after the French revolution, with some favoring the revolution and others seeing it as mob rule).
There is absolutely no reason to believe that the principle of separation of powers as it was conceived of in the late 18th century is, by itself, a principle needed to ensure good government. That particular arrangement was fleeting, but the founders—perhaps with a combination of pragmatism and self congratulation—have tethered us to it permanently. Sentimental ties to our written constitution are made even tighter by patriotism and the elevation of the founders and their documents to the status of apostles and gospels respectively.
Separation of powers—an independent judiciary, legislature, and executive—can look different than our current system. Do we need separate state governments? And what guarantees does the Bill of Rights afford us that aren’t already provided by common law? Some founders worried that writing down certain rights would actually be dangerous. “Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?” wondered Alexander Hamilton, in Federalist 84. Now, with our written constitution, the “originalist” school of law can take hold. Espoused by people like Justices Scalia and Thomas, the “orginalist” view is dependent on an obsessive focus on our written constitution to the exclusion of 1000 years of legal precedent. The left has its “originalist” sects as well.
Step away for a moment to consider the broader sweep of the history of the English constitution. We should have more confidence in our principles of government than in a static document. For example, in Great Britain today there is no separation of church and state. We eliminated the Church as one of the “estates” for reasons that were understandable in the 18th century. But would anyone argue that the lack of separation of church and state in modern Britain makes them any less free that we are? Does the fact that the Queen is head of both state and church make the United Kingdom a theocracy? Why not?
It’s because the English constitution has evolved. And in the United Kingdom today, most executive authority resides with the Prime Minister, who is a member of the legislature. Has that formation harmed the liberties of people in the United Kingdom today? In fact, 12 out the top 25 countries rated most democratic by the Economist in its Democracy Index are constitutional monarchies, including top-rated Sweden.
A lengthy quote from Keir is helpful in closing this point, or you can watch this video if you prefer:
Continuity has been the dominant characteristic in the development of English government. Its institutions, though unprotected by the fundamental or organic laws w
hich safeguard the “rigid” constitutions of most other states, have preserved the same general appearance throughout their history, and have been regulated in their principles which can be regarded as constant. Crown and Parliament, Council and great offices of state, courts with their judges and magistrates, have all retained, amid varying environments, many of the inherent attributes as well as much of the outward circumstance and dignity which were theirs in the medieval world of their origin. Yet continuity has not meant changelessness. Ancient institutions have been ceaselessly adapted to meet purposes often very different from those for which they were originally intended, and have been combined in apparent harmony with new organs of government devised to meet requirements which have manifested themselves only as society has developed the intricate patterns of modern life. The very flexibility of the constitution has ensured that the process of modifying and adding to it has involved no sudden and capricious breach with the past. In the English constitution, to adapt a picturesque phrase, the centuries have “given one another rendezvous.”
Although we declared our independence from Great Britain in 1776, we did not and cannot with historical accuracy declare our independence from the English constitution. It is the ground under our feet. However, by elevating our founders to the status of gods and turning our constitutional documents into totems we have severed ourselves from the benefits of the flexibility Keir refers to, a flexibility that could allow us to better address 21st century problems with the benefit of ancient principles of government.
In conclusion, I suggest that one important reason our country is struggling to take bold action on issues like health care and climate change is not only a political or cultural problem but a constitutional one. We are over two hundred years behind the rest of the English speaking world which has greatly evolved their understanding of how a constitution can ensure freedoms, effective government, and be flexible. We need to start catching up.
Resource note: An important resource for all things constitutional is the Founder’s Constitution, a multi-volume compendium of the hundreds of historical and contemporary documents related to the development and writing of the constitution. The online version is searchable and a great tool and there is also a Facebook page.
Photos: Picture of Simon de Montfort from Flickr Photostream of FlickrDelusions, Picture of Simon de Montfort courtesy of Flickr user FlickrDelusions under a Creative Commons license. St Andrews church, Old Headington, Oxford.
Images of Montesquieu and Coke are from Wikipedia Commons.
Image of US Constitution from the National Archives of the United States.
david best
The Constitution is doing exactly what the founders intended—hamstringing your lust for absolute power. It’s not too weak, but too strong to your liking. See you at the Supreme Court.