Towards Imperfection

When we were at university together, James Philips and I rehearsed for the play Rosencrantz and Guildenstern Are Dead, Tom Stoppard’s play-behind-the-play. Philips played Rosencrantz, who says, upon discovering that Hamlet has given the feckless couple the slip, “Be happy—if you’re not even happy, what’s so good about surviving?” In his first book, Philips has set out to explain the great constitutional project undertaken by the North American colonists of Britain to secure the happy future that his character demanded. In doing so he has brought to bear a lawyer’s concern to discover those foundational aspects of the earlier British constitutional settlement that lay behind the drafting of the Constitution he describes as including brilliant and revolutionary innovations that created a “tyrant-proof” system of government properly based on popular sovereignty.

This is an important inquiry. It might be going too far to say, as Geoffrey Robertson does on the back-cover blurb, that connections between English constitutional history and the US Constitution are “hitherto unrecognised”, but the influence of English republican thought on the foundation of the United States of America is not generally taken into account in assessing the spirit of America’s brand of democracy and the achievement of the Constitution.

Philips surveys the history of government in England and in the American colonies, industriously laying out the origins of Parliament, the milestones achieved in the erosion of monarchical power by the Petition of Right to King Charles I in 1628, by the regicide Commonwealth and Protectorate, and the Glorious Revolution of 1689:

The constitutional changes introduced during the English Revolution established Parliamentary supremacy in England and made it unlawful for any future English monarch to exercise tyrannical power.

These events had direct effects on the North American colonies, some of which also revolted during the English Civil War, and whose people came to assume the primacy of liberty (especially liberty to trade) over monarchical and aristocratic power. Importantly, the Lockean principle that a people were entitled to rebel against a tyrant and insist on a state based on popular sovereignty received plastic form in the arrangements put in place under William and Mary. On a more prosaic level, relevant to the colonists was the guarantee of no taxation without representation. 

There is a very useful excursus on the founding charters of the colonies, the limited law-making powers of the colonial authorities, and extensive freedom from taxation and interference, and the higher standard of living enjoyed by the colonial population until the 1760s when King George III sought to have the colonies contribute to the costs of the Seven Years’ War. By this point the colonists expected constitutional protections against being treated by the King as a resource to replenish the Treasury coffers, so they rebelled.

The revolutionary war effort suffered under the weak confederation and its Continental Congress. The confederation had no independent legal status and no power to tax the colonies and enforce payment. Congress had executive power only when it sat, because then all the delegates of its constituent states were present. But even then its resolutions were not complied with—the 1776 Congressional directive for the states to raise an army of 75,000 men was only complied with to the extent of 28,000 men by 1777. Congress failed to provision and arm the Continental Army adequately throughout the war, and it printed money and issued IOUs which rapidly lost value as a currency. These weaknesses later influenced the emphasis of the framers on a strong executive in the Constitution.

It is important to distinguish between the Declaration of Independence of 1776 and the actual working Constitution itself. The Declaration, as Philips says, is a beautifully written document possessed of inspiring language and aspirational intent that would have pleased Rosencrantz, but it is not the functional program of government, and Philips does not spend much time on it. Nor does he dwell overly on the Bill of Rights of 1789, incorporated by amendment into the Constitution at the request of the Virginians (100 years after the English Bill of Rights) and as something of an afterthought, but also intended as a further protection against the executive and legislative power.

How and why did the Constitution depart from the British constitution? Philips answers this question, in summary:

The principal changes required for the new Constitution were that the new system must have no monarch and no hereditary aristocracy; that it must be partly national and partly federal; and that it must be more democratic than the British system.

But the members of the Convention of 1787 still thought that the monarch should be replaced by a President who acted as both the executive head of government and the head of state, with the power to appoint unelected ministers, set up in competition to Congress, and invested with his mandate from the people.

Colonies have a habit of being a generation behind in adopting the progressive reforms of their mother countries, and an arguable result of the precocity of the Constitution is that its authors were too focused on the theoretical protection of liberty from a tyrannical monarchy to notice the practical innovations in responsible governance in Britain under the first de facto prime minister, Sir Robert Walpole, through to Lord North, between 1742 and 1782.

Thus it might have been less than perceptive. The Constitution was framed at a time when cabinet government in England had become well established as a conventional system of efficiently combining the executive and legislative arms of government, mostly to the exclusion of the King, thereby providing accountability of the executive to Parliament. On the evidence of Philips’s book, the supremacy of Parliament and the increased responsibility of the executive to Parliament in Britain were innovations not properly understood by the American colonists. The tyranny of distance placed inevitable limitations on their imaginations, despite the erudition of people like Gouverneur Morris, Jefferson, Madison and Hamilton. Jefferson and Franklin had shot their bolts on the Declaration. Madison and Hamilton had spent their adult lives in America. Their erudition was all in Locke and Montesquieu, not in Horace Walpole’s letters. They were determined to overcome the parochial weaknesses that led to the chaos in supply during the Revolution by establishing stronger executive power in a federal government, but also obsessed with avoiding what they perceived to be the overweening power of the King by insisting on a literalist separation of powers to restrain majoritarian or executive tyranny. The system was intended to create competition between all three arms of government, with, as Philips notes, “cumbersome consequences”.

The result is what could be termed a form of “irresponsible” government which, having distributed the mandate of popular sovereignty between the two separated institutions of Congress and the President, is vulnerable to the sort of deadlock and stasis America has suffered under Obama and Trump. Philips does not explore in detail why the Americans missed the bus on responsible government, or the consequences this has had in American politics. That was not his avowed mission, which overtly ends with “the Revolution secured” in 1789. It is also true that, not unlike the entrenchment of the Australian Constitution, an inability to make uncomplicated ameliorative constitutional change has resulted in a time-capsule constitution, open to vested interests manipulating the status quo to their own advantage.

The book’s exploration of the influence of the British constitution, and the deliberate departures from it, invites the obvious question of whether the Constitution has facilitated the pursuit of greater general happiness in America. The further inquiry is important because the inspiration for missionary American imperialism, and the dismissive view Americans often have of foreign cultures and systems, with sometimes devastating consequences, are in large part due to the long-standing exceptionalism accorded to the Constitution of 1787-88. Americans imbibe from their earliest schooling the mythology that the Constitution was a radical and inspired departure from the oppressive governmental arrangements of the Old World, a guarantee of the global gold-standard for freedom and democracy. This faith seems unshakeable and has political consequences—a complacent apathy at home, and an often destructive zeal abroad. A more realistic assessment of the Constitution as instituted by the Convention of 1789 might encourage the US not to act as if it owned the patent on the practice of freedom and democracy.

Philips acknowledges that the Constitution is not perfect, in particular because it failed to abolish slavery, which he explains was simply not a realistic option given the economic dependency of the southern colonies on slavery. He notes that the President is not subject to question-time or no-confidence motions, and that the deadlocks over supply legislation when the houses of Congress, or Congress and the President, do not agree, threaten governments with bankruptcy with no constitutional remedial mechanism.

The Constitution has several further debilitating features apart from the lack of accountability of the executive to the legislature: the spoils system under which the President directly appoints many public officials, from the Secretary of State down to postal officials; the inferiority of Congress as a legislative body, leading to its insipidity in not taking the legislative initiative; the tendency of Congress, sometimes even when the party of the President controls it, to block the President’s legislative program mandated by the people; the indiscipline of members of Congress, who often see their role as being available to serve commercial and local interests instead of serving the commonwealth interest; the progressive separation of the Presidential office from the rest of the executive; the deification of the President by reason of his combining the offices of head of government and head of the executive; and the politicisation of the judiciary.

The Constitution has operated at its best when the President and the leaders in Congress have not competed as it dictates, but when they have been able to sit down around a table and thrash out an agreement on legislation, as President Johnson was able to do to secure passage of the civil rights laws in the 1960s. But there is no structural impetus for them to do so. The Constitution is a purist and cynical document, which does not facilitate a role for personal collegiality and communal accountability, somewhat reflective of the devil-take-the-hindmost morality of American life in general.

Philips writes in simple, clear prose, a monument to a professional life spent drafting documents according to the rules of Plain English. The style is at times even Gen Y. The Declaration of Independence, for example, “unfriended” George III. Dr Martin Luther King’s speech “I Have a Dream” is “uber-famous” and habeus corpus “morphed” from being a prerogative of the King to protection of the subject. This use of language would not prevent, and would probably enhance, the book’s use as an excellent primer for political history studies in schools and universities.

The book’s importance is, as Carol Berkin, Professor of History at City University of New York, states on the back cover, that it offers a well-deserved blow to the exceptionalism I referred to earlier. It is always valuable to reveal the history of political ideas over time, in this case giving a deep context to the Revolution of 1776 and the achievement of an independent nation with its own written Constitution, instead of the starting point being the Constitution itself as a fait accompli of American genius. Even though Philips sometimes takes a rosy view of the quality of the Constitution and does not, perhaps, despair sufficiently over its significant faults, his book launches one into that debate with a felicitous preparation.

Two Revolutions and the Constitution: How the English and American Revolutions Produced the American Constitution
by James D.R. Philips

Hamilton Books, 2021, 179 pages, $30

Matthew White SC is a barrister working in Sydney and Hong Kong

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