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The Challenge of Parliamentary Supremacy - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government [1989]

Edition used:

Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


The Challenge of Parliamentary Supremacy

Though not always clearly perceived in England or in the colonies, the English Constitution, it may thus be seen, had changed much since the time of Charles I, and there were often conflicting precedents. The constitutional conflicts of the early seventeenth century centered around a struggle for power between the King and Parliament, whereas the American revolutionary struggle pitted the American colonists and their provincial assemblies against Parliament. The supremacy of the King had been displaced by the supremacy of Parliament, and it was a complicated and confusing task to sort out the arguments against one form of supremacy and apply them to the other. This much the colonists did know: that a legislature could be just as tyrannical as a king, and that in fact it was often more difficult to deal with an entire assembly of tyrants than with one. The reign of Oliver Cromwell following the execution of Charles I in 1649 plunged England into a state of despotic rule that far surpassed the excesses of the Stuart kings and taught the Anglo-Americans the hard lesson that unchecked power can lead to tyranny no matter who wields it.

As we noted earlier, the Glorious Revolution of 1688–89 was an important turning point in English constitutional history. As a result of this bloodless revolt against the monarchy, Parliament became the real sovereign of Great Britain, and parliamentary supremacy became a permanent fixture of the English Constitution. The system adopted was, in effect, a limited or constitutional monarchy. England would thereafter be governed by Parliament and its leaders, or what the English call “the King-in-Parliament” in recognition of the monarch’s titular sovereignty. Parliamentary sovereignty was formally established in the famous Act of Settlement of 1701, which confirmed the right of Parliament to determine the line of succession to the throne. The English Constitution, it must be kept in mind, clings to the legal fiction that it is the “King (or Queen)-in-Parliament” that rules the nation, when in reality the monarch is little more than a figurehead. American revolutionary leaders understood this; and although the grievances against Great Britain enumerated in the American Declaration of Independence in 1776 are directed against King George III, almost everyone on both sides of the Atlantic understood that it was the supremacy of Parliament, speaking through its leaders (the “King’s Ministers”), that was actually being challenged. King George was no innocent bystander, to be sure, but the man in charge was Lord North, the Tory leader of the majority party in Parliament.

During the eighteenth century, it should be noted, there were two political parties competing for power in Parliament, the Whigs and the Tories. These parties came into existence as a result of the constitutional and religious struggles of the seventeenth century, and by 1680 the names Whig and Tory were commonly used to designate respectively those members who opposed the Stuart claim that sovereignty resided exclusively in the Crown and those who supported it. The Whigs found support for their constitutional theories advocating a limited or constitutional monarchy in the writings of John Locke, whereas the Tories tended to rely on the works of Sir Robert Filmer, Thomas Hobbes, and the proponents of royal absolutism to support a doctrine of non-resistance that favored a strong monarchy. The Whigs emerged victorious in the Revolution of 1688 and were able to dominate Parliament until 1760.

In 1763, a new Tory government began enacting “tax reform” legislation designed to tighten the control of the mother country over the American colonies and to increase revenue. These reforms, altering the constitutional relationship between Great Britain and the colonies and weakening the political rights of the colonists, led directly to the American Revolution. The King, the King’s friends, and some Whigs must share the blame with the Tories, however, in causing the colonial rebellion.

There were many British who joined with the Americans and agreed with colonial leaders that Parliament had overstepped its bounds. Though a monarchist, the great English jurist and legal scholar Sir William Blackstone sided with the Americans in the great constitutional debate between the mother country and the colonies. So too did a number of Whigs in the House of Commons, especially the Irish statesman Edmund Burke, who became the most ardent champion of the American cause. Burke’s eloquent speeches were widely read in the American colonies, and his constitutional views had a powerful impact on the American mind. So popular was Burke in America that in 1771 the New York Assembly hired him to represent the colony and defend its interests as its London agent. As a result of his leadership in opposing the doctrines of the French Revolution, Burke would later become the principal architect of the conservative political tradition that came into being in the next century, and the founder of a political movement in Great Britain that led eventually to a major party realignment in which the Whigs and Tories were supplanted by the Liberal and Conservative parties.

In his celebrated Speech on American Taxation (1774), Burke assailed the repressive tax measures enacted by Parliament in retaliation for the Boston Tea Party. The King’s ministers, he charged, had taken the principle of legislative supremacy beyond its constitutional limits. “Revert to your old principles,” he said, and seek peace with the Americans. “Leave America, if she has taxable matter in her, to tax herself.” If parliamentary sovereignty is not reconciled with freedom, he warned, the Americans “will cast your sovereignty in your face. Nobody will be argued into slavery.”

More powerful yet was Burke’s Speech on Conciliation with the Colonies (1775), in which he pleaded for moderation and restraint and warned his colleagues that they had seriously underestimated the Americans’ love of liberty. “This fierce spirit of liberty,” he observed, “is stronger in the English colonies … than in any other people of the earth. … They are therefore not only devoted to liberty, but to liberty according to English ideas and on English principles.” They will not rest until they are given an “interest in the Constitution” and representation in Parliament on an equal basis with other British subjects. Equal representation, he reminded the House, is “the ancient constitutional policy of this kingdom,” and without it there can be no equity or justice in taxing the colonies. Blinded by power, believing they could crush the American insurgents, Lord North and his ministers, as well as most members of Parliament, ignored Burke and his small circle of Whig supporters. Within weeks, the first shots of the war were fired at Lexington and Concord. History, of course, proved Burke right, and as a piece of political and constitutional wisdom his famous Speech on Conciliation has endured down to our time.