Econlib

The Library

Other Sites

 Front Page arrow Titles (by Subject) arrow English Origins of America's Constitution - Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government

Return to Title Page for Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government

Search this Title:

English Origins of America’s Constitution - 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.


English Origins of America’s Constitution

“The American Constitution is distinctively English,” wrote Sir Henry Maine in his book Popular Government (1885). Why should the Americans of 1787, so recently at war with Britain, have drawn up a constitution incorporating among its principal features institutions and principles long established in England? Because they, like their ancestors, were familiar with those British constitutional features and found them desirable; also because colonial charters and the constitutions of the Thirteen States had been framed on the British model, for the most part, and Americans had grown accustomed to their operation. Besides, the great majority of American citizens were British citizens who spoke English, read English books, enjoyed “the rights of Englishmen,” and participated in a culture basically English.

There are, of course, a number of important differences between the English and American constitutions that should be understood. As we noted earlier, the English Constitution is not a “written” constitution. That is, it is not contained in any single document like the American Constitution of 1787. It consists, rather, of (1) certain charters and statutes that are regarded as part of the fundamental law, (2) principles derived from the common law, and (3) a great variety of political and legal customs and traditions. Statutes that enjoy a constitutional status are those which deal with the distribution and exercise of power, and those which guarantee certain freedoms. Three great political documents which are essentially compacts or agreements between the Crown and the Nation (the people and their representatives) stand out as prominent landmarks in English constitutional history. These are Magna Charta (1215), the Petition of Right (1628), and the Bill of Rights (1689), which constitute, in the words of the great parliamentary leader Lord Chatham, “the Bible of the English Constitution.” Many of the individual rights guaranteed in these documents, as we shall later observe, reappear in our first State constitutions, in our Federal Constitution, and in our Bill of Rights. The “law of the land” clause in Magna Charta, for example, which later came to be known as “due process of law,” will be found in the Fifth and Fourteenth amendments of the United States Constitution. Magna Charta is often regarded as the foundation of Anglo-American liberties, because it established the principle that all Englishmen, not just the Lords, are entitled to personal liberty, and that no man, including the King himself, is above the law.

Another and actually more fundamental difference between the English and American constitutions concerns the question of sovereignty. Sovereignty signifies the highest governmental or legal authority. Under the English Constitution, legal sovereignty resides in Parliament. Parliament, in other words, is supreme, and its authority cannot be challenged by the Crown or the judiciary. There is no supreme court, as in the United States, which has the right to declare an act of Parliament unconstitutional. Parliament decides for itself whether its laws are constitutional. Throughout British history, and particularly during the American revolutionary period, certain statutes were challenged on the ground that they were “unconstitutional.” American political leaders, for example, claimed that the Stamp Act, imposing a tax, was “unconstitutional.” By this they meant that in their judgment the statute conflicted with basic English liberties and should be repealed. Their appeal was to Parliament, because the English courts did not have jurisdiction over such a claim. By contrast, sovereignty in the American constitutional system is in the Constitution itself, which is declared to be the supreme law of the land. If a party claims that a certain act of Congress is “unconstitutional,” not only may he seek to persuade Congress to repeal the statute, but also he may be able under certain conditions to take his case to court and obtain a judicial ruling on the question.

The English and American political systems are also distinguishable on the basis of separation of powers. The English have a parliamentary system of government, whereas the Americans have a presidential system. Under both systems, the functions of government are separated into legislative, executive, and judicial branches, but there is no clear separation of personnel under a parliamentary system. The real executive in the English system is not the King but the cabinet, which is made up of the King’s ministers. Members of the Cabinet, however, also hold a seat in Parliament. The Prime Minister, for example, actually holds a seat in the House of Commons (the lower house) and is the leader of the majority party of that body. The President of the United States, on the other hand, is more independent of the legislature. He is elected by the nation at large, not by the members of Congress. He may actually be a member of a political party that is in opposition to the majority party in control of one or both houses of Congress. Unlike in the English system, members of the House of Representatives and Senate are forbidden by the Constitution from serving in the executive branch. How and why the Americans departed from the English example of separation of powers will be the subject of later discussion.

In many other ways, however, the two constitutions are quite similar, and the British influence may readily be discerned. Congress and Parliament are bicameral legislatures, consisting of two houses. Members of the House of Commons, like those of the House of Representatives, are elected from single-member districts for relatively brief terms. A speaker presides over both chambers, though the speaker of the House of Commons is a neutral figure who does not vote or participate in the proceedings. Both houses are regarded as the “lower” houses and have many more members than the “upper” houses. Because they are subject to more frequent elections and represent a smaller constituency, the members of the House of Commons and the House of Representatives are also commonly regarded as “closer to the people.” The House of Lords has ceased to function as an independent body equal to the House of Commons, and nowadays is quite unlike the powerful United States Senate. In 1787, however, there were some similarities. Although the Senate was established to represent the several States rather than an American “nobility,” both the Senate and the House of Lords were regarded as smaller, more exclusive bodies that would serve as a moderating influence on the more populous lower houses. Both were free of direct popular control; many (but not all) members of the House of Lords held their seats by inheritance, and Senators were elected by the State legislatures rather than by the people. Bicameralism was thus favored in both England and America as a device for restraining the legislature. By representing different constituencies, with different interests, in two chambers instead of one, no single interest or single class, it was argued, would dominate the entire legislative branch.

Likewise, the Federal judicial system adopted by the Framers in 1787 bore the stamp of the English Constitution. Under both constitutions, the judiciary has been established as an independent branch, largely though not completely free of legislative and executive control. The judges are appointed by the executive for unspecified terms, remain on the bench as long as they exercise “good behavior,” and may not be removed from office except by impeachment. Their salaries may not be reduced by the legislature while they serve. This strengthens their independence by preventing an angry legislature from attempting to influence the judicial process through manipulation of judicial salaries.

In many other ways, American constitutionalism, written or unwritten, is rooted in British practices and customs. Almost without exception, all of the individual liberties, including political liberty and the right of property, that are guaranteed in the Federal and State constitutions may be traced to English precedents. Representative government, or what we call the republican tradition, is the bedrock of American constitutionalism. But it is a tradition inherited from Great Britain, and American revolutionary leaders generally regarded the right of representation as the most fundamental right they possessed. To be sure, a principal constitutional grievance of the colonists was the lack of American representation in Parliament—“taxation without representation.”