II. The State of the Argument on the Causes of the American Revolution

On the fiftieth anniversary of the Declaration of Independence, the mayor of Washington, DC, Roger Weightman, read to the assembled celebrants a letter from Thomas Jefferson, who that day lay dying at his estate outside Charlottesville, Virginia, not far from Washington. In the letter, Jefferson attempted to capture for his fellow Americans, and for the entire world, the meaning of the American Revolution: it signaled that “all eyes are opened or opening, to the rights of man.” Since the Declaration of Independence, the document being celebrated that very day, gave prominent place to the “unalienable rights” for whose sake “governments are instituted among men,” Jefferson's identification of the meaning of July 4, 1776, has prima facie plausibility.¹

Yet the experts in such matters have not been so sure. Progressive historians, most famously represented by Charles Beard and dominant in American historiography during most of the first half of the twentieth century, thought that the Revolution and founding were much more about economics and class interests than the rights of man. Consider the outspoken judgment of economic historian Louis M. Hacker:

The economic interpretation of the Revolution led historians to judge statements like Jefferson's as largely superficial ideological statements, masking the more fundamental economic and social roots of the conflict. As the eminent colonial historian Edmund S. Morgan summarized the views of the Progressive historians, “The social and economic interpretation … shows [the revolutionary leaders] as hypocrites pursuing selfish interests while they mouth platitudes about democracy and freedom…. [T]heir insistence on freedom and equality is shown to be insincere.”³

Morgan himself, with his book The Stamp Act Crisis (1953), and after him Bernard Bailyn, with his The Ideological Origins of the American Revolution (1967), fostered the reorientation of thinking away from the economic approach and toward an understanding of the revolution that gave far more weight to the opinions, theories, and principles of the actors in those events.⁴

Neither Morgan nor Bailyn nor most of their followers quite revived Jefferson's view of the meaning of 1776, however. Morgan's very valuable research focused attention on the constitutional dimension of the struggle. Colonial constitutional arguments had been discounted in the era of Progressive historiographical domination, because, it was said, the colonists in fact did not take a consistent position on the constitution, but instead engaged in a series of ad hoc adjustments to each shift in British imperial policy intended to appease the formerly pressed colonial objections and concerns. In other words, it did not appear to progressive historians that the Americans had a consistent constitutional theory or that their constitutional arguments were sincere statements of their views, but rather special pleadings gotten up for changing occasions, largely having the character of rationalizations for positions adopted for other reasons. Thus Carl Becker concluded his survey of colonial constitutional argumentation: “[S]tep by step, from 1764 to 1776, the colonists modified their theory to suit their needs.”⁵ Moreover, it was said by most of the Progressive historians, the colonists' constitutional arguments, as constitutional arguments, were not very solid.⁶

Morgan demonstrated, to the contrary, that from the time of the protest against the Stamp Act onward the colonists put forward a consistent constitutional position, possessing all the earmarks of a theory in which they truly believed and in terms of which they acted. Admittedly, this constitutional theory underwent a process of refinement and development, but on the main point—whether Parliament could tax the colonies in any way—the Americans from the outset were agreed that Parliament could not do so. They therefore did not, as charged, slyly shift their grounds as Britain attempted to accommodate them. For the most part, Morgan attended to the constitutional arguments and the rights the colonists claimed as Englishmen, not those they claimed as men. He does note from time to time how colonial spokesmen such as James Otis ran these two kinds of rights together, but on the whole Morgan did not give us a picture of the Revolution quite like Jefferson's.

Bailyn, writing in 1967, about a decade after Morgan, had an even larger impact on thinking about the Revolution. He embraced the term “ideology,” but meant by it something different from the epiphenomenal set of beliefs that para-Marxist Progressive historians had in mind. Like Morgan, he wanted to call attention to the causal importance of the colonists' beliefs and opinions—their ideologies. He did not look to their constitutional thinking so much, however, as to a system of thought he identified with the English Whig opposition, that is, with those Whigs who stood in opposition to the Whig administration of Robert Walpole during the early eighteenth century. This was much less a legal/constitutional style of thought and much more political in character. The main theme that Bailyn presented as an almost paranoid approach to politics was the notion of power against liberty: liberty is always endangered by the depredations of those in power, who, as often as not, conspire against the liberty of those they rule. The colonists, Bailyn argued, viewed the events of the 1760s and 1770s through lenses of this sort, and thus were quick to see evil intent in the policies of the British administrations. Bailyn's approach to the revolution quickly joined with other strands to produce the now well-known “republican synthesis.” As sponsored by scholars such as Gordon Wood and J. G. A. Pocock, this “republican synthesis” emphasizes themes of classical republicanism, tracing back to Aristotle and Machiavelli, rather than the themes of Lockean liberalism more frequently noted in American thinking before the emergence of the new republican historiography.⁷

As with Morgan, the “rights of man” play a role in Bailyn's account, but by no means so central a role as they do in Jefferson's assessment of the Revolution. They play even less of a role in the republican synthesis, which identifies political ideologies of an anti-rights orientation: not individualistic and modernist natural rights, but communitarianism and classical republicanism—the duties of man—form the core of the republican synthesis.⁸

Both the Morgan- and the Bailyn-inspired lines of interpretation have thrived in the decades since these two scholars put forward their main theses. In my book The Natural Rights Republic (1996), I have reconsidered at some length the republican synthesis and made a case for taking Enlightenment natural rights commitments more seriously than the synthesizers do, and for seeing the commitment to republicanism of the American founding generation not as a classically inspired alternative to the natural rights/social contract philosophy, but as an implicate of it. The same is true, I will argue, of the constitutional arguments of the Americans; they, too, are implicates of the natural rights/social contract philosophy.

Many fine scholars have followed along Morgan's general line and have extended his argument in important directions. Two are particularly worth mention here, for they form the immediate backdrop for my argument in this essay. Jack P. Greene, a political historian, and John Phillip Reid, a legal historian, are the two who have most energetically carried forward inquiries into the constitutional issues of the American Revolution. Both Greene and Reid retain Morgan's emphasis on the seriousness and sincerity of the Americans' constitutional commitments. Thus Greene titled one of his essays “The Ostensible Cause Was … the True One: The Salience of Rights in the Origin of the American Revolution.”⁹

(The rights he has in mind are the “rights of Englishmen” rather than natural rights.)

Greene and Reid go beyond Morgan in a number of ways, however. First, they do not limit themselves to the constitutional issues surrounding the Stamp Act; both cover the full range of events and issues culminating in the Revolution. Second, more than Morgan, they validate the colonists' position as constitutionally correct, or at least as constitutionally defensible. Third, they have a more fully worked out notion of wherein constitutional correctness lies. Greene, Reid, and a handful of other scholars argue to the second point that the imperial constitution was not as settled as the Progressive historians who dismissed the colonists' position as patently untenable would have us believe. Although the British were operating with an evolving theory of the constitution that emphasized parliamentary sovereignty, this new constitutionalism was an innovation and was by no means so well established that it ruled out of court older constitutional ideas such as those the Americans asserted. The legitimacy of the American position was especially defensible in light of what Greene and Reid identify as the prevailing criterion for establishing constitutional legitimacy: “[T]he source of the authority underlying both the seventeenth century English constitution, and the contemporary American constitutions was custom.”¹⁰

In general, Anglo-American constitutionalism was one of usage and custom, ultimately bespeaking a form of consent by the parties affected by the constitutional arrangements. The colonists had a strong case that custom and usage favored their claims regarding the limited or nonexistent powers of Parliament in America and, more importantly perhaps, their “claim that rights established through custom ‘were beyond modification by Parliament’ as well as by the king.”¹¹

Despite Greene's and Reid's very friendly assessment of the colonists' case, this recent wave of scholarship still remains distant from Jefferson's assessment of the Revolution. The scholars affirm that the Revolution was about rights, of course, but the “rights of Englishmen,” not the rights of man. Reid is quite dogmatic, in fact, in depreciating the Jeffersonian reading of the Revolution: he once published an article titled “The Irrelevance of the Declaration [of Independence].”¹²

Reid does not literally mean that the Declaration was “irrelevant” (although he identifies other documents as more authoritative and significant), but he means that its natural rights philosophy was irrelevant. That is, he thoroughly contests Jefferson's assessment. According to Reid, “the British Constitution, not Locke [and the natural rights philosophy] supplied the American Whigs with their theoretical motivation.”¹³ Greene, to the same effect, affirms that the Anglo-American dispute was “essentially a constitutional one pitting opposing interpretations of the colonial position in the imperial order.”¹⁴

More important than their disagreement with Jefferson's retrospective (1826) interpretation of the meaning of the Revolution is the fact that the Greene/Reid view fails to take sufficient account of what the patriots were actually saying before and during the Revolution itself. It thus fails to capture the true theory of the colonists and is of little help in understanding the natural rights amalgam, which got so firmly planted in the soil of the American political culture at this formative moment. I do not mean to contest the Greene/Reid emphasis on the constitutional dimension of the revolutionary conflict, but I do plan to challenge the way they develop their argument and many of their chief conclusions. In doing so, I mean to take as a point of departure the important set of distinctions that Greene has made more clearly than any previous writer on the subject. On Greene's account, there were “three sets of operative constitutions in the British empire: the British constitution, the specific constitutions of individual colonies, and the emerging imperial constitution.”¹⁵

I will focus my attention on the third—the imperial constitution itself. My claims are these: First, the American theory of the imperial constitution is more questionable from a traditional or customary perspective than Greene and Reid allow, a point that the Americans themselves concede with some regularity. Second, the natural rights philosophy figures decisively in shaping and validating the American version of the imperial constitution; it is true that the debate between the Americans and the British was in essence a debate about the constitution and not about natural rights, but the fact that the Americans read the constitution through natural rights/social contract colored glasses produced the version of the constitution to which they adhered. Third, the suitability of the natural rights theory to undergirding the American constitutional position was a central factor in the planting in America of the Lockean political culture to which, two centuries later, Rawls and Nozick appealed.

It is fairly widely agreed that there were three particularly good formulations of the American theory of the empire: Thomas Jefferson's A Summary View of the Rights of British America, dating from July 1774; James Wilson's Considerations on the Nature and Extent of the Legislative Authority of the British Parliament, dating from August 1774; and John Adams's Novanglus essays, running in the Boston press from January to April 1775. All three contain remarkably similar theories of the imperial constitution, and all three defend their theories in broadly similar ways.

III. The Natural Rights Amalgam as a Cause of the Revolution

The conflict leading up to the Revolution was indeed a battle over the true character of the constitution of the British empire. The British view was put with unusual perspicuousness in the Declaratory Act passed by Parliament in 1766, along with Parliament's repeal of the 1765 Stamp Act, which had attempted to lay a tax on various items of colonial commerce. The Declaratory Act stated unequivocally that Parliament “had, hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America, subjects of the crown of Great Britain, in all cases whatsoever.” The power to legislate “in all cases whatsoever” derives from the status of the colonies in America; they are “his Majesty's dominions in America,” and as such “have been, are, and of right ought to be, subordinate unto, and dependent on the imperial crown and Parliament of Great Britain.”¹⁶

The American theory of empire was almost the complete negation of the parliamentary theory: according to the American colonists, Parliament has the right to legislate for them in no cases whatsoever.¹⁷

Other than ties of blood and affection, the only legal link to Britain is through the King. The American colonies are connected to Britain and to each other, for that matter, only by virtue of having a common monarch. Parliament is no part of this link. The King enters into the constitutions of the separate American colonies just as he does into the British constitution. Just as the King-in-Parliament can legislate and tax in Britain, so the King-in-the-New-York-Assembly can legislate and tax in New York. The American doctrine led to the startling conclusion that George III was not only King of Great Britain, but also, individually and independently of Parliament, King of New York, Rhode Island, Virginia, Barbados, and so on. Likewise, the doctrine implied that the legislative assemblies of those entities were exactly on a par with the great British Parliament itself.

Although Americans today are familiar with constitutional indeterminacy from our own experience, we might still wonder how it could be possible that eighteenth-century British and American views diverged so markedly. The answer lies in three facts about the imperial constitution of the eighteenth century. We must recall, first, that neither Britain itself nor the empire had a constitution of the sort we normally think of, a written document with a designated body to interpret it authoritatively. There were written documents with constitutional status—for example, the Magna Carta (1215) or the Bill of Rights adopted in the wake of the Glorious Revolution (1688–89)—but there was a great open-endedness as to what documents counted as constitutional and how much unwritten customs and understandings counted; above all, perhaps, there was no clear process in place for effecting constitutional change and authoritatively pronouncing constitutional meaning.

The second fact of great importance was that the constitutional issues that arose in the course of the eighteenth century overreached whatever consensus on constitutional principles had been achieved at the end of the seventeenth century. That century had been, in effect, one long constitutional crisis that reached a political settlement in the Glorious Revolution and a constitutional settlement in the Bill of Rights. That settlement established the unquestioned presence of Parliament in the governance of the nation. The Bill of Rights established (or reestablished) that the King may not legislate, tax, dispense with or suspend the laws, or raise or quarter armies without the consent of Parliament. To properly appreciate the settlement of 1689, one must realize that the King was also part of Parliament, for his assent was needed for legislation. The constitutional order of 1689 mandates that governance is not to be by King alone, but by King and Parliament. Sharing of power between crown and Parliament is the keynote of the constitution. The Bill of Rights is thus very clear in establishing limitations on the power of the King acting alone, but says nothing whatsoever about limitations on the powers of King-in-Parliament. But the constitutional issues of the eighteenth century were precisely about that question: Were there limits to what the King and Parliament could do together?

Likewise, the settlement of 1689 concerned the governance of Great Britain itself, that is, the political entity over which the King reigned and which had representation in the British Parliament. The settlement was silent about the principles of governance of entities, especially colonial entities, outside that sphere. As John Adams said in a Novanglus essay, “[T]here is no provision in the common law, in English precedents, in the English government or constitution, made for the case of the colonies.”¹⁸

How the principles of the constitution were to apply to these entities, that is, to the question of the imperial, rather than the domestic constitution, is precisely what was at issue in the eighteenth century and precisely that about which the constitutional consensus as captured in the Bill of Rights had nothing to say.

The third key fact was that the colonies had been settled, and the terms of their relationship with the motherland had been originally undertaken before the Glorious Revolution. Indeed, in the early parts of the seventeenth century, the actual character of the domestic constitution was beset with great and fundamental unclarities, especially regarding the powers of the King and of Parliament. Many of these constitutional uncertainties were clarified over the course of the century, culminating in the constitutional settlement after the Glorious Revolution. But one question that was propelled into the eighteenth century was whether those changes effected in 1689 affected the relations with the colonies or not. The Americans tended to say no: they had not been consulted nor had they consented to those changes. The British tended to say yes. The entire governance of Great Britain was put on such a footing that the sovereignty of King-in-Parliament was now established. The King had no claims to independence of Parliament such as was implicit in the pre-1689 relations between King and colonies and in many of the documents, such as the colonial charters, on which the colonies rested.¹⁹

In brief, then, the three factors that made such deep constitutional conflict possible were the inherent character of the constitution, the uncertainty over how the domestic constitution should be extended beyond the traditional boundaries of Great Britain, and the historical change in the character of the constitution that occurred between the seventeenth-century settlement and the eighteenth-century conflict.

By far the longest of the three main defenses of the American constitutional position was Adams's Novanglus essays. Adams went longest not only because of his legendary volubility—his book A Defense of the Constitutions of Government of the United States of America was a three-volume affair written in response to a two-page letter by the French philosophe and political economist Anne-Robert-Jacques Turgot. Like his Defense, Adams's Novanglus was written as a response to another's writing, in this case a series defending the British constitutional position by a writer using the pseudonym “Massachusettensis,” now known to be Boston politician and lawyer Daniel Leonard. Some of Adams's great prolixity was due to his obsessive desire to address in one way or another every word of his opponents' texts, but more followed from his effort to supply a thorough consideration of the legal constitutional issues in their own terms, that is, in the terms of common law, custom, and usage that Greene and Reid would much later maintain were the sole constitutional methodology for discerning and construing the British constitution.

Adams attempted to demonstrate two propositions above all else in his long, thorough, and (it must be said) somewhat rambling and disorderly disquisition. First, he attempted to show that the constitutional status the British were claiming for America—a part of the British empire, subject to the sovereignty and control of the ruling British authority, Parliament—had no standing in the British constitution; that is, there was no such status in the constitution and, a fortiori, no such status could characterize the American colonies. Second, he attempted to show that the constitutional status he and his fellow Americans claimed for themselves (viewing the colonies as, in effect, parallel political communities attached to Britain and each other via a common King, but not through Parliament) was indeed a recognized status within the constitution.

Given their heavy emphasis on custom, usage, common law, and practice, the Novanglus essays are a good test case to demonstrate the strengths—and the weaknesses—of the Greene/Reid view of the nature of the prerevolutionary conflict. Just as they say, Adams put great weight on precedent; as a trained lawyer he put much weight also on legal technicalities, in which I will not follow him here.²⁰

The core of Adams's first argument is the claim that the common law, the repository of English law, recognizes no such entity as the “British empire”: “British empire” is “the language of newspapers and political pamphlets,” not of the law.²¹ The law recognizes no imperial powers in the British state either. According to Adams, there are, under the constitution, no “subject” entities, that is, no political bodies ruled by but not represented in Parliament. The core of Adams's second argument affirming the constitutional status the Americans claimed for themselves is the observation that there was a universally recognized period in the seventeenth century from the ascension of James as King of both England (as James I) and Scotland (as James VI), when he governed England with the English Parliament and Scotland with the Scottish Parliament. Thus, during this period, the kind of “imperial” entity Adams claims the empire to be was clearly known to the constitution. James was King of both countries and the two parliaments were separate and parallel institutions. The colonies, Adams argues, were settled on these very terms, and the colonists had never consented to any change in terms that would grant Parliament authority over them, in contrast to the change in Britain itself when England and Scotland united under one King and one Parliament in 1707.

As the scholarship of Charles McIlwain and John Phillip Reid shows, Adams's constitutional arguments are not incompetent or obviously incorrect, but Adams himself concedes that as thus far stated they are problematical. Indeed, I would maintain that they are more problematical than these scholars see them to be. With regard to Adams's first line of argument, the one denying the constitutionality of empire, it turns out there are unrepresented political entities subject to parliamentary authority. Ireland is the chief example, but the English Channel islands of Jersey and Guernsey also qualify. Arguably, so do the American colonies, and in particular, Adams's native Massachusetts. As he concedes, Parliament legislated for the colonies in the Navigation Acts of the seventeenth century. Moreover, and more unsettling to his precedential argument, he notes in one of his essays that “[i]t has been twice acknowledged by our [Massachusetts] house of representatives, that parliament was the supreme legislative [body].”²²

As he insists in the very same passage, these acknowledgments were by no means the steady consensus of the colony, but they surely count for something as evidence of general understandings, or perhaps, as evidence of consent to parliamentary authority.

As to the cases of Jersey and Guernsey, Adams concedes he does not understand how it can be that they are subject to Parliament: there must be some special circumstances, or, as he seems to think more likely, “it is an usurpation. If it is an usurpation, it ought not to be a precedent for the colonies; but it ought to be reformed, and they ought to be incorporated into the realm by an act of parliament and their own act.”²³

Adams is certain that this precedent or this practice is not properly normative, nor can it have achieved a properly constitutional status. Contrary to what Greene and Reid and others claim, Adams does not in fact consider precedent by itself authoritative. In the words of contemporary legal philosophy, he brings to his efforts at constitutional interpretation a background theory, which provides him a standard or criterion by which to identify valid constitutional precedent and reject invalid precedent. He knows prior to the empirical evidence on usage and custom what the parameters of the constitution must—and must not—be.

Just what the background theory is begins to come to light in his treatment of the difficult case of Ireland. The Declaratory Act of 1766, the act to which Adams and the other American patriots so much objected in principle, was modeled on, indeed reproduced, the language of a similar act passed a half-century earlier regarding Ireland. It was, moreover, an accepted constitutional principle that when specifically named in an act of Parliament, Ireland was subject to that act.²⁴

Adams brings to bear three responses of increasing force and radicalness to the case of Ireland. First, he claims that “although [the members of Parliament] claim a power to bind Ireland by statutes, [they] have never laid one farthing of tax upon it.”²⁵ This is important, but only in a limited way in the context. If the issue were still what it appeared to be at the time of the Stamp Act—whether Parliament could tax the colonies—this would be an important precedent. If the power to tax is a different and somehow more constrained power than the power to legislate, then the failures to tax Ireland could be taken as a precedent against Parliament's authority to tax Americans. But by 1774, neither Adams nor other patriots were making that distinction; the power to tax and the power to legislate were on the same footing.

Adams's second reply to the precedent of Ireland is to claim that “the authority of parliament to bind Ireland at all, if it has any, is founded upon entirely a different principle from any that takes place in the case of America.”²⁶

That principle is consent, explicit consent in a specific act, not the implicit consent perhaps inferable from custom and usage.²⁷ The explicit act of consent was “Poynings' law” (1494), a series of laws made by the Irish Parliament during the reign of Henry VII under the guidance of an agent of Henry, Sir Edward Poynings (1459–1521). These laws provided that “all the former laws of England were made of force in Ireland … and by a construction, if not by the express words, of these laws, Ireland is still said to be bound by English statutes in which it is specifically named.”²⁸ We have here, says Adams, a “voluntary act, the free consent of the Irish nation, and an act of the Irish Parliament.”²⁹ Adams's ostensible point is that no American legislature had passed a “Poynings' law,” but the deeper background point is that this is what it would take to gain legitimacy for parliamentary rule.

Third, Adams is not convinced that this act of consent goes as far as Daniel Leonard or the British think it does. “These are the principles upon which the dependence and subordination of Ireland are founded. Whether they are just or not is not necessary for us to inquire.”³⁰

Of course, by saying this Adams is implicitly raising the question of their justice—and implicitly giving his answer as well. Behind Poynings' law stands the English conquest of Ireland, a token of which is the fact that these laws, so favorable to the claims of England, are named for the English King's military agent in Ireland. While Adams does not pursue the matter further here, he hints quite broadly that consent given under such circumstances is no consent, and perhaps, that such consent is irrational and therefore not to be taken seriously. Behind Adams's construal of the constitution, then, stands a political philosophy of consent. It should already be apparent that it is not a matter of his having, on the one hand, a certain theory or reading or interpretation of the constitution, and on the other, a certain political philosophy to which he adheres. No, the reading of the constitution is shaped by the political philosophy. As Adams says quite explicitly in opposition to a position like the one Reid and Greene attribute to the Americans: “[T]he sense and practice of nations is not enough. Their practice must be reasonable, just, and right.”³¹ The measure of what is “reasonable, just, and right” is the background political philosophy in terms of which he is interpreting the constitution.

The foregoing three responses to the precedent of Ireland illuminate the background theory that Adams brought to his first line of constitutional argument. His second line of constitutional argument was to the effect that the status he claimed for the Americans was a recognized status within the constitution. The chief pieces of evidences he cited for this dated from before the Glorious Revolution and the constitutional settlement it ushered in. The British replied to Adams's argument that the revolution changed (or settled) the constitution in such a way that the earlier kind of monarchical independence was no longer possible. This position is as plausible as Adams's, and it is not clear whether the British constitution has the resources to settle this squabble rationally and with any definitiveness. All three of the factors making for constitutional indeterminacy are in play here, especially the temporal difficulty of figuring out what changes subsequent events can make in prior relationships, and the spatial difficulty of projecting relationships reasonably well understood within the British Isles onto political entities far away and somehow different.³²

Adams recognizes the limits to practice, usage, and even explicit consent as interpretive guides to the imperial constitution because the Americans at the time of the settlement (and subsequently) were “confused” by “two ideas,” both erroneous, that they held: “[O]ne derived from the feudal, the other from the canon law. By the former of these systems, the prince, the general, was supposed to be sovereign lord of all the lands conquered by the soldiers in his army; and upon this principle the King of England was considered in law as sovereign lord of all the land within the realm.”³³

From the canon law came the idea that the pope, as head of Christendom, had a claim over all the land in the world, a claim that somehow transferred to the King when England broke with Rome. The upshot of both was that the colonists mistakenly came to believe themselves to hold their titles from the King and to owe him natural allegiance thereby.³⁴ That belief, in turn, made them vulnerable to parliamentary claims of authority when the constitution shifted toward parliamentary supremacy; that is, they were subject to British governing authorities and to King-in-Parliament in the new post-1688 order, which succeeded the quasi-feudal order they initially believed themselves to be subject to.

Adams denies that Parliament had any right to “succeed to” the feudal authority of the King, but more importantly, Adams rejects the whole quasi-feudal theory of the constitution as mistaken from the outset. The colonists may have understood themselves and their situation in those terms, but they misconstrued their actual situation. Adams believes that he knows better than they themselves what their status was. The colonists' true status at the time of settlement (and thereafter) was established not by the common law, or by any existing constitutional law of Britain, but by natural law. When an emigrant left England, “he carried with him, as a man, all the rights of nature.” He had a claim to protection from the King so long as he stayed within the realm, and the King had a reciprocal claim on him of allegiance. But once he left the kingdom, he was, in effect, in a state of nature, in full possession of his primal natural rights.³⁵

“How then,” Adams asks, “do we New Englandmen derive our laws? I say not from parliament, not from common law, but from the law of nature, and the compact made with the King in our charters.” The emigrants were freed from the common law, but they were free to accept “just so much of it as they pleased to adopt, and no more. They were not bound or obliged to submit to it, unless they chose it.”³⁶

The background theory to which Adams appeals here should be easy to identify: it is the Lockean natural rights/social contract philosophy. From these raw materials Adams constructs his view of the imperial constitution. The latter can be discerned in its true shape only on the basis of the Lockean philosophy. The constitution Adams limns is that interpretation of the imperial relationship that makes the most coherent sense of the historical record as interpreted in terms of the principle of political legitimacy expressed in the Lockean theory. Certain parts of the historical record are rejected as inconsistent with the background political philosophy, for example, the quasi-feudal self-understanding of the parties to the original settlement. Adams as a constitutionalist is a sort of Dworkinian, in that he affirms the need to interpret specific constitutional questions in the light of a background political theory. He is far from the positive law patron of custom and usage only, portrayed by Reid and Greene.

Adams, in other words, developed a constitutional theory of the sort I have elsewhere called an amalgam.³⁷

It was a composite of the Lockean natural rights philosophy and English Whig constitutional theory as expressed in the Bill of Rights. All ambiguities or uncertainties in Whig constitutionalism, especially when required to produce answers to constitutional questions prompted by the temporal and spatial extensions represented by the attempt to apply the constitution to the American colonies, were filled in by reference to the natural rights philosophy. More to the point, perhaps, the entire constitution was reinterpreted in terms of the background political philosophy, so that the Americans came to a view of the constitution that found it importantly illegitimate even as applied within Britain, for the British constitution did not provide the kind of representation the Americans concluded was needed. Large numbers of Britons, including many of the wealthiest ones, lacked representation in Parliament.

Despite the fact that Adams wrote by far the longest of the colonial expositions of the American theory of the imperial constitution, his was not in all ways the best version, especially not for bringing out clearly how the background theory acted within the theory to reshape it. Substantially better on that score is James Wilson's relatively brief 1774 essay on parliamentary authority.³⁸

Wilson, writing almost six months before Adams published his Novanglus essays, defended almost the same version of the imperial constitution the Bostonian soon would. “[A]ll the different members of the British empire are distinct states, independent of each other, but connected together under the same sovereign right of the same crown.”³⁹

The tie through the King is sufficient to maintain the bonds among the English and the colonists in the new world.

Wilson, it will be noticed, strikes out for an even greater independence of the parts of the empire than Adams, denying even the consent-based authority in Parliament to regulate trade that Adams concedes. Wilson explicitly looks to the King to carry on that task, so far as it needs to be done. He thus breaks even more emphatically with usage, custom, and precedent than Adams does, for he rejects all the years of generally accepted trade regulation through the Navigation Acts. In this, Wilson takes the most radical position of any pre-independence American. It is very clear, moreover, that the Greene/Reid description of colonial constitutional reasoning does not fit Wilson, for precedent and usage per se have little weight with him.

Accordingly, Wilson is more open about the difficulties with the precedents for parliamentary authority, or nonauthority, than Adams is. Although he asserts (like Adams) that the legal precedents support his claim “that it is repugnant … to the genius of the British constitution … that they [the colonies] should be bound by the legislative authority of the parliament of Great Britain,” he concedes that the most important legal decisions affirm that, where named explicitly, Ireland, Jamaica, and Virginia have all been held to be so bound.⁴¹

He rejects these legal contentions, however, on a dual ground: first, and most importantly, “it is repugnant to the essential maxims of jurisprudence, to the ultimate end of all governments, … and to the liberty and happiness of the colonies” that they should be subject to parliamentary authority.⁴² Armed with this knowledge, he is able to see that the pronouncements to the contrary in the legal cases he considers are mere dicta, that is, pronouncements of no legal authority because not directly involved in settling the cases in which they were propounded.⁴³ But, secondly, Wilson is yet more certain that the principle that the colonies when named are under parliamentary authority could never be acceptable as valid constitutional law. “These positions are too absurd to be alleged; and a thousand judicial determinations in their favour would never induce one man to subscribe his assent to them.”⁴⁴ On this last point Wilson cites Blackstone as an authority for the proposition: “Where a decision is manifestly absurd and wrong, such a sentence is not law.”⁴⁵

Wilson is, like Adams, a trained lawyer, yet he proceeds differently from his fellow patriot. Rather than beginning with details of the common law and moving from there to the natural law principles that supply the underpinnings and interpretive guidance to the true imperial constitution, Wilson begins straight off with the natural principles and builds his version of the imperial constitution on them. He thus presents a clearer and more thorough account of those natural law foundations.

His beginning point is the claim to sovereignty raised on behalf of parliamentary authority: “[T]here is and must be in every state a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii, or the rights of sovereignty reside.” That is, he begins with the theoretical claim raised by the British, and responds by observing that as necessary as sovereignty is, it is not the first fact about political life, but is itself “founded” on something: “its tendency to promote the ultimate end of government.” If alleged possession of sovereignty in some body or other “would … destroy, instead of promoting, that end, it ought, in that instance, to be rejected.”⁴⁶

The correct understanding of the constitution, Wilson thus makes clear at the outset, is the one, and only the one, that conforms with and serves “the ultimate end of all government.”

In order to understand that end, Wilson rehearses the rudiments of Lockean natural rights/social contract philosophy. He begins with the affirmation of a state of nature, that is, the claim that by nature all are “equal and free: no one has a right to any authority over another without his consent.” All lawful government is founded on the consent of those who are subject to it: such consent was given with a view “to ensure and to increase the happiness of the governed, above what they could enjoy in an independent and unconnected state of nature.”⁴⁷

Wilson interprets the consent requirement not so much as actual or historical consent but as rational consent: his question about consent is not ultimately to be answered by digging around in law cases or in the records of history, but by thinking in terms of the rationality of imputing consent to one or another political arrangement. Thus, he asks his readers to consider the differences between the situations of the British and the American peoples relative to the British Parliament. For the British, Parliament is a fit instrument to which to entrust sovereign power, for it is constructed in such a way as “to ensure and to increase the happiness of the governed.” Members of the House of Commons are directly responsible to the people of Britain, and there are other institutional arrangements to encourage them to know, sympathize with, and serve the interests and protect the rights of those they govern.⁴⁸

The same cannot be said for the Parliament relative to the Americans. The structural features of that relationship have almost the opposite incentive and effect. Given the disconnect between authority and responsibility, “[a] candidate [for Parliament] may recommend himself at his election by recounting the many successful instances, in which he has sacrificed the interests of America to those of Great Britain. A member of the House of Commons may plume himself upon his ingenuity in inventing schemes to serve the mother country at the expense of the colonies.”⁴⁹

Given the insusceptibility of the British imperial model to serve the ends of government for the colonies, Wilson concludes that the Americans cannot be considered to have consented to parliamentary sovereignty over them.

The only alternative is that somehow the people of Great Britain have some original “uncontrolled authority” over the Americans, which they then transfer to their representatives in Parliament. Wilson finds this idea simply incredible. “Have they,” he thunders, “a natural right to make laws, by which we may be deprived of our properties, of our liberties, of our lives?”⁵⁰

This notion cannot be correct, not because Wilson shows that custom, usage, and precedent fail to support it, but because it conflicts with the first principle of political philosophy: “All men are by nature, equal and free.” It is the truths of political philosophy, then, that guarantee that the imperial constitution cannot be what the Declaratory Act says it is, and that leaves connection via the King to be the only alternative to complete and absolute independence. Since the historical record and precedent do bespeak a connection, the imperial constitution must be as Wilson depicts it. Like Adams, Wilson derives a theory of the constitution that is an amalgam of Lockean rights philosophy and the historical constitution, combined in such a way that the amalgam satisfies the requirements of legitimacy (first and foremost) as laid out in Lockean theory and encompasses as much of the historical constitution, interpreted in terms supplied by Lockean theory, as can cohere with the background philosophy.

While Wilson betters Adams's lengthy exposition of constitutional theory, Thomas Jefferson's A Summary View of the Rights of British America (1774) is probably the finest of the statements of the colonial theory of the imperial constitution. Like the later Declaration of Independence, it combines an exposition of theory with a concrete list of grievances, both of which are forcefully, even uncompromisingly, put. Like Wilson, Jefferson leaves the reader in no doubt as to the ultimate source of the colonists' claims: “[T]hese are our grievances which we have thus laid before his majesty with that freedom of language and sentiment which becomes a free people, claiming their rights as derived from the laws of nature, and not as the gift of their chief magistrate…. [We] are asserting the rights of human nature.”⁵¹

Jefferson's statement of American rights needs to be put into the context of a frequently voiced thesis about the positions taken by the colonials in the prerevolutionary conflict over parliamentary authority. According to this thesis, the Americans began with appeals to positive rights—constitutional and charter rights—and, unsuccessful with this appeal, radicalized their position over time, ending up with the appeal to natural law and natural rights by the time of the Declaration of Independence. This thesis captures something of the movement of American argumentation in that appeals to natural standards did indeed grow in prominence as the conflict wore on, but it is positively misleading so far as it suggests that the appeal to natural standards replaces the constitutional argumentation. For Jefferson, as for Adams and Wilson, the appeal to natural rights and natural law is accompanied by a continuing appeal to, and promulgation of, a theory of the constitution. The two kinds of appeals do not appear as alternatives, but in the later phases of the conflict the colonists refine and strengthen their constitutional argument by grounding it in and harmonizing it with their natural rights argument.

So in the case of A Summary View, written before either Wilson's or Adams's essays, Jefferson gives us a theory of the imperial constitution that is in the decisive respects the same as theirs. Parliament has no authority in America, and indeed is spoken of as “a body of men foreign to our constitutions, and unacknowledged by our laws.”⁵²

The King is the one tie the Americans have to the British, and Jefferson specifies that tie more concretely than the others do: “his majesty … [holds] the executive powers of the laws of these states.”⁵³ The King is the executive head of government in each of the American states just as he is in Great Britain. He is to execute the laws of each political body in that political body, and in none of them (e.g., Virginia) the laws of another (e.g., Britain).

Jefferson concedes that custom, usage, and precedent do not fully agree with the true constitution. “Our ancestors … who migrated hither were laborers, not lawyers.” They were, accordingly, “persuaded to believe” things about their status that were false, for instance, that they held their land from the King. Along the same lines that Adams will argue, Jefferson admits that the original colonists greatly misunderstood their situation and, therefore, some precedents speak against the truth. The truth is not to be inferred merely from precedent, custom, and usage.

The truth is that the colonists came to America in exercise of their natural right to withdraw from England. When they did that, they were in effect in a state of nature, free and equal with one another, capable of contracting into a new political society. They acted conservatively in some ways, for they again accepted the King as part of their government and they adopted much of the English common law as their law. The legislative authority is quite another thing from the executive role of the King, however. Just as the English could not reasonably place their legislative power in an irresponsible officer like the hereditary monarch, so the Americans could not reasonably be construed to have placed their legislative power in the hands of a distant and unrepresentative parliament. “From the nature of things, every society must at all times possess within itself the sovereign power of legislation.”⁵⁴

The Americans have placed this power in their own legislatures, a placement confirmed by the fact that the colonial assemblies have been unchallenged in making law for the colonies from the beginning.

Although there may be differences of nuance among the writings of Jefferson, Wilson, and Adams, all three of these American statements of the nature of the constitution agree on the important matters: (1) that the imperial constitution includes no role for parliamentary authority over the colonies, except for what they might specifically agree to for regulation of commerce; and (2) that the British theory of parliamentary sovereignty within the empire is unacceptable, in part because it is innovative and contrary to (most of) the prior understandings of the relationship between colonies and motherland, but far more decisively because that reading makes the constitution theoretically illegitimate and practically dangerous. The power of the American position, then, derives neither from a pure appeal to the constitution (for that was ambiguous and contestable), nor from an appeal to natural law and rights in themselves, but from the appeal to the amalgam of the two that the Americans constructed. It was the amalgam that persuaded them that the British were nefariously innovating and that the colonists had every right, as loyal subjects, to resist those innovations. The amalgam, in other words, was the real cause of the American Revolution.

IV. The American Revolution as a Cause of the Amalgam

Not only was the American amalgam—Locke plus the constitution, or the constitution Lockeanized—a cause of the American Revolution, it was also the case, paradoxically, that the conflict culminating in the Revolution was a cause of the amalgam, and thus in some part responsible for ensconcing in the nascent American political culture a fundamentally Lockean orientation.

In order to see how the Americans came to the amalgam, it is necessary to move well back from 1774, to the Glorious Revolution itself and the Bill of Rights of 1689, a document that best captured the nature of the British constitution according to those who successfully made that revolution.⁵⁵

We must, first, set aside all presuppositions we might have of the similarity of this constitution and its underlying theory to the modern constitution and modern (eighteenth-century) political philosophy, as expressed, say, in the Declaration of Independence or in the three documents analyzed in Section III. I have written on this topic at length elsewhere, so here I will only very briefly summarize arguments better made in other places.⁵⁶ The Bill of Rights of 1689 contains a theory of rights completely different from that in the Declaration of Independence. We can see this difference by referring to a set of five “rights variables” that together make up what we might call a “rights regime.”