AuthorLeonard W. Levy

Page 512

At the time of the Stamp Act controversy, a British lord told BENJAMIN FRANKLIN that Americans had wrong ideas about the British constitution. British and American ideas did differ radically. The American Revolution repudiated the British understanding of the constitution; in a sense, the triumph in America of a novel concept of "constitution" was the "revolution." The British, who were vague about their unwritten constitution, meant by it their system of government, the COMMON LAW, royal proclamations, major legislation such as MAGNA CARTA and the BILL OF RIGHTS, and various usages and customs of government animating the aggregation of laws, institutions, rights, and practices that had evolved over centuries. Statute, however, was the supreme part of the British constitution. After the Glorious Revolution of 1688?1689, Parliament dominated the constitutional system and by ordinary legislation could and did alter it. Sir WILLIAM BLACKSTONE summed up parliamentary supremacy when he declared in his Commentaries (1766), "What Parliament doth, no power on earth can undo."

The principle that Parliament had unlimited power was at the crux of the controversy leading to the American Revolution. The American assertion that government is limited undergirded the American concept of a constitution as a FUNDAMENTAL LAW that imposes regularized restraints upon power and reserves rights to the people. The American concept emerged slowly through the course of the colonial period, yet its nub was present almost from the beginning, especially in New England where covenant theology, SOCIAL COMPACT THEORY, and HIGHER LAW theory blended together. THOMAS HOOKER in 1638 preached that the foundation of authority lay in the people who might choose their governors and "set bounds and limitations on their powers." A century later Jared Elliot of Massachusetts preached that a "legal government" exists when the sovereign power "puts itself under restraints and lays itself under limitations. This is what we call a legal, limited, and well constituted government." Some liberal theologians viewed God himself as a constitutional monarch, limited in power because he had limited himself to the terms of his covenant with mankind. Moreover God ruled a constitutional universe based on immutable natural laws that also bound him. Jonathan Mayhew preached in Boston that no one has a right to exercise a wanton SOVEREIGNTY over the property, lives, and...

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