The Future of Constitutionalism – Part 3: The English Speaking World

The English Speaking World

England and the United States are central to the history of constitutionalism. The Magna Carta is the first written document limiting the power of the sovereign, compelling him to recognize that he is bound by the “Common Law” like every other Englishman. This is
neither a democratic document nor a modern one. It is a reaffirmation of the feudal rights and prerogatives of the English nobility visà- vis the king. It is a reaffirmation of the social contract of feudal society. Yet it became a foundational document that immunized England to a great degree from the absolutist tendencies of “divine right” that became dominant on continental Europe centuries later.

In conjunction with the special character of the English Reformation and the transformation of England into a commercial state under the Tudors, it became a keystone in the development of Parliamentarianism and constitutionalism in England. The English Reformation reinforced the common law/Magna Carta tradition. Anti-clericalism
in England had been rife for centuries before Martin Luther. John Wycliffe (1320-1384) translated the Bible into vernacular English more than a century before Luther.

Anticipating Luther, he taught that the Church was the community of the faithful, not the institutions of the Church of Rome. His disciple, Jan Hus (1372-1415) in Bohemia, was burned at the stake for similar beliefs. The reason the Reformation did not take off with
Wycliffe and Hus was because they had no printing press to mass produce inexpensive Bibles, and they worked in a weak commercial context with no powerful potential allies. How might cheap mass-produced computers and the rapid spread of globalization facilitate both the development and the constitutionalization of the underdeveloped
world in the future?

Wycliffe’s followers (the Lollards) produced a document called “The Twelve Conclusions of the Lollards” (1395). Two have constitutionalist significance. The first rejects the accumulation of temporal wealth by the Church. Years later, when Henry VIII confiscated the monasteries in England, much of the population supported him. The sixth calls for separation of Church and State.

In 1381, Lollard Priest John Ball—a leader of the Peasants’ Revolt— said that we are all descendents of Adam and Eve and are brothers and sisters, and thus none should have more privileges than another. The translation of the Bible into vernacular was social dynamite: If all were created in the image of God, then all are equal in the eyes of God and should be equal in the eyes of man’s law.

The Lollards were forerunners of the Levelers who, during the English Civil War, supported constitutional principles such as popular sovereignty and equality before the law. This in a way represented a democratization of the Magna Carta tradition. When constitutionalism and an expectation of the democratization of constitutionalism have become internalized into the very soul of a nation, when they become cultural assets of that nation and not only external political scaffolding, then they have triumphed. This is a key when looking to the future. The Weimer Constitution failed not because it was poorly
written but because it had no resonance in the history and culture of Germany. Russia is now faltering in its attempts to be a constitutionalist state because its 1,000-year history contains nothing that can be referred to. What then are the cultural assets of nations and religions that can be appealed to in order to further the march of constitutionalism in the future?

The confiscation and sale of the monasteries in England helped create a substantial class of free landholders (yeomen). By weakening the Church of Rome, Henry VIII inadvertently strengthened the growth of middle-class freeholders and merchants, who were the taxpaying backbone of England and who dominated Parliament.

Charles I was beheaded because he betrayed every component of English tradition. His absolutist tendencies violated the principle of limitation of power in the Magna Carta, as well as natural rights deriving from the Bible. Because of this, he was forced by Parliament
to accept the Petition of Right (1628), which, among other things, confirmed the principles that taxes can only be levied by Parliament (which represented the taxpayers), that martial law and quartering of troops may not be imposed in time of peace, and that due process (trial by jury) and habeas corpus are to be respected. When George III and Parliament ignored these restrictions with respect to the 13 colonies in the 1770s, they ran into a bit of trouble.

Even the Restoration of the Crown following Cromwell’s dictatorial rule did not “restore” everything. Charles II, wiser than his father, kept his head by deferring to Parliament. But his successor, James II, had absolutist tendencies and was deposed in a relatively bloodless coup called the Glorious Revolution (1688). He was replaced by William and Mary at the invitation of Parliament, on condition that they sign a Bill of Rights (1689) that affirmed trial by jury, due process of law, no cruel punishments, no excessive bail or fines, the right to bear arms, the right to petition government, and no taxation without Parliamentary approval. This was accompanied by the Act of Toleration (1689), which granted limited freedom of religion. This marks the official beginning of constitutional monarchy.

In late 1689, John Locke wrote his famous Two Treatises of Government, the second of which was a post facto philosophical justification for the overthrow of unjust government. Locke was the intersection of three modes of thought: the English, the Puritan, and the Scientific. His Enlightenment concepts of natural rights deriving from natural law were greatly influenced by his close friend Isaac Newton. They were both members of the Royal Society.

It is claimed that Jefferson had Locke’s essays on his desk when he was drafting the Declaration of Independence. The United States of America is a product of the English constitutional tradition, Enlightenment values, Reformation individualism, and the commercial experience of the colonial period. The colonies had been 13 schools
of self-government, had expanded constitutional concepts beyond the mother country, and were more democratic in that a higher percentage of men were eligible to vote. They had achieved 60% literacy—the highest in the world at the time.

The United States has also had many majoritarian moments. Before the American Civil War, the term popular sovereignty meant that the residents of U.S. territories should decide by majority vote whether slavery would be allowed in the territory—that the White majority would decide the human rights of Black people. Majoritarianism was reflected in certain aspects of the Progressive Movement, especially in regards to Jim Crow. The Progressives said if the White majority wants it, then democratic principles require it. Woodrow Wilson, the great “progressive,” introduced Jim Crow into the American civil service on the basis of this principle.

But on the whole, the history of the United States has reflected the ongoing democratization of constitutional protections, beginning with White man owning property, to universal White men’s suffrage, to Black men’s suffrage (at least in principle), to women’s suffrage, to the end of Jim Crow. Suffrage, the right to vote and decide who sits
in government, is the vital power given to individuals and minorities to protect their rights.

The courts themselves have been active rather than reactive in expanding and deepening the constitutional protections of an evergrowing list of minorities and of rights themselves. How might domestic and international judiciaries further the cause of constitutionalism
in the future?

Continental Europe has been essentially majoritarian (usually placing the state over the individual) throughout its history. However, the evolution of Enlightenment values and the inherent contrarianism of western European culture have persistently driven Continental Europe toward constitutionalism and subsumed its majoritarian instincts.

Latin America was not so “lucky” with its cultural heritage. There are no “rights as a Spaniard”—no constitutional tradition. The Inquisition destroyed the commercial class and inhibited the growth of a freeholder yeomen class. Spain had no Reformation, was anti-Enlightenment, and had a low level of literacy. The Spanish colonies had no experience of self-government (let alone constitutional self-government). Remember, when 1776 rolled around, Virginia and Massachusetts had been governing themselves for a longer period of time than has elapsed from the Civil War until today. When trying to formulate a constitutionalist strategy for the future, we must keep in mind that both history and culture matter.

 

For part four click here 

Tsvi Bisk is an American ­Israeli futurist. He is the director of the Center for Strategic Futurist Thinking (www.futurist-thinking.co.il/) and contributing editor for strategic thinking for The Futurist magazine. He is also the author of The Optimistic Jew: A Positive Vision for the Jewish People in the 21st Century. Tsvi is available as a lecturer or as a scholar in residence as well as for strategic consulting