Constitutional History of the American Revolution
Publication Year: 1995
Published by: University of Wisconsin Press
"The dispute between Great-Britain and her colonies is now reduced to a single point," a "Citizen of Philadelphia" told his fellow American colonists in 1774. That question was, "Whether the Parliament shall give laws to America."1 He was speaking to future generations of Americans as well, telling them that the civil war that would soon begin on the green ...
To understand the constitutional debates leading up to the American Revolution we must think as participants in that debate thought. If we are to do that, if we are to think as people in the eighteenth century thought about law, we must appreciate the meanings and the nuances of wQrds such as «arbitrary," «constitutional," «legal," and «political." ...
1. The Authority of the Constitution
Unlike the American state and federal constitutions, the British constitution was never written; it was not a set of directives adopted by the people granting government its prerogatives and limiting its powers. The British constitution, rather, was an idea, a way of thinking and arguing about authority, an outline of governmental goals and principles derived from existing ...
2. The Authority to Tax
The British Parliament made two constitutional mistakes during the 1760s. First, it assumed unilaterally that it possessed authority to enact legislation of a type it had never before enacted. That is, Parliament assumed that its authority was derived from the constitution of sovereign command and that it was not restrained by the constitution of customary rights. Parliament's ...
3. The Authority to Legislate
Parliament attempted to end the debate over its authority to bind the colonies by legislation before the debate had really begun. When America's attention was focused on the issue of taxation and only beginning to concentrate on the authority to legislate, Parliament legislated that it had authority to bind the colonies in all cases whatsoever. By January 1766 the ministry ...
4. The Authority to Regulate
American whigs had a solution to the controversy over Parliament's claim to authority to legislate for the colonies in all cases whatsoever. That solution was totally constitutional, turning entirely on legal principles and ignoring America's economic interests or the commercial well being of the colonists. The solution was stated many times, from the beginning of the constitutional ...
5. The Authority of the Prerogative
Avoidance of constitutional confrontation with the mother country continued to guide American whig constitutional strategy until 1773 when circumstances in Boston forced the colonists to choose between avoiding giving Parliament a precedent of supremacy or avoiding a confrontation over the Tea Act. Providing a striking instance of the importance they attached to ...
Civil war was not inevitable. The constitutional rule that the statutes of one parliament could not bind a future parliament, did not mean there were no solutions. What it meant was that any solution had to be political, not constitutional. The British constitution had brought Americans to a dead end. One reason why the question of Parliament's right to bind the American colonies ...
Leave from teaching responsibilities at New York University School of Law was provided by the Filomen D'Agostino Greenberg and Max E. Greenberg Faculty Research Fund at New York University School of Law, and by John Sexton, dean of New York University School of Law. As with the previous volumes in this Revolution-era series, the index was prepared by ...
Page Count: 176
Publication Year: 1995
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