The Ancient Constitution and the Origins of Anglo–American Liberty, and: Righteous Anger at the Wicked States: The Meaning of the Founders' Constitution, and: M'Culloch v. Maryland: Securing a Nation (review)

To paraphrase Rousseau, modern constitutionalism means that today the popular will is born free, yet is everywhere in chains. This becomes evident from a review of these three works of constitutional history spanning two centuries in which one can trace the evolution of the idea of liberty. The supposed grounding of liberty changed dramatically between the sixteenth and eighteenth centuries, from its protection by the rule of law to its protection by the clash of competing political and economic centers of power. That period also saw a vastly expanded definition of liberty, including within liberty political and economic freedoms held by the people. Despite this, constitutional advocates rejected unrestrained rule by popular will as inimical to freedom; and they did so while proclaiming popular sovereignty as the sole basis of political legitimacy.¹

In his book The Ancient Constitution, John Phillip Reid undertakes to "survey the use made by lawyers, constitutionalists, and parliamentarians of the suppositive ancient constitution as the forensic tool with which to create, defend, and define the concept of liberty and of representative government" (5). The ancient constitution was the "putative aboriginal political structure of Anglo-Saxon governance . . . free people living under elected kings, vested with limited authority, and confined by the rule of customary law" (5–6). In "the sixteenth and seventeenth centuries, the ancient constitution provided a standard with which to argue against the actions . . . of contemporary government" (6).

The early chapters of Reid's book discuss underlying historical issues related to the ancient constitution, such as the extent to which supporters thought that it was timeless and unchanging, and what significance that belief had for their use of the concept. Later chapters discuss specific issues raised by the ancient constitution, such as the significance of the Norman Conquest and Magna Carta. Throughout, Reid relies on a distinction between "forensic history," or history as practiced by advocates (mostly lawyers), and more objective history as practiced by historians. Reid argues that historians should study what advocates actually do with history, not whether their history is "good" history from a historian's perspective, and he seeks to provide a history of such advocacy based on the ancient constitution concept. For Reid, that concept was a tool used by advocates to oppose arbitrary power and defend traditional civil liberties.

Reid thus has a markedly different view of the concept's history than do many other historians. Many modern historians have deemed inaccurate the view that an "ancient constitution" gave Parliament the substantial powers for which its supporters argued in the seventeenth century when opposing the Stuart kings. Historians have also argued that the common early-seventeenth-century view that the ancient constitution was timeless and unchanging was flawed, and that this flaw was recognized by the late seventeenth century.² Reid asserts to the contrary that

the ancient constitution was not primarily an institutional framework for a broad model of government such as mixed monarchy. It was, first and foremost, a defense of governance by the rule of law. Second, the purpose of the ancient constitution was advocacy, not history.

(47–48)

Reid's evidence for both of these debatable claims is unpersuasive. The idea of the "rule of law" was inextricably embedded in a debate over sovereignty through much of the English seventeenth century. Consequently, many of the arguments made by supporters of the ancient constitution were indeed about the structure of government, often in the form of claimed rights against the royal...