Tuesday, September 29, 2009

Conservatives and the Ancient Constitution: Ver 1.0

Well I got started too late in the day to present a fleshed out version. So let this serve as an abstract.

Britain has never had a written constitution, instead it had what latter lawyers called the 'Ancient Constitution' which was both older than memory or even history reached and was in form perfect. Being perfect it was not changed or indeed changeable. Moreover it was not in origin considered to be the King's Law, it was instead before and to some degree above the King.

Now Britain did have royal formulations of law which were drawn up in what are now known as Law Codes, starting with that of King Aethelred of Kent of King Ine of Wessex which latter were incorporated in the latter Code of Alfred the Great. Alfred's Code is not designed to be foundational, instead he has gathered what he liked of other codes and gathered them together with some modifications. The best way to read Alfred's Code is as a collection of Administrative and Legal Regulations particularly as governing the King's rights to exercise jurisdiction. Which set off a struggle that would extend for centuries and indeed were not settled until the late 19th century, that is who was in control of the judgement in legal cases. Eventually it all ended in the hands of the King's Judges but this was a long process.

But none of this fundamentally was seen to change the Ancient Constitution, to the end English people held that they had rights against the King and particularly in the area of property and just as importantly in taxation. Certain taxes (or so we would call them) were due to the King as right, and others to the King as landlord, but at no time in English history was the principle that the King could just set taxes at will. And attempts by various English Kings to claim expanded rights were resisted and often enough by force.

The Magna Carta, often thought of as the basis for latter Anglo-American jurisprudence, is the product of just such a rejected claim. King John made demands that challenged the property rights of Lords and free-holders which led to a Civil War. Which John lost. The result was that the opposition laid forth their case, based on the Ancient Constitution (though at that period they didn't call it such), that John must renounce certain specific claims. In 1215 John was forced to submit. This was not a one time event, the Great Charter was reissued many times and serves as a cornerstone of the British Statute Book, but does not serve as the foundation for the constitutional system.

My suggestion is that the Modern American Conservative movement draws from this now eight century struggle to contain the King and the Government into their proper role and that insists that certain rights existed prior to any Kings, or at least any earthly Kings. To that extent the line between the Ancient Constitution and Natural Law begins to blur thus explaining why Conservatives seem to have the selective acceptance of the American Constitution, to the degree that it violates previous rights and laws it is only partially binding.

I don't know that I am totally persuaded by my own argument here, and I will try to continue developing it. For what it is worth consider this version 1.0


Ryan Lanham said...

While it is an interesting argument, there is of course no justification for 1, continuation of the ancient constitution once a new state and constitution have been adopted, and 2, violation of the case law of the United States--no matter what primacy one argues for above it.

Natural law has standing in the United Kingdom and Commonwealth, it has no such standing in the United States.

Even if it did, I should think the oath taken by government and military personnel to preserve and protect the Constitution would have first primacy. It is, after all, an oath made voluntarily. What could rise above that in natural law?

Further, it is clear the Government of the United States has the legal power to tax any amount of income--even up to 100%. There is not logical constitutional argument against that. They case law is quite clear.

Bruce Webb said...

Well you missed the thrust of the argument on two fronts. One the article is fundamentally about Conservatives take on the Constitution and whether he binds them in all cases. Certainly Article 10 offers an opening for that:
Amendment 10 - Powers of the States and People. Ratified 12/15/1791.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people

Secondly British Common Law which was taken over pretty much whole itself has no written Constitutional Base. Ultimately the seven centuries of case law on which it rests were drawn from royal judges making rulings based on the Ancient Constitution as that had been interpreted over the years. If you read Blackstone's Commentaries you see this principle clearly stated.

The U.S. Constitution is in no way comparable to the Code Napolean or any law codes derived ultimately from Roman civil law (as many European codes are), for example it make few provisions for what are or are not considered crimes or what the punishment should be. Instead those matters are left to Common Law Case Laws as supplemented by statute.

If there is a provision in the Constitution barring Common Law drawn ultimately on the unwritten Ancient Constitution then I must have missed it. In any event the larger point is the Conservative approach to the law as such and whether they can appeal to precedents outside written law. I suggest that at a fundamental level they do assert that right.

jack said...

It might prove to be instructive if first the description of "Modern American Conservative" is focused upon. I don't know that there is such an ideological consensus amongst those who consider themselves to be Conservatives. They may all have conservative ideas, but those may have varying goals which themselves may be contradictory.

Does the Republican conservative in the Congress share the political, economic and social goals of those who are conservative constituents? Or, does the elected Conservative use the description for the purpose of political marketing? What ideology does the conservative media hold dear? Is there anything shared by the individual media outlets in regards to the conservative goals of the political conservative and the conservative voter?

Just understanding the variations and conflicts within the monolithic ideologies of Modern American Conservative is a huge task. That task needs be accomplished before any effort to determine the roots of today's conservative strains. Some are genuinely ideological and some are simply self serving.

Bruce Webb said...

Jack I believe there is an underlying consistency to American Conservatism, once at least you exclude the Neo-Cons.

I believe it all comes down to property rights or perhaps more narrowly to family rights where 'family' is defined as it once was and included servants and dependents.

I get some of this from Fustel de Coulanges 'The Ancient City' of which more later.

coberly said...


thanks for this. i have a little trouble understanding it because it is cross current to my normal way of organizing the universe.
i think you are right about the conservatives thinking they have rights prior to the law, the government, and the constitution. i know i do.

the problem is getting those rights enforced, or even agreed about among those asserting them.

balkanization said...

Not sure what your take on this connection is. But the connection IS there. Note that Conservatives in Texas just revised textbooks to de-emphasize Thomas Jefferson and to emphasize William Blackstone in the creation of the American Revolution. If that is not the myth of the Ancient Constitution (that the American Founding Fathers did not have Natural Law [Jefferson] but Civil Law and a civil law based on precedent and custom time-out-of-mind at that [Blackstone] then I am not a historian writing about Ancient Constitutionalism right now. (Which, if I don't publish it, perhaps I am not.)

Bruce Webb said...

Thanks Balkan. This site does notify me and I pay attention to every response.

If you have any contribution on Blackstone or the Ancient Constitution that you would like to see in circulation I have full front page access to Angry Bear a top 25 Econoblog linked by any number ot top sites and can put it up. My email is at the upper right of the page.