American Exceptionalism: The story continues
Steven Den Beste has posted a cogent reply
to my comments below, which also includes some interesting comments from other bloggers of note. In particular, Kevin Whited
takes on the argument that The Iroquois Confederacy
had any real role to play in the drafting of the Constitution.
Steven's next point after the Iroquois ideal (incidentally, the Seneca called George Washington "the town destroyer," so much respect did he give their systems), is about the legitimacy of government. It is important to realize that part of the reason the English reacted so violently to the Divine Right of Kings was because it was wholly alien to the English concept of Kingship. As far back as Anglo-Saxon times there was an elective element to the Kingship (the witena gemot
both approved and could depose a new King, whatever the succession laws said). This was adapted by the Normans into the Commune Concilium
which was essentially a form of election for the new King. To quote Vernon Bogdanor, "Obedience was granted in exchange for royal protection." Note the use of the word grant. Even William the Bastard swore in his coronation oath to observe the laws of England. The King always ruled by sufferance of the people. Magna Carta took this further, insisting that the monarch was as much under the rule of law as his subjects and also underlining that the rights of individuals took precedence over the personal wishes of the sovereign. Despite aberrances, the English form of monarchy had always
been constitutional in a way continental monarchies were not. The monarch ruled only because the people allowed it. The "Divine Right of Kings" was a red herring, an instrument designed to impose absolutism as well as a detested supranational authority on a people who had always rejected it. It could equally be said of the English constitution that "we created it ourselves and submitted to it voluntarily."
Steven rightly chides me for not mentioning the Test Acts. The Roundhead part of me has always regretted the Restoration, and I should have decried the way in which principles of religious freedom won in so hard a fight were thrown away. Nevertheless, it is interesting that in the two countries today, religion is probably a much more powerful political element here than in the UK. Want religious fundamentalism out of politics? Establish the Episcopalian Church...
Now we come to the Constitution itself. It is a remarkable document, I agree. But let us remember the words of the Declaration of Independence:
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
In other words, it is a central principle of the American founding that no
form of government is more important than the reserved rights of the people. Nor is the idea of a contract binding the Government unique to the Constitution: it is seen in the Coronation Oath, Magna Carta, and the Declaration of Right (as well as the Provisions of Oxford, the Petition of Right, the Agreements of the People and the People's Charter, which were all failed attempts to constrain further). It is highly likely that the Blairite attempts to restrict Trial by Jury would have ended abruptly with a judgement that they violated Magna Carta, which remains British law and, as a contract between the Monarch and the People cannot be amended or repealed by Parliament.
The Constitution (and its amendments) is just another example of this tradition, but one that has been distorted. It is highly likely that a future Supreme Court will interpret the death penalty as cruel and unusual, and this time it would be unlikely to reverse its decision. Indeed, as this excellent Walter Williams op/ed
makes clear, the American experiment has become, thanks to its Constitution, an experiment in judicial supremacy. And rule by lawyers implies ever more-complicated laws:
Rule of law means there's governance by known general rules, equality before the law, certainty of the law, a permanent legal framework and independent judicial review of administrative decisions.
These specifications of the rule of law have been emasculated. No one can possibly know the thousands of pages of rules published by the Internal Revenue Service, not to mention the hundreds of thousands of pages of laws applicable to health care, banking, education, pensions, agriculture, ad infinitum. There's arbitrary discretionary power exemplified by rules like requiring government permission to disconnect an automobile air bag, or members of Congress deciding to enact agricultural and dairy price-supports or sugar tariffs depending upon whether the agriculture, dairy or sugar lobby contributed to their political campaigns.
None of the branches of government does anything about this, as it is in none of their interests to do so. Jury nullification is the only hope there, I would suggest. Meanwhile, the Second Amendment is ignored or deliberately flouted all over the country, most noticeably in the Federal Capital! In many cases the supposed guarantee of liberty has sub-clauses saying "not valid in the event of..."
Which all goes to make the case that America's Constitution, though a great achievement, is in no way more important than the ideas behind it, as Jefferson made clear, and, indeed, is sometimes as detrimental to those ideas as the even more flexible British system. But those ideas are Anglo-American, and not the exclusive property of either side of the Atlantic. Those ideas have made both England and America in turn the most successful and prosperous nations on Earth. They may yet make India more powerful than either.
I have a couple of comments on side-issues and some correspondence left to post, but that's enough for now.