Oldest of written constitutions still in operation

Tudor, Whig or what?

No ultimate source of sovereignty: Daniel Lazare takes issue with Mike Macnair on the nature of the US constitution

In an article last winter, I compared the January 6 Capitol Hill uprising to an incident that occurred nearly four centuries earlier, when Charles I sent 400 troops to arrest five rebels in the House of Commons, thereby touching off the English Civil War. As I put it,

The comparison is important, because America, in a sense, is still stuck in the 17th century. Indeed, the conservative political theorist, Samuel P Huntington, argued in the 1960s that America was a Tudor polity founded by Puritans, who were appalled by Stuart absolutism and who longed for the good old days of Elizabeth I - the English Deborah who had sunk the Spanish Catholic Armada in 1587. Tudor devotion to England’s ‘organic’ constitution, Huntington noted, was quite genuine. Despite his brutality, for example, Henry VIII was a master politician, a proto-LBJ, who was adept at manipulating the complex power structure of the day and making it do his bidding. His daughter, Elizabeth, was also a skilled practitioner. For Puritans, constitutional complexity was a source of strength. The Stuarts’ great sin, in their view, was not only their crypto-Catholicism, but their disregard for traditional constitutional constraints, which could only end in national defeat.1

The argument turns out to have triggered a minor controversy. Bradley Mayer weighed in two weeks later with the view that the evidence “points to a Whig, and not a Tudor, polity”.2 Jim Creegan dismissed as politically irrelevant the entire “arcane discussion of the separation of powers under the Tudors, and the attachment of the pilgrim fathers - who landed in Massachusetts in 1620 - to Elizabethan state forms”.3

And now Mike Macnair has used the debate as a springboard for a five-part series surveying the rise of modern constitutionalism from the city-states of medieval Italy to 17th century England and Holland and the growth of American influence after 1945. But his jumping-off point is the premise that I am wrong and that “Bradley Meyer is entirely right to say that the US constitution was a transfer of Whig political ideas, not of Tudor ones” (original emphasis).4

All of which leads to two questions:

  1. Is the United States a Tudor or Whig polity, neither or both?
  2. What relevance, if any, does this have to 21st century politics?

English ‘greatness’

Let us start with the first question. For a New World, America by this point is getting rather long in the tooth. Columbus ‘discovered’ it in the late middle ages, while Portuguese and English fishermen likely visited Newfoundland and Nova Scotia even earlier. The Virginia Company established its Jamestown colony in 1607, the Pilgrims landed in 1620, while the main body of Puritans began arriving in Massachusetts in 1628, which is to say more than a dozen years prior to the titanic events of the 1640s that launched England on the road to political modernisation.

The United States, now in the middle of its third century, is the oldest major republic on earth, while the constitution of 1787 is the oldest written plan of government. The Italian constitution, by comparison, dates from 1947, the German from 1949, the French from 1958, and the Russian from December 1993.

Given that the US constitution is all but impossible to change, the effect is to anchor the United States in the past in ways that other countries find difficult to comprehend. Do British politics revolve around fine points of interpretation concerning the Magna Carta? Obviously not. But US politics do, as the endless culture wars over the first and second amendment attest. Such statutes may date from the late 18th century, but, as far as Americans are concerned, it is as if they were written yesterday.

All of which gives new meaning to the phrase, ‘American exceptionalism’: not a country that is exceptionally brave, moral or just, but one that is exceptionally attached to legal principles predating the rise of modern industrial capitalism.

But that is just the beginning. Since the 1920s, scholars zeroing in on the constitution’s long prehistory have concluded that the document was backward-looking even by 18th century standards. The American historian, Charles McIlwain, whom Macnair cites in his opening article, wrote in 1923 that American “patriots” based themselves on an “older interpretation of the English constitution, continuing in America, but superseded after 1689, if not 1649, in England”.5 The historian, Robert R Palmer, wrote in 1964 that the new American system of government

announced some new ideas that had proved exciting in Europe, and it was already modern in its lack of feudal, dynastic and churchly attachments; but in some ways it was actually old-fashioned, having shared less than Europe in the scientific, literary, capitalistic, governmental and bureaucratic development of the preceding 200 years. American English, with its neologisms and its archaisms, was characteristic of the state of society.6

Huntington argued four years later in Political order in changing societies that the constitution’s true roots were actually earlier - not in the Stuart period, in which colonisation began, but in the Tudor era that ended in 1603. His reasoning was simple. Much like American liberals longing for John F Kennedy and ‘Camelot’, Puritans fleeing the Catholic-absolutist Stuarts longed for the golden age of Elizabeth I - the last of the Tudors, whom they identified with not only the strong and sturdy Protestantism that had defeated the Spanish, but traditional constitutional arrangements that distributed power among a broad array of institutions: not just parliament and the crown, but the church, the municipal corporations, the Inns of Court, etc. All were autonomous, all were keenly jealous of their ancient liberties, and all had arisen out of the misty depths of English history. It was this time-honoured sense of pluralism and balance, they believed, that was the source of English greatness. Take it away, and the country would sink into French-style decadence and oppression.

So Huntington argued - quite rightly in my opinion. But, what is more, everything about the Puritan experience in the New World seemed to confirm their initial diagnosis. Life in Massachusetts Bay was sturdy, rustic and religious. Famers were forbidden to live more than a mile from a church, towns were self-governing and soon all sides found themselves jostling for power with royal governors. Throughout New England, colonial politics thus revolved around the question of core versus periphery, of central authority versus local control, with the Americans arguing in neo-Tudor terms that pluralism, balance and local autonomy were the key to success. The political patterns of the late 16th century replicated themselves in a new setting, as colonisation spread.

Macnair takes issue with Huntington on a number of grounds. He says he overstates the “claim that constituency-localism was replaced by representation of the nation as a whole after the 17th century revolution”. He complains that he accepts uncritically the Puritan image of Good Queen Bess despite her “arbitrary imprisonment of troublesome parliamentarians and others; her prerogative Court of High Commission, and with it the major role of bishops in governance under her regime … her vigorous use of Star Chamber; her judges’ imprisonment of juries who found verdicts the wrong way.”

Perhaps. But the UK today is one of the most centralised countries on earth, while its transatlantic cousin, with its 50 states and 90,000 local governments - all autonomous and all infinitely jealous of their ancient constitutional rights - is a case of neo-Tudor pluralism run amok.7 While it is unclear whether Huntington or the Puritans are guilty of burnishing Elizabeth’s image, the fact remains that the Puritans overlooked her shortcomings in the heat of the battle against the Stuarts in the same way that American liberals overlooked JFK’s misdeeds in subsequent years as well: ie, his escalation of the Vietnam War, his decision to bug Martin Luther King, his attempts to assassinate Fidel Castro, etc. What matters is not whether Elizabeth really was the English Deborah rallying the Israelites to battle (cf Judges, 4-5), but whether Puritans thought of her in that way and how they acted in response.


Macnair also takes issue with Huntington’s argument that the modern concept of political sovereignty passed America by, because it did not enter the English thought-world until after colonisation began. Not so, he says:

The idea of the necessity of sovereignty is not an innovation in Jean Bodin (c1530-96), as Huntington argues (pp100-01), but a reinterpretation of claims about the nature of law and government made by the late Roman emperors and ‘theorised’ by Augustine of Hippo (354-430); the idea of sovereign legislation as a fundamental source of authority was already part of English legal ideas in the 1400s ...

But surely comrade Macnair understands the difference between the limited theological conception that Augustine advanced and the systematic, secular version developed by Bodin and Thomas Hobbes - one in opposition to the French wars of religion of 1562-98 and the other in response to English events of the 1640s.

This is important, because the concept of sovereignty - the idea that all societies require a supreme authority whose job is to judge without being judged in return - is essential to any understanding of the American predicament today. As Henry Adams explained not long after the US Civil War,

Supreme, irresistible authority must exist somewhere in every government - [this] was the European belief … America, on the other hand, asserted that the principle was not true; that no such supreme authority need exist in a government; that in the American government none such should be allowed to exist, because absolute power in any form was inconsistent with freedom, and that the new government should start from the idea that the public liberties depended upon denying uncontrollable authority in the political system in its part or in its whole.8

Where England advanced towards a theory of sovereignty, as vested in the crown-in-parliament, America went veering off in the opposite direction. The upshot is the great American leaderless mob - one that is more cacophonous, the more ‘democratic’ it grows. If Congress, the White House, and the courts are forever pointing the finger at one another, it is because the complete absence of any coherent concept of sovereignty means that no-one is ultimately in charge or ultimately responsible and that everyone is therefore free to blame everyone else ad infinitum. Americans are unable to criticise the constitution because they have no control over the document. And, since that is the way the tribal elders known as the ‘founding fathers’ wanted it to be, that is the way it should be (or so they tell themselves, as society goes careening downhill).

It is a form of ‘nomocratic’ law-worship going back to Moses and Lycurgus. But Macnair’s big mistake as far as this discussion goes is not only getting Huntington wrong, but getting the question of Tudor versus Whig wrong as well. He assumes that it is an either-or proposition, that America must be one or the other, but definitely not both. But the historical process shows the opposite.

No-one is saying, for example, that the colonies were immured against all outside influences. On the contrary, they were caught up in the same political controversies as the rest of the transatlantic British federation. If the Old Whig party had a big impact beginning in the 1720s, it is because ‘Country’ ideas about checks and balances and separation of powers seemed to confirm all that colonists already knew - which is that they needed their own policies and institutions and that the centre needed to back off and give them room. But in no sense was this at odds with the neo-Tudor thesis. On the contrary, neo-Tudorism provided colonists with the rough constitutional outlines that the more developed ideology of the Country party then endeavoured to fill. Old Whig ideas confirmed that the old Tudor ideas were as valid as ever and that Americans were right to defend their local freedoms against encroaching ‘tyranny’.

Indeed, this is how the Old Whigs saw it as well. Like the Puritans, the Country polemicist, John Trenchard, was also a fan of Good Queen Bess, writing in 1697 that the golden age of English patriotism ended when “in the year 1603 died Queen Elizabeth and with her all the virtues of the Plantagenets and the Tudors”.9 Neo-Tudor and Old Whig ideologies were thus complementary rather than antagonistic. This is why I was careful to specify last January:

The upshot in 1787 was a US constitution that took Tudor-style pluralism and updated it with various 18th century add-ons: John Trenchard’s and Thomas Gordon’s writing about checks and balances in Cato’s letters, which were required reading in the colonies in the 1720s; Viscount Bolingbroke’s 1749 pamphlet, ‘The idea of the patriot king’, which laid the theoretical basis for the US presidency; Baron de Montesquieu’s Spirit of the law, which was also a key text of the day; and so forth.

It was this ideology - born in the late 1500s and early 1600s, and then fleshed out over the ensuing century and a half - that an ironclad constitution then locked in place. William Howard Taft, the rotund Ohio lawyer who served as president from 1909-1913, once observed that the US is “really the most conservative country in the world”. That is a bit of an exaggeration, since Japan in many respects is even worse. But it is close enough, and this centuries-long formative experience provides much of the reason why.


And now on to question 2: what relevance, if any, does this have to contemporary politics?

Macnair makes a number of important points in the course of his five-part survey. He correctly argues that the craze for written constitutions arose not in response to the “hybrid warfare” on land and sea that saddled European powers with growing costs, as Linda Colley contends in The gun, the ship and the pen (2021). Rather, it was the great revolutionary wave that began in America in the 1760s and then moved on to France, Italy, Holland and Haiti. As new nations took shape, politicians suddenly felt the need to justify the ways of man to man by specifying what government was for, what it was supposed to do, and how it would be organised.

Macnair’s observation that a rising bourgeoisie felt a class need to restructure politics in its own image is entirely valid: “The problem is then to disrupt the pattern of official loyalty to the state, that is loyalty to the old order and create a new form of loyalty that will serve as loyalty to the new rising class: a new ‘constitution’” (original emphasis).10 Or, as Engels put it in 1861, when society “outgrow[s] the old social order”, it needs to break it up by force, “as a crab breaks its shell”.11

Part five of Macnair’s series is more problematic, however. Concerning his remarks about how the Comintern’s 1920 resolution on the role of the vanguard party ineluctably gave rise to Stalinism years later, the less said the better. But, while his comments about how British-style parliamentary sovereignty became the dominant constitutional model in the 19th century are valuable, they leave a good deal out concerning how such constitutional monarchies reinforced the role of the landed aristocracy and why the agrarian reaction of the 1870s to the 1890s helped put the entire system on the path to destruction in 1914.

This is the subject of Arno Mayer’s classic 1981 study, The persistence of the old regime, not to mention the great BBC series Fall of eagles in 1974.12 Macnair’s discussion of America’s growing influence post-1945 is even more incomplete. One reason is that he proceeds on a country-by-country basis, showing how the post-war Japanese constitution imposed US-style judicial review in 1947, how Germany’s Basic Law did the same in 1949, and how Charles de Gaulle introduced not only judicial review, but an independent, US-style presidency in 1958. But he makes no effort to grapple with US imperial structure as a whole or to explore how America’s pre-modern ideas about federalism and separation of powers actually proved advantageous in creating a new world order after 1945.

Unlike Britain and France, for instance, the US had no interest in directly administering either its colonial holdings or defeated capitalist states like Germany and Japan. Lacking anything by way of a professional civil service, it relied on business executives and academics, who rotate in and out of government and who could be counted on to make a complete hash of any country they tried to govern. Instead, the US preferred a series of arm’s-length transactions, in which compliant local regimes would receive military aid in return for keeping the communists down and the doors open to capital inflows. Just as Franklin D Roosevelt had done business with ‘Bourbon Democrats’, even as they lynched black people and rode labour organisers out of town in places like Mississippi and Alabama, the US would do the same with regard to local despots like Syngman Rhee or Ngo Dinh Diem.

As Roosevelt said of Nicaragua’s Anastasio Somoza, he “may be a son of a bitch, but he’s our son of a bitch”. That was the basic operating principle on which an entire global empire was built. The result was old-style federalism, transposed to an international level - an arrangement cemented at the top by a growing profusion of international agencies like the United Nations, the International Monetary Fund, the World Bank, and so on. All were dedicated to imposing a bourgeois concept of the rule of law. Thanks to Jimmy Carter’s ‘human rights’ revolution, the web tightened all the more, as “juristocracy”, to use Ran Hirschl’s term, took hold not only within countries, but between, among and above them as well. Suddenly, no country could to do a thing without running it by US-supervised higher-ups. It was a grand attempt to tie down the Gulliver of democracy with a thousand legal and diplomatic threads.

Ideas that were older than old were used to create a world order that was newer than new - in a strictly bourgeois sense, that is. But imperialism is reactionary, and the ultra-imperialism of the post-war period required the mobilisation of ultra-reactionary ideas going back to the Elizabethans. US constitutionalism enabled America to construct a new world order in its own image - one in which national governments fell into lockstep with one another, as America issued commands. It also allowed the US to combat an Enlightenment ideology like Marxism all the more completely, since America, to a great degree, is still a pre-Enlightenment state.

Macnair ends with a discussion of gridlock, which he attributes to the “capitalist triumph over the USSR” that ended the “deal-making and concessions” that had previously characterised bourgeois politics.13 There is something to this, since Newt Gingrich, whose ‘Contract with America’ kicked off gridlock in 1994, represented a militant upsurge by ultra-right elements, who had led the ‘charge against communism’ and were now determined to rip out the last shreds of liberalism as well.

But success and failure in capitalism go hand in hand. Even as it triumphed over the Soviets, US capitalism found itself caught up in a growing crisis of profitability that required greater and greater concessions from the working class - concessions that led to highly confused in-fighting on Capitol Hill and to an increasingly dangerous build-up of tensions. Everything ceased working, the more temperatures rose. Age-old institutions teetered and swayed, social conditions plummeted, while the quality of political leadership plummeted as well. For years, the United States hovered on the brink of civil war, until it finally went over on January 6.

The result, Macnair observes, could be “desperate attempts to escape from gridlock by looking for a ‘strongman’ to override the paralysis of legislatures”, even though the effect will be to deepen social paralysis all the more. But, equally, it could be “a new birth of freedom”, as the masses overthrow the legal straitjacket and begin constructing socialist democracy in its place.

This, ultimately, is what the question of Tudor versus Whig is about. Overcoming the US-imposed international superstructure is not simply a matter of storming the barricades and planting a red flag in the rubble of the bourgeois state. A good deal has changed since 1917. Rather, it entails figuring what the constitutional superstructure is, where it came from, why it serves to immobilise democracy and how to send it to the dustbin of history, where it belongs.

This requires a thorough-going critique not only of capitalism itself, but of the political conditions that gave it rise. It requires an attempt to come to grips with capitalism not only as an economic system, but as a historical entity.

  1. ‘Trump’s “march on Rome”’ Weekly Worker January 14: weeklyworker.co.uk/worker/1330/trumps-march-on-rome.↩︎

  2. ‘Old regime is cracking apart’ Weekly Worker January 28: weeklyworker.co.uk/worker/1332/old-regime-is-cracking-apart.↩︎

  3. ‘Drivers that led to January 6’ Weekly Worker February 18: weeklyworker.co.uk/worker/1335/drivers-that-led-to-january-6.↩︎

  4. ‘Constitutions ancient and modern’ Weekly Worker September 2: weeklyworker.co.uk/worker/1361/constitutions-ancient-and-modern.↩︎

  5. CH McIlwain The American revolution: a constitutional interpretation New York 1923, p11.↩︎

  6. RR Palmer The age of the democratic revolution: a political history of Europe and America, 1760-1800 Princeton 2014, p753.↩︎

  7. The US Census Bureau tallies the number of state and local governments every five years. For the 2017 data, see table 2 at www.census.gov/data/tables/2017/econ/gus/2017-governments.html.↩︎

  8. H Adams The great secession winter of 1860-61 and other essays New York 1958, p194.↩︎

  9. I Kramniick Bolingbroke and his circle: the politics of nostalgia in the age of Walpole New York 1968, p244.↩︎

  10. ‘Class, state and constitution’ Weekly Worker September 16: weeklyworker.co.uk/worker/1363/class-state-and-constitution.↩︎

  11. marxists.architexturez.net/archive/marx/works/1891/06/29.htm.↩︎

  12. www.youtube.com/watch?v=Wo21LRTc1Uc.↩︎

  13. ‘Decline and decay’ Weekly Worker September 30: weeklyworker.co.uk/worker/1365/decline-and-decay.↩︎