Constitution

5. Hudson and Sharp, Australian Independence (29 January 2024)

by kurto

Australia’s independence ought to be dated to 11 December 1931, when the Statute of Westminster took effect, finally devolving legislative power to the country as well as the sister dominions of Canada, the Irish Free State, New Zealand, and South Africa. Diplomatic sovereignty had been granted in 1923, followed by the 1926 and 1930 release of executive powers (i.e., disallowance, reservation, annulment of the Colonial Laws Validity Act) and the assignment of governors-general as responsible to national ministries. Notwithstanding continuing anomalies, the substance of facts make 1930 sufficient.

1901’s federation established the potential for independence but not its lawful basis. Though newly united, Australia hadn’t fully separated from the United Kingdom; the states remained bound to the crown; and the governor general remained responsible to the king, in the tradition of English government as the sovereign’s government.

The transition was driven by Canada, Ireland, and South Africa, running contrary to the Australian political will and transpiring with little public appreciation. Four elements fueled interest in imperial continuity: defense, race (culture), economy (loans from London), and status (British hegemony). Neither the Canadians nor the South Africans depended on British security; both the Canadians and the Irish (given the same status in the 1921 agreement) objected to their inability to amend their own constitutions; the Irish rejected personal union under the king. Whereas through the 1920s, Aussie leaders tended to be born in the UK. Only the New Zealanders sided with Australia on defense; but the British had been withdrawing from the ‘far East’ since before World War I, save for the 1923 construction of Singapore’s naval base. There was no practical means of international cooperation within the Commonwealth because there was no prior imperial body, only Whitehall.

At the 1923 imperial conference the UK determined to allow the dominions to make international treaties: paradoxically, external affairs preceded domestic matters. Executive independence emerged from the 1926 conference, as a political bargain between the ‘radical’ dominions which aimed to appease domestic nationalists and the UK’s wish for equivocation on the crown’s role and the continuing projection of imperial unity. The Balfour formulation established that: ‘[The Dominions] are autonomous Communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations’. (p. 93) The radicals then focused on autonomy, the Australians on common allegiance. (Newfoundland was also a dominion but too small to wield influence.)

By 1929/30, disallowance and reservation of dominion legislation as well as Colonial Laws Validity Act were to be jettisoned; but the Canadians and the Irish technically had to ask the UK to revise their constitutions, so the Westminster statute was promulgated. The Australians insisted on proactively adopting the statute, and delayed doing so: opposition party leader John Latham provoked the states to protest to UK on the spurious grounds of Canberra’s intrusion into their matters. Then James Scullin’s Labor government fell, and though Robert Menzies proposed adopting Westminster in 1935 and 1936, it wasn’t established until 1942 under John Curtin, largely to facilitate the trans-shipment of war material, there being no public pressure nor motivation for politicians. The states didn’t sever from the UK until the 1986 Australia Act.

20. Mancoll, ed., ‘Reassessing Ideological Origins’, New England Quarterly 151(1); (8 October 2022)

by kurto

A collection of essays addressing aspects of Bernard Bailyn’s

    Ideological Origins of the American Revolution

, on the occasion of its 50th anniversary of publication. The work has stood up quite well, notwithstanding the radical changes in historical fashion.
• Bailyn: the author writes of his continuing interest in those moments when familiar words / constructs take on new meanings, and still holds the Revolution’s primary interest was safeguarding liberty against power and corruption
• Rakove: Bailyn cut the Gordian knot of ideas versus economics as the tumult’s driver by demonstrating attitudes had already changed and how these changes explain actual events
• Slauter: Perry Miller influenced Bailyn to consider Puritan writings along with classical and Enlightenment documents
• Wood: The Patriots were more involved in social revolution than Ideological Origins acknowledges, since in the 18th century society and government were indivisible. (French Revolutionary theorists faced the problem of ‘modern’ private property separate of government power.) He got the political thought right not but the social change. That is, Bailyn’s student is enunciating the thesis of his Radicalism of the American Revolution
• Even if ideas don’t cause behavior, one needn’t entirely concede the impetus to materialist or psychological factors (i.e., hidden motivations)
• Bilder: Bailyn pinpointed the process of America’s discovery the virtue of written constitution
• Nelson: For Burke, the American Revolution was borne not of theory but by practice and consequently of the people’s character
• Political though and political consciousness are distinct. 18th-century America saw the world as it di not because it was an ideological support for its way of life and society but because they were 18th-century Americans
• Pincus: In an interesting comparison to contemporary Irish politics, asserts the upheaval of the 1770s-80s exhibits political discourse very similar to the American Revolutionary era (e.g., corruption, liberty, virtue). Grattan’s failure to push through a Billing of rights in 1780 marked the turning from Stormont to the Volunteers, analogous to the Committees of Correspondence. But Pincus carries too far in suggesting the American process was ‘not exceptional’ – there is no record of 150 years, as in America

5. Sandoz (ed.), Roots of Liberty (26 March 2022)

by kurto

A series of essays exploring shifting interpretation of England’s ‘ancient constitution’ and Magna Carta, sweeping from Fortescue to Augustan England and colonial America, addressing the charter as emblematic of Saxon culture, original intent, rule of law and government by consent, and the source of executive power. Effectively premised on JGA Pocock’s

    Ancient Constitution and Feudal Laws

, the contributors agree one’s views on such topics as the rights of subjects (e.g., trial by jury of peers) and limits of authority are relevant not only to jurisprudence but also the political conditions of liberty. Pocock had observed (among other things) that it was judicial process, rather than black-letter law, which was immemorial. Sandoz writes Fortescue and the common law grounded Coke’s opposition to the monarch. Holt observes Magna Charta was both a grant of liberties and a legislative act. Brooks writes, somewhat against the grain, that 16th-century lawyers were little concerned with constitutional theory and more interested in humanist (neoclassical) law. Christianson, sketching the skirmishing between early Stuarts (i.e., James I’s absolutism) and the Parliamentary opposition (Selden’s mixed monarchy, Hedley’s constitutional monarchy grounded in common law) which came to blows in the Five Knights case and provision of supply, essentially pitted rival views of the ancient constitution rather than absolutism vs constitutional government. Reid: 17th- and 18th-century lawyers thought the ancient constitution gave Parliament and common-law courts standing against arbitrary monarchy (which resonated with American revolutionaries). The common laws which had survived were the best evidence of English liberty. (Later, Burke held prescription the most solid of the titles to property, custom being the proof point of time time.) The merit of ancient constitution was security against government caprice – in an unwritten charter, no element was more essential to thwarting slavery to government. Reid adds: in this era, forensic historical work deployed the ancient constitution for proof of authority, establishment of consent, and bulwark against new government claims; in the latter century, the British chose government by consent (i.e., king in parliament) whereas the Americans settled on rule by law (following Coke, not a sovereign granting rights but a people delimiting executive power). The Saxon constitution represented liberty; the Norman charter arbitrary power; the Americans converted the dynamic to the notion of original intent. He asks why English lawyers, alone in Europe, sought to formalize understanding of rule of law – a matter now relevant to American originalists (vs progressivism) and Brexiteers (vs European Unionism).

8. Morgan, Birth of the Republic, 1763-89 (27 Apr 2016)

by kurto

Surveys the Revolutionary War era, demonstrating America’s founding is a product of shared search for principles of civic equality and justice. As with Burkean or Whig historians, Morgan argues for a revolution not made but preserved; this effort covers the details of articulating protest, organizing around the colonies’ common political views, and ultimately framing the American Constitution. The work’s eloquence lies in persuasively tying emergent principles to facts on the ground. A 21st-century analysis would hit harder at the moral failure to dispose of slavery — but then most latter-day treatments pettifog in ways which Morgan surmounts. Interestingly, the author contends the Articles of Confederation were not quite as dire as commonly held, and ties the Bill of Rights to the Constitution’s adoption by the states as a quid pro quo.

9. Paulsen and Paulsen, The Constitution (18 May 2016)

by kurto

Illustrates vital political concepts and shortcomings in the American constitution, before going on to narrate five distinct periods of jurisprudence: to 1860, postbellum, to World War II, to 1960, and the current activist era. The Constitution does not establish judicial supremacy but the document’s supremacy: it is intended to surmount the clash of opinions. The authors view the document as broadly successful, save for the stunning failure of allowing slavery, because it has tended to move toward justice rather political fashion. But the justices themselves have often stood in the way of progress for long periods of time, and continue to legislate from the bench. The heroes in fact are Lincoln, Frederick Douglas, and others who have fought for the Constitution’s preservation and the revision of its application.

8. Bagehot, English Constitution (2 Jun 2019)

by kurto

Studies British Parliamentary government, setting aside theory for normative analysis of function and drawing favorable contrasts with the American presidential system. Constitutions have dignified and efficient parts, the latter often more important than formal allocation of power. These gain stature through passage of time, even though yesterday’s conventions are not necessarily best suited for today’s affairs. The efficient secret of the British constitution is close union of the legislature (i.e., Commons) and the executive (the prime minister and responsible cabinet). Relations between the PM and Parliament are incessant, unlike the needlessly divided president and congress, and cabinet ministers further are better supervisors of the bureaucracy because they provide fresh views while being accountable to Commons. That is, English party government exposes the leadership both to functionaries and the requirement of maintaining a working majority. The USA’s splitting of sovereignty, by contrast,  is particularly troublesome in times of crisis; Bagehot observes it’s well the Americas are law abiding. There are also valuable takes on political affairs: so long as there’s an uneasy class which lacks just power, the agitators will rashly believe all should have equal power; gross appearances are great realities; bureaucracy conflates substance of government with process, thereby overdoing quantity at expense of quality; in early societies more important for law to be fixed than good. A surprisingly resilient analysis.