Blackstone

2003-12-28

Those of a libertarian persuasion generally have nothing but disdain for Alexander Hamilton and the other early centralizers in the history of American government. Not for us the rhetoric of government privilege and central powers; no, we prefer the Jeffersonian language of individual rights and of keeping power as local as possible (Jefferson's mantra late in life was divide the counties into wards).

J.C.D. Clark's book The Language of Liberty 1660-1832 shines a strong light on the origin of American centralization. I've just finished part one of this book, but already much has been revealed. Clark situates the framing of the American constitution within older English legal and religious traditions regarding sovereignty, patriotism, and absolutism. In particular, he points to the enduring influence of Blackstone's legal theories on the absolute supremacy of the triumvirate of King, Lords, and Commons, which the American framers could not escape (and which are reflected in the American system of executive, judicial, and legislative branches of government). Despite the revolutionary language of insuperable natural rights, American state-making quickly devolved into power politics through the triumph of the Federalist (i.e., nationalist) vision:

[The Federalists] adhered to the idea of indivisible sovereignty.... The Constitution explicitly made itself and federal law 'the supreme law of the land', overriding State constitutions and legislation; otherwise, the new nation would have been 'a monster in which the head was under the direction of the members'. The President would necessarily be the commander in chief of the armed forces, just as Blackstone had recognized the same prerogative in the king. The Federalist defined law in Blackstonian terms as command; 'Government implies the power of making laws'. Each nation must contain one court with final jurisdiction. The national government must have the power to raise revenue: the Antifederalists's distinction between internal and external taxation was invalid. All these characteristics were wholly Blackstonian. The Revolution was not what it claimed to be in this key respect: Americans' use of natural law tropes as a critique of the common-law sovereign had, after all, been only skin deep.... [pp. 135-136]

... and, using the distinction between federal [national] and confederal [distributed] arrangements ...

The new nation could indeed claim, echoing The Federalist, that it possessed (to use the new vocabulary) both federal and confederal elements; but the course of events, confirmed by a second civil war in the 1860s, was to prove that the confederal element was ultimately subordinate. The division of powers between President, Congress, and Supreme Court and the States endowed the republic with a system of government which was merely cumbersome, not one in which sovereignty was effectively divided. The American Revolution had not been as carefully legalistic as its advocates had claimed. It had begun amid expressions of the most lofty ideals; but it was soon dragged back to the compromises, expediencies, and necessities of daily politics (if indeed it had ever left them). It was because the Revolution was at its ideological heart a war of religion that the federal experiment failed: the theological setting of the argument over sovereignty prevented Americans from exploiting those rival traditions, tainted as they were thought by Roman Catholicism, within which authority might have been lastingly divided. The unitary republican state, too, could now be expressed in idealistic terms. The Federalists, to secure the adoption of the Constitution, had argued, and argued indelibly, that the power of the people was 'paramount to every constitution, inalienable in its nature, indefinite in its extent'. Sovereignty in the United States therefore proved to be as transcendent and absolute, as despotic and uncontrollable as in the United Kingdom; the final irony of the American Revolution was that Sir William Blackstone's analysis prevailed in the end. [pp. 139-140]

It makes for depressing reading.


Peter Saint-Andre > Journal