A constitutional manifesto and commentary was published in 1777, in the midst of the American Revolutionary War. “We, the People,” it stated, “should have an influence upon the Government.” This was necessary “for our own security,” it went on, but it was “no less necessary for the security of the Government itself.” What exactly was this document, with its confident invocation of “we, the People”? Was it perhaps a trial version of the Massachusetts state constitution of 1780, the preamble of which contains the ringing “We, therefore, the people of Massachusetts”? Or was it somehow a rehearsal for the opening line from the final draft of a far more famous document, the US Constitution, in 1787: “We, the People of the United States”? It was neither: these lines come from an English translation, published in London, of the Genevan Jean-Louis De Lolme’s treatise Constitution de l’Angleterre.
At one level, then, this is another example of the importance of transatlantic crossings in political thought and language, as in so much else. It seems possible that at some point a politically active American came across this translation of De Lolme’s text and that the phrase “We, the People” entered the constitutional vocabulary of the new United States this way. It is no less possible, however, that the translator of this second English edition of The Constitution of England had been impressed by ideas in the Declaration of Independence of 1776. The first London printing, in 1775, made no mention of “We, the People.” The 1777 version emphatically did.
De Lolme’s book prompts other questions. An interesting political thinker who has recently been rediscovered, he evidently found no difficulty in identifying and celebrating the “Constitution of England.” What did he think this was exactly, and where did he find it?
Apart from a brief period under the Instrument of Government of 1653, which provided for various checks and balances and for a republic governed by an elected Lord Protector who ruled for life but whose position was not hereditary, there has never been anything approaching a codified constitution embracing all of England, Wales, Scotland, and Ireland. This well-known absence had a less recognized consequence. For a long time, it encouraged a vogue in the United Kingdom for constitutional history. By the 1820s, when written constitutions were proliferating throughout South America, as well as in Haiti and parts of Europe, the number of books published in the UK with the words “constitutional history” in their titles was already conspicuously on the rise. Since states across the world were now writing and printing new codified constitutions, and thereby publicizing their identities, aspirations, and modernities, power brokers and patriots in the UK needed to find ways to respond. Unable to flaunt a codified constitution of their own—because there wasn’t one—they invested ink and time instead in celebrating versions of their polity’s constitutional history.
For a while, as the historian Robert Saunders puts it, writing about the English and/or British constitution became “a national disease,” an addiction both of historians and theorists such as Thomas Babington Macaulay, John Stuart Mill, and A.V. Dicey and of many high-level politicians. Lord John Russell, Benjamin Disraeli, and William Gladstone, each of whom served as prime minister in the Victorian era, all wrote books on this “unwritten” constitution. Constitutional history also became a major component of civic education, especially in schools and universities involved in the training of elites. By the early twentieth century, H. Kumarasingham remarks in The Cambridge Constitutional History of the United Kingdom, history undergraduates at Cambridge University were being offered seventy-odd lectures on “English” constitutional history, plus a dozen more on comparative constitutions. The close links between British and American legal systems and constitutional ideas ensured that this brand of constitutional history also secured a place in the curricula of US universities, not least in the Ivy League. At Princeton, where I teach, a big lecture series on “English constitutional history” has only just ceased being part of the course offerings.
Since the mid-twentieth century, however, constitutional history has come under pressure, especially among historians (as distinct from legal specialists), and especially in the UK. Changes in scholarly interests and methodologies have been part of the reason for this. Social historians, who flourished in the 1960s, 1970s, and 1980s, tended to dismiss constitutional history as a fusty, flag-waving, and elite-driven enterprise. For some postcolonialists today, the subject appears overly wedded to the West, the nation-state, and empiricism, as well as neglectful of class, race, and gender. At one level, constitutional history has been damned for paying too much attention to the powerful and to mainly male, often white legislators and leaders. At another level, it can repel those historians of political thought who are drawn to the study of pristine, mainly masculine intelligences, and who are put off by the more mixed and demotic figures and texts regularly involved in constitutional activism.
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None of these objections need prove lethal. But they underline the desirability and importance of a broad reimagining and rewriting of constitutional history. Such revisionism is already well underway in parts of Europe, the Americas, and India. The principal aim of Peter Cane and Kumarasingham’s formidable and valuable assemblage of essays is to offer the first new and capacious treatment in some fifty years of UK constitutional history and, further, to advance the cause of a “twenty-first century renaissance of constitutional history.”
Yet as many of their contributors demonstrate, there are some major structural challenges involved in attempting a revised constitutional history of the UK. To begin with, how do you define the subject? Constitutional scholars usually organize their analyses around specific, widely recognized official texts. In the absence of a single charismatic and current document, the UK constitution can seem to be at once nowhere in particular and potentially almost everywhere. True, there are a rich succession of laws and a wealth of pathbreaking documents. There is the Magna Carta of 1215, which is celebrated on the bronze doors of the US Supreme Court building in Washington, D.C., and on the building of the UK Supreme Court in London. There is the Petition of Right of 1628, the series of Agreements of the People drafted between 1647 and 1649, the Instrument of Government of 1653, and the Bill of Rights of 1689, the two last titles copied by later American legislators. But most of these early texts were predominantly English creations, and this signals a further challenge to the telling of a coherent and comprehensive British constitutional story.
Like virtually all European polities, the UK is a composite, and the boundaries, political identities, laws, and ideological inventions of its various component parts have differed and shifted over the centuries. This is not simply a matter of what are now often styled the “four nations” of England, Wales, Scotland, and Ireland. In addition, these four territories have themselves been subdivided at times. (Ireland still is.) As Simon Keynes and Robin Chapman Stacey describe in these volumes, the Anglo-Saxon Alfred the Great created a famous law code around 890. So, some decades later, did his Welsh counterpart Hywel Dda. Both of these kingly texts became patriotic icons, fabled statements of Englishness and Welshness respectively. But in their own lifetimes, Alfred no more ruled over the entirety of England than Hywel Dda reigned over a united Wales, though he came close.
There is another major issue, though it is less an obstacle than an incentive to further inquiry. The legal and political evolution of what is now the UK has been interbraided with invasions, both its myriad invasions outward across seas and oceans, and—something that is often passed over—invasions of its own territory by others and their ideas. The scale of its maritime empire and its regular export of legal specialists ensured that UK constitutional beliefs and practices became widely implanted elsewhere, with mixed results. As a senior British politician remarked smoothly in the 1960s, “We in Britain have no constitution of our own, but we have quite a lot of experience of writing constitutions for other people.” The more neglected side of this is the degree to which the UK itself has been subject over time to outside influences. As contributions to these volumes make clear, successful incursions into Britain and Ireland by ancient Roman, Norman French, Danish, and Dutch armed invaders all had an impact on political organization, legal practices, and popular constitutionalism. So did recurrent dynastic shifts. Between 1066 and World War I, the royal throne in London was successively occupied by Norman French monarchs, Welsh Tudors, Scottish Stuarts, a Dutch Prince of Orange, and German dynasties linked to Hanover and Saxe-Coburg. This quick-fire succession of royal dynasties and courtiers from different places had more impact than constitutional patriots in the past were sometimes willing to admit or investigate.
Cane and Kumarasingham have responded to these and other challenges by recruiting forty specialists to do duty to different parts of a very long and always contested and plural story. Their first volume identifies and addresses major themes: religion, law, rights, the monarchy, the judiciary, legislatures, and political parties. The second volume is given over to chronology, with fifteen chapters tracking developments from the Anglo-Saxon era to the twenty-first century, and with additional sections devoted specifically to Wales, Scotland, Ireland, and the Empire. Although some chapters sink too much into narrative and there are significant gaps (more is needed, for example, on the nature of legal education in the UK over time), the result is an important work of reference that will aid and encourage more daring and schematic analyses in the future.
Contributors to both volumes rightly stress that too much knee-jerk emphasis on Britain’s uncodified constitution can conceal important parallels between its constitutional evolution and that of other states. As has been the case across continents, both the threat and the actuality of foreign and civil warfare regularly stimulated attempts at legal and political innovation. The baronial opposition to King John that found expression in the Magna Carta, sealed in 1215 and subsequently reissued in amended and more radical forms, was fostered by that monarch’s unimpressive military campaigns against French, Scottish, and Welsh armies. Hence the deliberately ambiguous nickname that was applied to John by his enemies: “Soft-Sword.” The flurry of pathbreaking constitutional documents issued in the mid-seventeenth century was in turn largely a by-product of a vicious civil war that shaded progressively into a revolution. The English Bill of Rights of 1689 and its arguably more radical Scottish counterpart, the Claim of Rights, were similarly results of armed conflict, initiatives prompted and permitted by the expulsion the previous year of the Catholic King James II and VII and an enormous invasion of England by the Dutch Prince William of Orange.
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The waning of official written constitutional creativity in the UK after 1689 was similarly linked to changes in the nature and experience of armed conflict. After that date, on the island of Great Britain (Ireland, as Donal K. Coffey describes here, was another story), there were no more successful nationwide invasions or political revolutions. Instead, the British state turned outward and embarked on a succession of expensive foreign wars. As a result, levels of domestic taxation increased relentlessly over the long eighteenth century (from the Glorious Revolution until the end of the Napoleonic Wars in 1815), and this accelerated the drift of political power away from the monarchy and toward the Westminster Parliament and the tax-levying House of Commons in particular. These same developments also had an impact on constitutional beliefs and mythologies.
The fact that Britain’s legislative body conspicuously gained in strength and reach in the 1700s—a time when many of its continental European counterparts were in decline or dormant—nourished a wide though never unanimous sense of superior British liberties. So strong was this conviction that it helped offset the fact that the proportion of British men who were enfranchised (forget women) grew only slowly before World War I. Simultaneously, a relative absence after 1700 of major civil wars and political revolution on its soil nourished the idea that Britain’s constitutional evolution was quintessentially peaceful and gradual, unlike that of other, purportedly messier countries. You could still catch glimpses of these self-congratulatory visions of superior British governance and British freedoms in the campaign for Brexit in 2016.
Yet it would be wrong to view such political ideas solely as domestic exceptionalism. The worldwide scale of English-language publishing and the spread of universities and colleges in Britain’s colonies after 1850 also fostered the overseas export of its legal and constitutional concepts, conceits, and practices. Kumarasingham cites the example of William Edward Hearn, an Irishman who took up a post in the newly created University of Melbourne in the 1850s. He spent much of the rest of his life seeking to codify the laws of the Australian state of Victoria and celebrating Britain’s “wondrous Constitution, so old, yet stretching forward (if Heaven pleases) to such indefinite futurity.” Such responses were not confined to white settlers. After the Indian revolt of 1857, a proclamation by Queen Victoria promising to improve conditions and freedoms in the subcontinent was promptly hailed there as India’s Magna Carta, a choice of language and imagery favored even by some Indian nationalists into the twentieth century. Only after World War II and the abrupt contraction of Britain’s power was there a more concerted move among anticolonial nationalists to use its constitutional pieties to forge an aggressive critique of the imperial metropolis.
But what now within the UK itself? One of the most arresting and pertinent chapters in this collection is Vernon Bogdanor’s “The Twenty-First Century Constitution.” He argues that while the notion that radical constitutional change is alien to the UK still lingers within its borders, and certainly does so among many foreign observers, the reality in recent decades has been very different. What has been happening is, in part, a belated process of catch-up. World War I, like earlier major conflicts, quickened the rate of constitutional and political change in the UK, accelerating the progress of female suffrage and facilitating the partial independence of Ireland. World War II, by contrast, led less to immediate political alterations than to a social revolution: the rapid expansion of the welfare state. The ten-year rule of a new Labour government after 1997, however, marked a sharp return to constitutional activism and reform.
In 2009 the UK finally secured a Supreme Court. In certain cities and regions of England, there are now directly elected mayors, who are likely over the next few years to secure greater powers. Despite Brexit, the rights set out in the European Convention on Human Rights (to which UK lawyers made a major contribution) remain incorporated within domestic law, much to the fury of some current right-wingers. The House of Lords was mildly reformed in 1999, with a reduction in the number of hereditary peers allowed as members, and further changes are on the way. There is now a Freedom of Information Act providing for a statutory right of access to government information, though arguably still with too many exemptions. Scotland, Wales, and Northern Ireland now each possess their own parliaments to which certain fiscal and lawmaking powers (though not enough) have been devolved by the Westminster Parliament. At the same time, there has been a striking transformation in the composition of the UK’s political personnel. Since 1997 the proportion of minority members of Parliament has expanded more than sixfold, a higher rate of increase than that achieved in any other European state legislature during this period. So with all these changes already accomplished or underway, does the UK really need a new codified constitution?
The question possesses fresh relevance because, as is regularly pointed out, we are now living dangerously and excitingly in a year of elections. Sixty-four countries, containing close to half of the world’s population, are going to the polls in 2024. Thus far the results have been distinctly mixed. In some—Russia and (perhaps) Venezuela—one-party and/or autocratic rule has been preserved. In others, such as Turkey and India, the trend toward greater autocracy continues but has become somewhat more difficult for the ruling group; while in parts of Europe—Holland, Germany, Italy, Portugal, and to a degree France—right-wing parties have made gains at the ballot box. In the UK and the US, however, the situation appears rather different. These two polities are arguably at present in a time of leftward shift and also, again, of certain transatlantic crossings and parallels.
In the UK, on the emotive date of July 4, the Labour Party, out of power for the previous fourteen years, won 411 seats in the House of Commons, almost 300 more than its Conservative opponents. Since then, there have been some (swiftly suppressed) riots on British streets. But these were not by-products of this dramatic election result, which has been quietly and constitutionally accepted. Pace Elon Musk, there seems no risk here of civil war. In the US, the presidential election in November has rapidly become competitive, and whatever the end result, there has been a signal change. A month or so ago it was a struggle between two old white men, one of whom may—or may not—have claimed that the American Constitution gave him “the right to do whatever I want.” Now there is at least a possibility that by next year the US will have its first female president and its first Asian American president.
Yet there is a risk that these parallel excitements and achievements—the onset in the UK of a dominant Labour government and the prospect in the US of a youngish, multiracial female president—will cast a seductive glow around two political systems that both require substantial structural changes and rethinking, not just alterations in governing personnel. Of course, there are issues specific to each of these systems. But they share some similar constitutional challenges. In both, and especially in the much richer United States, moneyed and plutocratic lobbies have come to exercise undue political weight. Americans had “very few rich men among them,” boasted a delegate at the Philadelphia Convention in 1787: “By rich men I mean those whose riches may have a dangerous influence.” Things have changed somewhat since then. And in both the UK and even more so in the US, the nature of the national voting system unduly favors just two main political parties, thereby squeezing out smaller parties along with many shadings of opinion.
But the biggest constitutional problems faced by these two polities are mirror images of each other. As Aziz Rana has argued recently, Americans find themselves in something of a constitutional bind. They can be lulled into complacency by the privilege of having such a famous, long-established written constitution. Simultaneously, they are held back by its age and by the difficulties involved in amending it to suit an utterly different time and world. In the UK, conversely, the problem is not an old written constitution in need of reform and reevaluation but rather a marked absence of constitutional clarity and (often) of constitutional knowledge. “There is no written constitution,” the American justice William Paterson remarked scornfully of the people across the Atlantic in 1795, “no fundamental law, nothing visible, nothing real, nothing certain.”
Some would argue that the only solution to this is for the UK finally to generate its own new codified constitution. At present, this seems highly unlikely. But given the scale of the UK’s constitutional changes in recent decades, and the many other changes it is passing through, its constitutional arrangements need at the very least to be made much clearer and more knowable. Its mixed peoples need to know more about the state they’re in.
