Mike Macnair shows that the US constitution modernised the English constitution - no monarch, no hereditary peers, no state church - but made the interests of capital more secure against the lower orders
I ended the last article in this series with the observation that, by the later 18th century, it was clear that capital had found in the English (‘British’) constitution1 a model adequate to its needs.2 But this immediately triggered global consequences: it is simply false to analyse the emergence of either capitalism as a social order or capitalist political power as a process taking place in separate national transitions unconnected with each other.
Feudal-absolutist France suffered a series of failures to reverse the verdict of 1688: 1688-97, 1701-13 and the Jacobite rising of 1715, 1740-48, the 1745 and 1748 expulsion of the Jacobite claimants from France, and 1754-63 - ending with the French decision not to place serious reliance on the Jacobites in their intended 1759 invasion of Britain (prevented by French defeats that year).3 The result was that the British constitution became a model of modernity, influencing - through intellectual images of it - later constitutions.
The first consequence here is the idea of a model of modernity itself - which involves a transition away from the idea of an ‘ancient constitution’ as the foundation of the rule-of-law state. The point is that the celebration of 1688 as innovative rather than restorative, and both the idea of a general tendency to human progress and the related idea of ‘stages’ of history became generally available ways of thinking about history in the early-mid 18th century.4 These are connected to the broader idea of ‘Enlightenment’, which is usually, though not invariably, attributed by historians to a later period.5 Indeed, some historians offer to explain either the American and French revolutions or the ‘industrial revolution’ (or both) purely by Enlightenment ideas.6
But this is to misunderstand their impact: in the absence of the economic and military successes of the Netherlands and England in the 17th-early 18th centuries, images of progress, stages of history and Enlightenment, would have had no purchase. The Italian city-states (in contrast) in spite of their manifest strength and wealth in the later middle ages, gave rise to images of the restoration of Rome - or, as it came to be called, the ‘Renaissance’.
Nor did technology on its own make the difference: gunpowder, European ‘explorations’ (predation) beyond Europe, and printing could all be accommodated under the project of Spanish-Habsburg universal Catholic monarchy (complete with the Inquisition and limpieza di sangre, or ‘purity of blood’, attempted genocides). Enlightenment ideas were made plausible by the creation of state forms - Netherlands and England - adequate to the new technology and new social relations.
The consequences are with us still. ‘Enlightenment’ ideas of progress, and early political economy, are ideologies of how other countries can get the benefits of Netherlands and English success, and of one side of capitalism - the freedom and equality of the market - without the other side of it - the requirement of personal subordination. This latter is required by capitalism as a regime where capitalists possess large-scale means of production - since possession of anything more than personal belongings requires subordinates: slaves, sons-in-power and tenants in antiquity, villeins and the bailiffs who supervise them (and such-like) in medieval society, employees and agents in modern society.
And it is also given by the necessary conflict between capital and labour in large-scale proletarian production, which in turn requires the subordination of labour. As Marx put it in Capital volume 1 at the end of chapter 6,
This sphere that we are deserting, within whose boundaries the sale and purchase of labour-power goes on, is in fact a very Eden of the innate rights of man. There alone rule Freedom, Equality, Property and Bentham. Freedom, because both buyer and seller of a commodity, say of labour-power, are constrained only by their own free will. They contract as free agents, and the agreement they come to is but the form in which they give legal expression to their common will. Equality, because each enters into relation with the other, as with a simple owner of commodities, and they exchange equivalent for equivalent. Property, because each disposes only of what is his own. And Bentham, because each looks only to himself. The only force that brings them together and puts them in relation with each other is the selfishness, the gain and the private interests of each. Each looks to himself only, and no-one troubles himself about the rest and, just because they do so, do they all, in accordance with the pre-established harmony of things, or under the auspices of an all-shrewd providence, work together to their mutual advantage, for the common weal and in the interest of all.
On leaving this sphere of simple circulation or of exchange of commodities, which furnishes the ‘Free-trader Vulgaris’ with his views and ideas, and with the standard by which he judges a society based on capital and wages, we think we can perceive a change in the physiognomy of our dramatis personae. He, who before was the money-owner, now strides in front as capitalist; the possessor of labour-power follows as his labourer. The one with an air of importance, smirking, intent on business; the other, timid and holding back, like one who is bringing his own hide to market and has nothing to expect but - a hiding.7
This one-sidedness of Enlightenment/progress thought implies the necessary presence in capitalist life of its opposite - ‘counter-Enlightenment’, which ideologises the necessity of inequality and subordination and cloaks it in politics of nostalgia: the virtues of the medieval, the organic unity of the nation, Christian Social Teaching (and its anti-Semitic offshoot), the Islamic umma as a political project, and so on.
‘Progress’ and ‘stages’ history, moreover, was as much a poisoned chalice for capital as Roman law had been - but in the other direction. The problem is that, if there has been progress from antiquity, through feudalism, to capitalism, it logically implies that there may be a future beyond capitalism: an idea which is capable of inspiring self-organisation of capital’s subordinates, especially the proletariat, and challenges to capitalist authority. The result is that, while ‘progress’ and ‘stages’ continue to appear in ideologies - for example, in Fukuyama’s ‘end of history’ and similar productions - arguments for the rejection of stages theory are far more commonly heard.
We are invited to reject ‘stages’ history in the name of the Weberian idea of ‘traditional’ society only overcome by ‘industrial rationality’; or in the name of the ‘modernist’ approach to classical antiquity, which inverts Weber and sees in feudalism only a temporary, erroneous rejection of the supposed free-market approach of the Romans; or on the basis of Herbert Butterfield’s critique of ‘Whig history’; or on the basis of a variety of claims, which make systematic ideologies paramount (Michel Foucault, and so on); or by the claim that stadial history is ‘Eurocentric’. But all of these theories have as their underlying aim to show that longue durée history gives us no ground to believe that a future beyond capitalism is possible. It is a paradox of some Trotskyists’ opposition to ‘stagism’ that it produces the same result: socialism ceases to be grounded in historical dynamics and becomes merely an ethical imperative.
I have discussed this issue at this length here because ‘Enlightenment’ and associated ideas radically shift the case for constitutions. The rule-of-law state can within the ‘Enlightenment’ framework be understood as a necessity of market ‘modernity’. Hence countries which had prior failed ‘ancient constitution’-ist movements (as France, or Germany, in the early-mid-17th century) could now argue for a rule-of-law constitution on a new basis: what became liberalism in the 19th century. And constitutions as ‘Enlightened’ politico-legal engineering can be re-engineered - not only through revolutions, but to meet more immediate political needs. This is part of the context of the 18th-19th century phase of constitution-making.
On the other side, local self-government was an idea current in feudal society, under which the urban lower classes could be mobilised in support of their local leaders against kings, barons and bishops - but, once bourgeois power had been created, it was necessary for the lower classes to be held in subordination, as we saw in the last article. Protestantism was a late-medieval heresy, which as Calvinism could take the form of a nomolatry (law-worship) and as such an ideology of capitalist rule. As congregationalism Calvinism could, again, mobilise the lower classes against monarchies and the church. But again, once bourgeois power had been created, these lower classes had to be subordinated - to the Regent class in the Netherlands, to the gentry and merchant and financier elites in Britain.
Enlightenment ideologies are partly different, in that, rather than growing out of contradictions in the feudal order, they grow out of one side of the fundamental contradictions of capitalism itself. Their one-sided character, growing out of the freedom, equality and independence of the market-place, means that they too can appeal to the lower orders for mobilisation against their enemies. But here too it is necessary for the hierarchical aspect of capitalism to be reasserted and the ‘party of order’ to return against the lower classes: in Britain, the return of Toryism; in the US, the Enlightenment declaration of independence and mobilisations of 1776-83, succeeded by the anti-majoritarian constitution of 1789; in France, the revolution followed by Thermidor and Bonapartism, and the 1848 revolution by a new Bonapartism - and so on. The need for the capitalist class to have guarantees against the lower classes - peasants, artisans and proletarians - is not a novelty of 1848 or an effect of capitalist decline, but a normal feature of the capitalist class’s struggle for power - as Marc Mulholland has argued in Bourgeois liberty and the politics of fear (2012) though for slightly different reasons to those he gives.8
The American colonies were in the 18th century capitalist colonies of a capitalist state. I have already argued the reasons for supposing that England was a capitalist state after 1688. To say that the American colonies were capitalist colonies is to say that they were like the trading outposts and plantation colonies of Venice and Genoa, of Genoese-financed Portugal and of the Netherlands before them; and that they were like the ‘normal’ colonial and semi-colonial operations of the 19th and 20th century after them.9
The point is that they were not colonies of the ancient type, which created cities in imitation of the existing cities which founded them, or of the Roman imperial variety, which spread a common political economy and culture across the reach of the empire.10 Nor were they (simply) expansions driven by landlord and peasant land-hunger, like the German Drang nach Osten, the Spanish Reconquista or the English medieval expansions into Wales and Ireland.11 Rather, in capitalist colonialism, the economy of the colonial possession was (and is) adapted to the economic interests of the imperial metropolis. Direct competition with metropolitan capitalist businesses interests was (and is) discouraged; but ‘lower-value-added’ activities are located in the colonies, which feed the metropolis with raw materials, with food supplies or (in modern times) with cheap hardware to run expensive software.
It is banal that this was the long-standing policy of the English - and post-1707 British Board of Trade: that the colonies should be sources of raw materials, and markets for manufactured products, but not rival manufacturers or shipping operators. A single example, from a Board of Trade paper from 1709: the Privy Council should not approve the creation of new port towns in Virginia, since
the establishment of towns and incorporating of the planters, as intended thereby, will put them upon further improvements of the said manufactures, and take them off from the planting of tobacco, which would be of very ill consequence, not only in respect to the exports of our woollen and other goods, and consequently to the dependance this Colony ought to have on this Kingdom, but likewise in respect to the importation of tobacco hither for the home and foreign consumption; besides a further prejudice in relation to our shipping and navigation.12
This is normal capitalist-state behaviour. The argument to the contrary is the idea that ‘mercantilism’ is pre-modern and ‘industrial’ capitalism pursues the ‘modern’ policy of ‘free trade’. But this is mistaken. ‘Free trade’ is merely a mercantilist policy in the interests of an already dominant capitalist power; and it is in the name of free trade, and the supposed ‘comparative advantages’ of specialisation, that subordinate countries are now told that they must stick to raw materials (etc) production - a policy backed by International Monetary Fund ‘structural adjustment’ programmes and all the rest of the ‘international community’ coercive apparatus of the US-led world regime.13
The 13 colonies on the east coast of America, New England and the ‘middle colonies’ were there (from the imperial point of view) to supply Britain with timber for shipbuilding, salt fish and whale products. The ‘southern colonies’ were mainly sites of slave-worked plantation agriculture, producing tobacco, rice and indigo, and just beginning to produce cotton. Alongside these imperial outputs, the population, of course, had to be fed by local agricultural production, and this supply was by market-oriented farmers of the same sort that could be found in England.14 And the colonies also served as a dumping-ground (on a very large scale) for incorrigible repeat offenders, whose crimes were not seen as so serious that they had to be hanged.15
English control was political, not just economic - though, as I have pointed out above, this is also true of modern ‘semi’ or ‘neo’ -colonial relationships. In particular, as Mary Sarah Bilder has shown, ‘judicial’ review of the local legislation of the colonies, by the Privy Council, was a normal practice.16 This was a divergence from the English law of local authorities and other corporations, where the Privy Council was barred from exercising jurisdiction on the mainland by a section of the act for the abolition of Star Chamber, 1641 and judicial review of local legislation had moved into King’s Bench.17
Tory and Whig
The removal of the Jacobite-French threat reduced the need for the British themselves (and the British and their colonists) to hold together against this threat. On the one hand, the Tories - historically the party of Jacobitism - were gradually let back into government at Westminster. Relatedly, there began to be increased use of high-prerogative constitutional arguments. Probably also associated were the more serious efforts to extract tax funds from the American colonies towards the cost of their defence, and - at the same time - to make more serious efforts to enforce the Navigation Acts.
This meant a substantial increase in the tax burden in the colonies. But, since it was primarily about excises, it also keyed into an existing political discussion, which the Tories and the ‘Patriot’ or ‘Country’ opposition in the 1730s (who were willing to cooperate with the Tories for limited purposes) had used against Robert Walpole’s excise scheme: that excises fell to a large extent on classes which did not have the vote, and were hence ‘taxation without consent’ or ‘taxation without representation’. The objection had been revived in England by Whig opponents of Bute’s ministry in the ‘cider excise’ dispute in 1763; it was to be a major issue in the American revolution.18 Further, the Stamp Act 1765, as a tax specifically on the press, was an anti-Enlightenment measure - though one, in fact, already introduced in England in 1712 (by a Tory government) with a view to increasing press oligopoly and hence the manageability of the press by government.19 Both the cider excise of 1763 and the Stamp Act 1765 were defeated by extra-parliamentary opposition, leading parliament to withdraw them, and the Americans may reasonably have thought that a repetition in 1775-76 would succeed.
The Navigation Acts issue was not a formal change of policy, but a change of enforcement. The imperial government, with the French threat gone, no longer felt the need to compromise with the colonists by ‘salutary neglect’ of the laws.20 And it also abandoned the ‘Restoration’ and post-1689 ‘Whig’ approach to revenue and regulatory enforcement, through private informers for reward acting through common law procedures, in favour of the old ‘Tudor and early Stuart’ (and hence ‘Tory’) approach of acting through prerogative courts, which required the defendant to incriminate him or herself through compulsory examination on oath.21 The point is not that the Navigation Acts were a serious and effectively enforceable direct economic burden on the New England and Middle colonies - which were primarily affected (economic historians find them marginal). It is that the Tory-inflected administration in Westminster had chosen to revive methods of enforcement which went back to pre-1641.
Conversely, the return of Toryism in government meant, on the other side, the return of Whig radicalism - as opposed to the ‘Court Whigs’ of the first half of the century - in opposition, and taking up ‘country’ themes which Tory oppositionists had tried with less success to promote before. And this was true on both sides of the Atlantic. It meant the revival of debates over suffrage; over freedom of speech and press; over the militia; and over the relations of judge and jury.22 There was a strengthening, too, of anti-slavery sentiment; this was a ‘softer target’ than other British political issues, and in 1772 in Somerset v Stewart the Court of King’s Bench, in spite of the caution of the actual content of Lord Mansfield CJ’s judgment, radically undermined the security of slave-owners’ property in slaves who managed to escape.23 This was a much more serious threat to the US plantation colonies, with their land borders, than to their Caribbean island equivalents.
The point is that 1776-83 was a political, not a social, revolution. State power was not transferred from one class to another and social relations were not transformed. What changed was political power and political ideology. It is entirely possible to imagine - though it did not in fact happen - either that the British won the war of 1776-83, in which case the American colonies would have evolved towards an ‘Irish’ status of much more subordinate colonisation; or, conversely, that radical Whiggism won out in 1760s/early 1770s Britain and in consequence the objectionable policies of the Westminster government in North America were abandoned, like the 1765 Stamp Act.
The Declaration of Independence, as I said earlier, is a very ‘Enlightenment’ document. The revolution, though merely political, was for all that a revolution, and hence for a while ‘let loose’ lower orders: in particular debtor interests seeking ‘soft money’ policies. Hence in the 1789 constitution, article 1, section 10:
No State shall enter into any Treaty, Alliance or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts ...
And setting the new states free from the common enemy at Westminster posed more or less immediately the conflict of interests between the northern states and their southern, plantation-based, counterparts, whose cash-crop economy was more immediately dependent on trade relations with Britain. The 1789 constitution is, then, about holding down the lower orders - but also about protecting both the sections from each other, by way of the counter-majoritarian Senate, the special rules for counting slaves for the purposes of congressional representation, the tight amendment procedures, and so on.
Judicial review of legislation in a sense ‘descends from’ the pre-revolutionary Privy Council practice, just ‘brought home’; but it also follows logically from the designed imposition of limits on elected bodies in the 1789 text. And it implies much greater (though not complete) security of investments against legislative action than was available in the UK until European Union accession in 1973.
The result is a constitution that is both ‘modernised’ relative to the British constitution (no monarch; no hereditary peers; no state church; etc). And it is also, in fact, more secure against the lower orders than the British constitution would have been if, by chance, Britain had lost the restrictions on the right to vote without in parallel taking away the powers of local authorities and the scrutiny powers of the Commons, reducing trial by jury, and so on.24 In this case it is easy to imagine a sovereign parliament and powerful local authorities taken over by the proletariat - as, in fact, the left wing of the Chartists did imagine.
There is a curious, but important, side lesson. This is that British capital found - after the revolutionary war itself, and after the stresses of the French revolutionary and Napoleonic wars and the consequential UK-US war of 1812 - that they did not actually need Westminster legislation and Privy Council review to protect their interests in the former American colonies, now that independent British interests in the US were well-served by the constitution. The constitutional veto power of the plantation-economy south blocked northern efforts to introduce tariffs for industrial protection (until the 1861-65 civil war). Equally, the lower classes could be harnessed against US industrial and commercial capital, so that the wider suffrage in the US repeatedly defeated federal projects for a central bank - implying, almost certainly, continued dependence on London financial facilities.25 Rule-of-law constitutionalism serves capital via its money form. Hence - as we have seen in post-1980s Latin America and elsewhere - it can serve very effectively to subordinate the local state to the dominant imperialist power (now the US).
It took the civil war to actually achieve full US independence. By then, Britain was in relative decline, though still absolutely dominant; and alternative models of capitalist constitutional order were available. The US model was not to become dominant until the results of 1914-45. But the model of the US that actually won the wars was also a model which mitigated the anti-majoritarian character of the constitution of 1789 through ‘constitutional conventions’ operating in all the branches of government. Constitutional immobilism seems to be a more recent revival.
I use ‘English’ in general here because the 1707 union did not imply the full export of English social relations to Scotland: N Davidson Discovering the Scottish Revolution 1692–1746 London 2003. Wales has to be thought of in this period as significantly Anglicised, with divergence yet to come. See, for example, N Powell, ‘Do numbers count? Towns in early modern Wales’ Urban History Vol 32, pp46-67.↩︎
‘Class, state and constitution’ Weekly Worker September 16: weeklyworker.co.uk/worker/1363/class-state-and-constitution.↩︎
There is a convenient summary on Wikipedia at en.wikipedia.org/wiki/Planned_French_invasion_of_Britain_(1759).↩︎
Celebration of 1688: K Wilson, ‘Inventing revolution: 1688 and 18th century popular politics’ Journal of British Studies Vol 28 (1989), pp349-86. Progress: D Spadafora The idea of progress in eighteenth-century Britain New Haven CT 1990. For the ‘stages’ theory of history and the intellectual origins, see, for example, I Hont, ‘The language of sociability and commerce: Samuel Pufendorf and the theoretical foundations of the “Four-Stages Theory” in A Pagden (ed) The languages of political theory in early-modern Europe Cambridge 1987; ‘feudal’ as a superseded stage is already in the fragmentary work of English legal writer Jeffrey Gilbert, writing around 1700: see M Lobban (ed) Jeffrey Gilbert on property and contract Vol 134, London 2017: Introduction at ppccii-cxvi summarises the context.↩︎
J Robertson, The case for the enlightenment Cambridge 2005 ch 1 has a convenient discussion of the literature.↩︎
J Israel Radical enlightenment Oxford 2002 (political revolutions); J Mokyr The enlightened economy London 2009 (industrial revolution).↩︎
For “slightly different reasons”, see my review of Marc Mulholland’s Bourgeois liberty and the politics of fear in ‘Bourgeois or capitalist?’ Weekly Worker July 17 2014: weeklyworker.co.uk/worker/1019/bourgeois-or-capitalist.↩︎
This is to distinguish as not ‘normal’ the East India Company plunder-state in late 18th/early 19th century India, or the more or less irrational competitive territorial acquisitions of the ‘scramble for Africa’.↩︎
On Greek colonies, there is a convenient reference at www.worldhistory.org/Greek_Colonization (2018). On Roman colonies, AJ Coles, ‘Roman colonies in republic and empire’ Brill Research Perspectives in Ancient History 3.1 (2020) pp1-119: brill.com/journals/rpah/article-p1_1.xml.↩︎
See the discussion in R Bartlett The making of Europe: conquest, colonization and cultural change 950-1350 London 1994.↩︎
Quotation from State Papers Colonial November 9 1709 (www.british-history.ac.uk/cal-state-papers/colonial/america-west-indies/vol24/pp522-540 - part of a considerable series on this issue). The general point and literature is discussed by S Pincus in ‘Rethinking mercantilism: political economy, the British empire and the Atlantic world in the 17th and 18th centuries’ William and Mary Quarterly Vol 69 (2012), pp3-34. Irrespective of Pincus’s point (that there was not a mercantilist consensus), it is clear that there were attempts to enforce subordination.↩︎
H-J Chang Bad Samaritans: the myth of free trade and the secret history of capitalism Bloomsbury 2010. Also M Macnair ‘Free-trade tailism’ Weekly Worker November 22 2018 (weeklyworker.co.uk/worker/1228/free-trade-tailism), ‘Free-trade illusions’, December 13 2018 (weeklyworker.co.uk/worker/1231/free-trade-illusions); ‘Working class trade policy’ December 20 2018 (weeklyworker.co.uk/worker/1232/working-class-trade-policy).↩︎
General survey: see JJ McCusker and RR Menard The economy of British America, 1607-1789 Chapel Hill NC 1991.↩︎
Transportation: AR Ekirch Bound for America: the transportation of British convicts to the colonies 1718-1775 Oxford 1987; for the fact that the practice affected chiefly repeat offenders, see JM Beattie Crime and the courts in England 1660-1800 Oxford 1986 pp460-565.↩︎
MS Bilder The transatlantic constitution Cambridge MA 2004.↩︎
PD Halliday Dismembering the body politic: partisan politics in England’s towns, 1650-1730 Cambridge 1998.↩︎
Excise as anti-constitutional in 1733: R Turner ‘The excise scheme of 1733’ English Historical Review Vol 42 (1927), pp34-57 has more of the rhetoric than more recent literature; Cider excise 1763, outline at www.historyofparliamentonline.org/themes/economy/the-cider-excise-1763-8.↩︎
On enlightenment issues and the Stamp Act 1765, see RD Brown The strength of a people: the idea of an informed citizenry in America, 1650-1870 Chapel Hill NC 1997, chapter 3. Stamp Act 1712: JA Downie Robert Harley and the press: propaganda and public opinion in the age of Swift and Defoe Cambridge 1979, chapter 7.↩︎
I am not aware of literature that makes this point clearly (the literature on the privilege against self-incrimination generally is over-focused on felony procedure at the expense of revenue and regulatory enforcement). The transition from ‘equity Exchequer’ revenue and regulatory enforcement through ‘English information’ procedure (requiring defendant to answer on oath and trial by judge alone) to common law forfeiture and qui tam prosecutions, leading to trial by jury, is visible in the reports of cases on these matters in the Exchequer under James I and (after a gap in the reports) in the 1650s-60s and (after another gap) in the 17-teens to 1730s. The turning point appears to be AG v Mico (1659) Hardres 137 (defendant to a revenue equity information can plead self-incrimination).↩︎
Parliamentary reform: JP Cannon Parliamentary reform 1640-1832 Cambridge 1973, chapter 3. Speech and press: W Bird The revolution in freedoms of press and speech: from Blackstone to the first amendment and Fox's Libel Act Oxford 2020. Militia: JR Western The English militia in the eighteenth century London 1965, chapters 6-9. Judge and jury: J Oldham English common law in the age of Mansfield Chapel Hill NC 2004, chapter 10; on the other side of the coin (critics of jury), see TA Green Verdict according to conscience Chicago 1985, pp288-310.↩︎
G van Cleve, ‘“Somerset's Case” and its antecedents in imperial perspective’ Law and History Review Vol 24 (2006), pp601-45, and id. A slaveholders' union: slavery, politics and the constitution in the early American republic Chicago 2011.↩︎
Cf M Macnair ‘On reducing undue trust in judges’ Kings Law Journal Vol 31 (2020), pp41-58.↩︎
J Wilson ‘The Bank of North America and Pennsylvania politics: 1781-1787’ Pennsylvania Magazine of History and Biography Vol 66 (1942), pp3-28 on the first attempt; Also en.wikipedia.org/wiki/Bank_War provides a useful summary on the second and third attempts.↩︎