Even so, constitutional government as we conceive it was not attained in England. On the contrary, the principal lesson English Whigs derived from struggling with the Stuarts was that Parliament should wield the supreme, unchecked authority that had been wrested from the crown. While constitutional-ism and the rule of law continued to be talked of, the British concluded, in so many words, that Parliament could do whatever it wished, up to and including making changes in the constitution. The king accordingly was “under the law,” but Parliament wasn’t—since law was whatever Parliament decided.
As we have seen, this idea was never accepted by the Americans, and it became the focus of bitter conflict with the English. In the American theory, all political power was subject to a higher law, and this included legislatures as well as monarchs. In constitutional terms, the War of Independence was fought about this issue, and the political arrangements arrived at in the aftermath of fighting reflected the identical thesis. “In all free states,” Sam Adams put it, “the constitution is fixed.” Hence the method of establishing and tightly controlling power through conventions, the written Constitution, federalism, the doctrine of “enumerated powers,” and other techniques for limiting all authority whatsoever.
Why the Americans arrived at these particular notions, as opposed to the purely common law approach, is an intriguing question, though one omitted in the usual treatment. Part of it no doubt is the “freezing” effect of colonial living, which tends to keep political (and other) thought close to the baseline at the era of departure. Also important was the reliance of the settlers on written documents: colonial charters, the New England compacts, the constitutions and bills of rights adopted in the revolutionary era. While certainly not immune to change, as we well know, a document defining government powers is less susceptible to slippage than an evolving scheme of precedents and customs.
Undergirding this reliance on written agreements, also, was the habit of consulting Scripture. And while this too is open to variant readings, the Scriptural-theological element was a major prop of “fixity” in colonial doctrine. By keeping the original sources of the tradition to the forefront, this axiomatic stress restrained the drift inherent in a purely common law approach, which goes wherever precedent leads it. “Fixity” thus became the distinguishing feature of our founding epoch, and in limited-government terms was as much an advance beyond the British system as that was beyond the absolutism of the French. Rather than affirming the “rule of law” as a sentiment or theory, the Americans made it a definite principle of statecraft, enforced and strengthened by as many devices as they could muster.
Viewed this way, American constitutional doctrine is the product of an immensely long development, unfolding over two millennia of Western thought and practice. It starts with the religious insight that there is a higher law above the state; finds backing for this stricture in the church, and thereafter in the feudal order; deduces from these a system of contractual statecraft, representative bodies, and written guarantees of freedom—all translated to our shores and undergirded by the methods we have examined. Taken as a whole, this history tracks a series of ever-narrowing and more definite limits on, the reach of secular power—of which the American Constitution is (or was) the ultimate expression.
So construed, the measures adopted at our founding were an extension of the medieval outlook—though modified by religious changes, the colonial setting, and years of struggle with the British. Self-professed traditionalists that they were, the framers were more conservative than they knew. They were in a sense the last survivors of the feudal-medieval order, insisting that all earthly power must be subject to some limit. And, like their medieval forebears, they backed this up with pluralist, decentralized arrangements that gave practical content to the doctrine.
If this reading be accepted, a number of important conclusions are in order. One is that the chief political tradition of our culture is, above all else, a tradition of limited government, in the interest of protecting personal freedom. Those who profess this view today accordingly defend a legacy passed down to us, at considerable hazard, through many generations. The oft-stated conflict between traditional values and libertarian practice in our politics is therefore an illusion—a misreading of the record, or an artifact of special pleading. In the Anglo-American context, “big government conservatism” is the oxymoron—whatever its vogue among paternalists in Europe.
Also, it is worth repeating that this tradition is rooted in religious faith, not secular abstraction. The very concepts of the limited state and personal liberty, and the institutions that gave these practical force, grew from the religious vision of the West. Likewise, the specific ideas and political methods of our republic were products of this background—as seen in the theology of the early settlers, the arrangements they derived from this, and the religious customs of the founding era. All this is irrespective of whether Americans have always lived up to their faith, whether religious people have resorted to oppression, and other charges brought (sometimes correctly) in the conventional treatment. The point is rather that the conceptual building blocks and main political features of the free society were derived from these religious sources.
Stanton Evans, The Theme is Freedom: Religion, Politics, and the American Traditions (Washington, DC: Regnery, 1994), 310-313.