The Neo-Medieval Constitution: Part 3

Editor's Note: The series this article is part of was originally submitted as one academic paper. Due to its length we divided it up into several parts which will be posted in installments. Additionally we have not included the original footnotes . We will include the whole original piece with footnotes as an attached document to the last installment of the series for readers who wish to read it in its original form. Read part 1 here and part 2 here, and part 4 here

Part Two: Examples of Constitutions

1. Idealtype: The Medieval English Constitution (Sub Deo et Lege)

It is probably anachronistic to speak of the medieval constitution as a unity, since (as Maistre described) it grew and developed over the centuries. Some of the cases we will cite come from shortly before 1688 and reflect trends that would eventually lead to the modern English constitution. Nevertheless, there are common threads that run throughout it, and we will take those as representative of the overall shape of the English polity of the Middle Ages.

Whether or not Aquinas ever visited England, the medieval English constitution largely fulfilled his ideal of a mixed constitution. This is not an outrageous claim when one reads the early constitutional theorist Sir John Fortescue, whose 1543 treatise Commendation of the Laws of England clearly acknowledges that its political categories from Aquinas. Fortescue calls the constitution a “regal political government” because it combines a monarchy with a recognition that the entire commonwealth must be involved in government: The king “cannot alter the laws, or make new ones, without the express consent of the whole kingdom in Parliament assembled.”

Students of the medieval constitution are sometimes frustrated at how elusive it can be to pin down who exactly was sovereign. Henry de Bracton’s The Laws and Customs of England (c. 1260) is a perfect example of this. In one breath, he can say that “the king has no equal within his realm...nor a fortiori a superior, because he would then be subject to those subjected to him”, and in another can write that “the king has a superior, namely, God...[and] also his curia, namely, the earls and barons, because if he is without bridle, that is, without law, they ought to put the bridle on him...” But this nebulousness is a feature rather than a bug. By leaving it ambiguous who has final authority, the medieval constitution effectively prevented anyone from laying an unqualified claim to it.

What was universally understood was that the king was sub Deo et lege, “under God and the law”. As Bracton put it, “The king must not be under man but under God and under the law, because the law makes the king...there is no rex without a lex.” The maxim sub Deo et lege was picked up three centuries later by the Chief Justice of the Common Pleas, Sir Edward Coke, who officiated over several important cases establishing the limits of government power. Sub Deo et lege’s similarity to the Charter preamble’s recognition of “the supremacy of God and the rule of law” is too strong to ignore. In other words, the medieval constitution shows us what “under God and law” actually means.

All political authority was understood to come from God because it was based in the crown, which was bestowed by God onto the monarch through the Church, which performed the coronation. The anointing that conformed the king to Christ was a quasi-sacramental ritual. At that moment, the king was also mystically united to the whole people, and the body politic became his second body. He now governed in union with his subjects, and, if he lost the support of his subjects, he would effectively lose his crown. The fact that he could not legislate without the representatives of the people in Parliament was an expression of this divinely-ordained requirement.

The crown had, as Montesquieu noted, three powers: Executive, legislative, and judicial. The executive powers were exercised by the king in the form of his individual prerogative powers. The legislative powers were exercised by Parliament acting in the king’s name. The judicial powers were exercised by the king’s courts. Although they all derived from the crown, this did not mean the king, in his person, controlled all of them; quite the opposite.

The king’s courts (the Common Bench and King’s Bench) developed and applied the common law. Common law was consciously intended to be a concrete application of God’s natural laws, as revealed and interpreted through the Christian religion. Because these courts were often a source of justice for the poor in their disputes with the rich, the king was seen as an advocate of the marginalized against the powerful, a status that Hilaire Belloc calls “popular monarchy”. However, the Case of Prohibitions [1607] established that the king himself had no power to create common law, though he was bound by it.

Parliament had the sole authority to legislate; the king could not pass statutes without it. As we have seen, this was recognized by Fortescue as early as 1543 and was upheld by Coke in the Case of Proclamations [1610]. However, Fortescue added that Parliament only legislates when the king summons it, which he can do or not do as he sees fit, though his coronation oath binds him to summon Parliament as often as justice requires it. Furthermore, the king had the authority to withhold royal assent from Parliament’s proposed laws if he deemed them unreasonable, a prerogative he was often willing to exercise. In lieu of a Parliament, he could still use his royal prerogative to govern (as Charles I did for the eleven years of Personal Rule). That being said, the king could not raise taxes--or an army--without Parliamentary legislation, and the longer he would go without summoning them or appeasing their requests, the worse off it would be for him.

Although Parliament could create statutory law, the common courts could strike down Parliamentary legislation if they saw it as “against common right and reason, or repugnant, or impossible to be performed”, as established in Dr. Bonham’s Case [1610]. In that sense, the courts were “above” the legislature, because natural law was above positive law.

Although the king could not create common or statutory law, he was bound to obey both, as well as his own charters. If he violated the law, he was to be “bridled”. If the king did something illegal, he could not personally be arrested, but his officials and those close to him could be. One well-known, albeit probably apocryphal, story tells how William Gascoigne, Chief Justice of England, imprisoned and berated Prince Henry V for his debauchery and disrespect, a testimony to how seriously the rule of law was taken.

While the king could not violate common law, the king had prerogative powers which common law could not touch. This was established in the Five Knights Case, or Darnell’s Case [1627], where the court admitted it was powerless to stop Charles I from extra-judicially imprisoning knights who refused to pay forced loans that the king was imposing. Prerogative powers could not be curbed by common law, but they could be limited by Parliamentary legislation. In response to Darnell’s Case, the Parliament submitted a Petition of Right in 1628, and while the king resisted initially, he recognized his need for their support in the Thirty Years War and reluctantly ratified the document.

So, in short: The executive could not legislate without the legislature; the legislature was subordinate to the judiciary; the judiciary was powerless before the executive, but the executive could be limited by the legislature (if it so assented). Who, then, is sovereign? Arguably the king, but only very precariously.

We might be uncomfortable with the power the king was capable of wielding, and the Civil War that broke out two years after the end of Charles’ Personal Rule might indicate that the constitution as it stood was fundamentally flawed. However, the king’s sovereignty was heavily impeded, giving him every incentive to cooperate with Parliament. It was not a perfect system, and probably was not sustainable, but it offers a kind of ideal. Moreover, the king’s independent executive powers served as a check on both the legislature and the judiciary and kept either from becoming sovereign. In the wake of this system, legislative and judicial sovereignty are exactly what developed.

II. Thesis: The Modern British Constitution (Parliamentary Sovereignty)

The medieval English constitution was broken when certain kings strained too hard against their bridles and strove for an absolute rule.  But the new constitution of 1688 did not correct the problem of royal absolutism by going back to the former system of checks and balances to ensure the rule of law. Instead, it replaced one absolutism with another. The absolute rule of the monarch was replaced with the absolute rule of Parliament.

Nominally, sovereignty resides in the king or queen in Parliament. But, since 1708, the monarch has not withheld royal assent from a bill, regardless of how unjust or irrational that monarch might personally think that it was. The monarch, although supposedly ordained by God to rule, is no check on Parliament.

Nor can the courts be a real check on Parliament. The common law still exists as an independent source of law, but it no longer has the power over legislation that Dr. Bonham’s Case ascribed to it. The situation has reversed: now Parliament can swiftly and effortlessly overrule common law. This is exactly what happened in 2008, when R v Davis upheld the longstanding common law requirement that a defendant has the right to face his or her accusers, forcing three prosecution witnesses to reveal their identities in a murder trial. The Davis ruling proved so widely unpopular that, a breezy 33 days later (not a great deal of time for sober reflection), Parliament passed the Criminal Evidence (Witness Anonymity) Act 2008.

Therefore, neither the divinely-ordained monarch nor the courts applying natural law can put a check on Parliament. In his magisterial work on the British constitution, A.V. Dicey famously said that the “two principles which pervade the law of the constitution” were the rule of law and the sovereignty of Parliament. From Bracton and Coke’s maxim, “law” is retained, but “God” is replaced by the legislature. Parliament now stands in the place of God.

For our purposes, we will identify two major concerns about Parliamentary sovereignty.

One is whether or not Parliamentary sovereignty is possible. While the legislature is supposed to be a check on the executive, a kind of “executive sovereignty” seems to develop all too frequently; witness the futility of most backbencher bills, the fact that Cabinet sets Parliament’s agenda, the phenomenon of whips enforcing party discipline, and so on. Conversely, we have the question of whether the sovereignty of Parliament is sui generis or whether it is a creation of the courts. There are good reasons to suppose that the latter is the case and that the courts create and determine the parameters of Parliamentary sovereignty. Lord Justice Laws, for example, has proposed that there are a class of “constitutional statutes” (such as the Magna Carta) which Parliament cannot overrule by implied repeal. The Supreme Court striking down Boris Johnson’s attempt to prorogue Parliament in order to uphold Parliamentary sovereignty also suggests that the judiciary creates and regulates the parameters of Parliamentary sovereignty, often as a way to prevent executive sovereignty.

But more worrying for our purposes is the fact that no check exists on Parliament should they pass an unjust law. Sir Leslie Stephens notoriously stated that the legislature is "omnipotent in the sense that it can make whatever laws it pleases" and that, "If a legislature decided that all blue-eyed babies should be murdered,” protecting these babies would be illegal. Lord Hoffmann stated that if the text of an unjust law is ambiguous, the courts can interpret it in a more just way, but, in that case, Parliament could easily pass another similar statute with clearer language, and the courts would be powerless to stop it. “Constitutional statutes” like the Human Rights Act 1998 are, at best, a speed bump against unjust legislation.

Stephens thought that the people themselves would be a check on Parliament legislating unjustly. Unfortunately, this only seems to be true where a strong majority feel a sense of moral outrage at an unjust law. Minorities are often left vulnerable to unjust laws, as when Canada’s Electoral Franchise Act 1885 denied Chinese Canadians the right to vote and the Dominions Elections Act 1920 denied the federal franchise to ethnic groups who had already been denied the right to vote by their provinces.

There is a tension in Blackstone’s thought between his belief in natural law and his adherence to Parliamentary sovereignty. He recognized that Parliament’s  statutes are only true laws if they are just, but, if they are unjust, there is no legal remedy. He admitted that “if the parliament will positively enact a thing to be done which is unreasonable, I know of no power that can control it,” since any attempt to do so would be  “to set the judicial power above that of the legislature, which would be subversive of government” (which, as we will see, is exactly what happened in the United States). The only recourse in the case of unjust laws was that individual consciences are not bound to follow them. The tension remains unresolved, and it boiled over in the colonies.

III. Antithesis: The American Constitution (Judicial Sovereignty)

It is well known that, despite their reputation as radicals, the American Revolutionaries were actually laying claim to their traditional rights as Englishmen when they protested being taxed without representation. But there was another critique of the British government at play in the Revolution: a rejection of Parliamentary sovereignty, which the Revolutionaries saw as being just as absolutist as any tyrannical king.

Natural law was a motivating belief for many of the Revolutionaries (as reflected in the oft-quoted opening lines of the Declaration of Independence) and they sought a constitution where the legislature would be thwarted if it tried to pass unjust laws. George Mason, for example, had successfully argued in Robin v Hardaway [1772] that “all acts of legislature apparently contrary to natural right and justice are, in our laws, and must be in the nature of things, considered as void.” Mason went on to write the Virginia Declaration of Rights, which was the basis of the U.S. Bill of Rights. In return, the increasingly positivist British derided the Americans for pretending that they lived “in an original state of true Indian innocence” where the laws of nature reigned. Natural law, for them, could not be a limit on Parliament’s omnipotence to legislate about taxation.

To try to improve their situation, the Colonists initially tried to revive the medieval arrangement where the king was a check on Parliament. Figures like John Adams and Alexander Hamilton, taking a Tory line about how unfortunate it was that the king’s powers had diminished, argued that the colonies were under His Majesty, not Parliament, and appealed to the king to exercise his stagnant royal veto power to overrule the unjust statutes afflicting the American colonies. In this sense, a strong strain of the American Revolution was an ultra-conservative throwback to the Middle Ages, and when the Constitution was written, it was not a simple translation of the British constitutional model, as is sometimes implied, but was intended to more closely copy the medieval arrangement, whereby unjust laws could be abolished.

Like the U.K., the U.S. has a lower and an upper house to legislate, and it has a monarch in the person of the president. However, this monarch effectively has the power to deny royal assent: The presidential veto allows him to strike down laws he deems imprudent. However, to prevent sovereignty from clustering too much around the elected monarch, the Congress can overrule that veto if a two-thirds majority of both the House and the Senate vote so to do. That being said, Congress had only overridden the presidential veto 7% of the time in American history. In practice, sovereignty is hardly clustering around the legislature, either, and if Congress is able to override the presidential veto, it is only because a substantial majority of its democratically elected members who are accountable to their voters agree on it, which accords with the natural law understanding of prescriptive constitutionalism in which the entire population governs itself. Moreover, after amendments, the Constitution enshrined a Bill of Rights to which statutes had to conform. Marbury v Madison [1803] established that the Supreme Court can strike down legislation and some executive actions (including executive orders), for not conforming to the Constitution, a reinstatement of sorts of the principles of Dr. Bonham’s Case. Some have claimed that Marbury v Madison [1803] did not reflect the intention of the Founding Fathers, or that the usual interpretation of it is mistaken; to this, we simply refer back to Maistre.

So far, it seems like the American system has effectively reinstated the medieval English constitution. But there is an apparently small difference that makes a great impact.

In the medieval system, the king both appointed and removed judges at his pleasure, and would replace any judges who, in Belloc’s words, “used [their] power in opposition to the king,” or, we could say, used them politically. In contrast, the Constitution states that justices of the Supreme Court can only be impeached for failing to observe “good behavior” (Article 3, Section 1) and no other mechanism for removing them exists. This may seem like an improvement over a monarch’s power to dismiss at will, but it led to an unintended side effect.

“Brutus”, one of the anonymous anti-Federalist authors, warned that the Supreme Court would become sovereign under the U.S. Constitution, since  “[t]he legislature must be controlled by the constitution,” and the justices “will determine, according to what appears to them, the reason and spirit of the constitution.” Should they make a mistake, “there is no power provided in the constitution” to correct this. “There is no authority that can remove them from office for any errors or want of capacity, or lower their salaries, and in many cases their power is superior to that of the legislature.” Alexander Hamilton did not share these concerns, infamously predicting that the judiciary would be “the least dangerous [branch] to the political rights of the Constitution” and “beyond comparison the weakest of the three departments of power.” History has vindicated Brutus and shamed Hamilton on this point.

The Supreme Court can effectively overrule any law from either the president or the legislature based on moral evaluation of the justices. Nominally, they are bound by the text of the Constitution, but, texts being subject to different interpretations, justices are capable of wringing nearly any reading they want out of its language. A clear example is the conceptual legerdemain of turning “due process” into “substantive due process” and thereby discovering a right to abortion in the Constitution. Even if a justice could be removed, their rulings would still stand and set a stare decisis precedent.

Unlike in the medieval system, where the courts had supremacy with regard to legislation but were curbed by the executive, SCOTUS’ moral judgments are unchecked by either of the other two branches, making it effectively supreme and enabling it to make sweeping changes to American society beyond what even the most self-important medieval king could ever dream of. The only way to affect the court is to tweak it every few years when a justice dies or retires, and because SCOTUS’ powers are so sweeping, citizens often vote in elections with an eye towards Supreme Court appointments, since, contra Hamilton, who a president appoints to the bench is likely to be far more important in the long run than any policy he or she happens to adopt. Maistre had warned against hubristic attempts to consciously create constitutions, and singled out Thomas Paine’s (to Maistre, laughable) desire for a “constitution” one could carry in one’s pocket. The unintended constitutional arrangement that came out of the American founding seems to vindicate his jeremiads. Maistre’s warning should always be with us: Any conscious attempt to return to the exact structure of the medieval constitution is likely doomed to fail. With that reminder, we turn to Canada.