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American Restoration: Edmund Burke and the American Constitution

In mid-July 230 years ago, the people of England received a startling piece of news. They learned that on the previous day, July 14, 1789, a mob of angry Frenchmen had stormed the Bastille prison, thus toppling one of the prominent symbols of the Old Regime. It was now clear to all: the growing unrest in France during the previous months had finally reached a boiling point. It had become a revolution.

The first reaction by the majority of the British elite was to view this as great news. This attitude was shared by notorious radicals like Thomas Paine as well as by establishment figures like the Prime Minister William Pitt the Younger. To them, it seemed that the French had finally woken up and cast off their tired, decrepit, and mildly oppressive regime. The road was now open for progress, and surely French politics would soon become quite similar to Britain’s, only with better food.

About three weeks later, letters written by Thomas Jefferson, then the American ambassador to France, arrived from across the Atlantic and broke the same news to the United States, eliciting broadly similar reactions. As he sat down in Paris to have breakfast—served by one of his black slaves brought over from Virginia—Jefferson, with his supreme self-delusion, must have felt satisfied that the sun of liberty was now shining on both shores  of the Atlantic. Apparently he even hoped that the developments in France might encourage Americans to amend the constitution they had recently adopted while he was away in Paris, and which to him was too similar to the tired, decrepit, and mildly oppressive English one. He had in mind various brilliant amendments, like his proposal to James Madison that “Every constitution then, and every law, naturally expires at the end of 19 years.” This idea, he was sure, “will be an instance the more of our taking reason for our guide, instead of English precedent, the habit of which fetters us with all the political heresies of a nation equally remarkable for its early excitement from some errors, and long slumbering under others.”

But there was one figure who received the news of the revolution with disgust and alarm. Edmund Burke, for almost three decades one of the most prominent voices for liberty on both sides of the Atlantic, came very early on to regard the revolution in France not as the dawn of a new age of freedom, but as the very opposite, the false lights of a hellish pit opening. It was to him a mortal danger to the liberties that a centuries-old constitutional tradition had successfully established in Britain and in the United States. Most of all, as Burke explained in his Reflections on the Revolution in France (1790), he was worried that English radicals—like Richard Price, Joseph Priestley, and Thomas Paine—were disseminating the claim that anything worthwhile in the British constitution was actually founded on social contract theories like those of Locke and Hobbes. These ideas, apparently refined by the likes of Voltaire and Rousseau into the republican constitution of France, were said to represent the “new conquering empire of light and reason.” According to this radical interpretation, the new American Constitution was also founded on these rationalist ideas, and it was now high time for Britain to also conform its tired, decrepit, and mildly oppressive constitution to the enlightened and improved principles emanating from France.

Burke spent the remaining years of his life (he died in 1797) forcefully arguing against this view. He argued tirelessly that the English constitution rested on ideas completely distinct from the “social contract” and the universal “rights of man.” Moreover, when he addressed the new Constitution that the Americans had just adopted, Burke insisted that it too followed the ideas and traditions of English constitutionalism.

The men who actually wrote the American Constitution in the main agreed with Burke. His account of the U.S. Constitution and its relationship to the English one would have been easily recognized by Britons and Americans at the time and for many more generations. In the United States it would have been self-evident to President Washington, Secretary of the Treasury Hamilton, and Associate Justice Story, just as it would have been 140 years later to President, Secretary of War, and Chief Justice Taft. Similarly, in the UK, prime ministers such as Canning, Wellington, and Disraeli held the very same views, as of course did Winston Churchill.

Today, however, most Americans find these views strangely unfamiliar. Even graduates of prestigious law schools are for the most part puzzled. They seem oblivious to the fact that it was once widely accepted, on both sides of the Atlantic, that the American Constitution was a version of the British one. These Americans try to explain that people like Hamilton, Disraeli, and Taft, who explicitly argued for this view of the constitution, were either misinformed or else had some ulterior motives for maintaining the dependence of the U.S. Constitution on English traditions. Granted, all agree that there are some residual cosmetic similarities and procedural borrowings from Britain. But essentially, so I am repeatedly and categorically told, the U.S. Constitution is in the main the result of the Enlightenment ideas of Locke and Hobbes about natural rights.

Burke’s View of the American Constitution

As for Burke, I find it widely claimed that he never really expressed an opinion about the U.S. Constitution. In fact, although Burke certainly did not say or write very much on American affairs after the end of the War of American Independence in 1783, he did say and write enough both before and after this date to make the following points clear:

(1) He insisted that his positions about Americans and their government were consistent throughout his career, including after the passing of the new Constitution.

(2) He stressed that like all good constitutions, the American one reflected national character and history—certainly not any abstract “rights of man.”

(3) He claimed that in fact the U.S. Constitution of 1787 was a version of the English constitution, which Americans “as well adapted to their circumstances as they could.”

Thus, Burke’s understanding is absolutely opposed to the now fashionable claims that the U.S. Constitution is based on abstract Lockean principles, epitomized by the Declaration of Independence. Burke never explicitly referred to the Declaration when discussing American constitutional ideas (if anything, in a speech from 1791 he seems to strongly censure its language), and he clearly regards 1787 as completing a restoration of the Anglo-American constitutional tradition in the United States.

This understanding of the Constitution is not only important as a matter of historical study. It is also the only interpretation that can effectively oppose mounting attempts to revise the Constitution in accordance with speculative liberal theories. For a Lockean interpretation, based on a priori natural rights, necessarily leads one to regard the Constitution as a mere tool for delivering these rights. It is a kind of liberal originalism that slowly chips away at the intrinsic authority of the Constitution in favor of the abstract principles that it is alleged to express. Such an interpretation inevitably opens the door for claims that those parts of the Constitution colliding with abstract Lockean principles should be done away with. In fact, this is exactly what is being proposed today, from Lockeans on the left and right. On the left, four Democratic senators have introduced a constitutional amendment to abolish the Electoral College. On the right, prominent figures publish pieces almost daily asserting that the goal of the Constitution is to create a framework for liberal ideals to flourish.

Burke’s View of America’s Relationship to Britain

In one of his very first speeches in parliament, the “Speech on Declaratory Resolutions” delivered on February 3, 1766, and dealing with the right of the British government to tax the American colonists, Burke presented some of the principal ideas about the English in America, ideas he would uphold throughout his long career.

Among many other points he made in that speech, Burke argued that America’s distance from Britain (taking months for information to travel back and forth) meant that, practically, the colonies could never fully “coalesce” and become an integral part of Britain’s working constitution: “We have nothing therefore for it, but to let them carry across the ocean into the woods and desarts [sic] of America the images of the British constitution; the Penates [images of Roman family gods] of an Englishman, to be his Comfort in his Exile, and to be the pledges of his fidelity and to give him an interest in his Dependency on this Country.”

In essence, Burke was arguing that geographic realities meant America could not become an integral part of British government, and thus the English colonists would have for the most part to govern themselves, according to the “images of the British constitution,” which they had carried with them “across the ocean.” A decade before the war of independence, Burke believed that the best Britain could do was to restrain her power, and let Americans by and large govern themselves with a version of the English constitution, hoping that by such a mode of government the colonists would develop a voluntary dependence and loyalty to the mother country. (This was the model which, after the American experience, Britain eventually adopted in governing Canada, Australia, and New-Zealand, allowing them indeed to voluntarily adhere to their mother country, long after having become independent.)

Eight years later, in June 1774, Burke delivered in Parliament a prominent speech on the Canada Bill, which was intended to regulate the borders of that province (recently won from France) with the American colonies. A mere two years before U.S. independence, Burke focused in this speech on the constitutional aspects of the proposed border line, stressing that every care must be taken to ensure that none of the English in America live under the rule of the “despotic” laws of France, as were still used at that time in British-ruled Quebec. He clarified that

[t]he reason why I feel so anxious is, that the line proposed is not a line of geographical distinction merely; it is not a line between New York and some other English settlement; it is not a question whether you shall receive English law and English government upon the side of New York, or whether you shall receive a more advantageous government upon the side of Connecticut; or whether you are restrained upon the side of New Jersey. In all these you still find English laws, English customs, English juries, and English assemblies, wherever you go. But this is a line which is to separate a man from the right of an Englishman.

He stressed that, “The government of France is good—all government is good—but, compared with the English government, that of France is slavery.”

Burke pointed out that, naturally, constitutional arrangements in the colonies differ somewhat from the mother country, due to local circumstances. Yet, he asserted, laws from various origins can be “grafted” upon an existing constitutional framework, with the decisive element for the effect of this grafting being the basis of that constitution. So that, “with a French basis, there is not one good thing that you can introduce. With an English basis, there is not one bad thing that you can introduce.”

The Debate over the French Revolution

By early 1791, two years after the fall of the Bastille, the rattle and hum of the French revolution was well under way. But with its worst excesses, like the beheading of the king and queen and the reign of terror, still in the future, Burke was as yet unsuccessful in swaying the bulk of British public opinion against it. The British government, headed by the younger Pitt was increasingly suspicious, but cautiously avoided controversy and did not wish to provoke the new revolutionary government in France. The majority in Parliament were still either favorable to the revolution or only mildly critical of it, with barely a handful sharing the ferocity of Burke’s opposition. Meanwhile, there was a flurry of pamphlets discussing events in France, with the vast majority favoring the revolution, and many explicitly castigating Burke’s Reflections.

Prominent among these was Thomas Paine’s Rights of Man, which appeared in March 1791. The book, which Paine dedicated to George Washington, had been written explicitly to rebut Burke’s Reflections (a second part, published in February 1792 would be directed against Burke’s Appeal). In his book, Paine had a chapter on constitutions, where he commended the new American one as a social contract arising from a blank-slate state of nature, built on reason and natural rights: “the case and circumstances of America present themselves as in the beginning of a world.” He contrasted this with his view of Britain, sneering that “no such thing as a constitution exists in England” but rather only “mouldy parchments” from 1688 which cannot bind later generations, and he furthermore exclaimed that “the bill of rights is more properly a bill of wrongs, and of insult.” The name of Paine’s book thus became an easy reference for rationalist Lockean theories for those who supported the French revolution in English-speaking countries. About a month after it appeared in London, a copy of Paine’s book was received and read by Jefferson, now serving as secretary of state in George Washington’s administration. Jefferson approved of Paine’s support for the French revolution and his reading of the American Constitution as reflecting the same ideals. He sent a note to the Philadelphia publisher of the American edition expressing his pleasure “that something is at length to be publicly said against the political heresies which have sprung up among us.” The “heresies” he mentioned referred to the ideas of John Adams, Alexander Hamilton, and others whom he dubbed “monarchists” because of their interpretation of the U.S. Constitution as a version of the English one. The publisher added most of the note as a “prefix” to the American edition of Rights of Man. Jefferson, who possibly did not intend it for publication, and certainly did not foresee the backlash his comments would produce, felt compelled to write letters of justification to Washington and Adams. In his Letter to George Washington (May 8, 1791), Jefferson argued that

Paine’s answer to Burke’s pamphlet begins to produce some squibs in our public papers. In Fenno’s paper [The Gazette of the United States] they are Burkites, in the others Painites. One of Fenno’s was evidently from the author of the discourses on Davila [this was actually John Adams]. I am afraid the indiscretion of a printer has committed me with my friend Mr. Adams, for whom, as one of the most honest and disinterested men alive, I have a cordial esteem, increased by long habits of concurrence in opinion in the days of his republicanism: and even since his apostacy to hereditary monarchy and nobility, tho’ we differ, we differ as friends should do.

Obviously, at this point the Burke-Paine constitutional debate in Britain was regarded by Americans as directly relevant to their own constitution.

Thus the perennial debate about the American constitution was already perfectly formed in 1791: Paine and Jefferson asserted that the Constitution resulted from rationalist ideals about “rights of man”; Burke, with Hamilton and Adams, insisted that the American Constitution was not written on a blank slate. Created by those whom Burke still sometimes referred to as “the English in America,” the U.S. Constitution was, in his view, an integral branch of an Anglo-American constitutional tradition.

Not incidentally, Burke’s ideas on the U.S. Constitution came to the fore explicitly during the spring and summer of 1791, the time of his final and public break with the pro-revolutionary, radical “New Whigs.” Essential to Burke’s argument was that the American Constitution was a branch of the English constitutional tradition, and that, as such, both were totally alien to revolutionary French ideals.

For some time, Burke had been looking for the right occasion to raise these issues explicitly in Parliament, in order to force an open showdown between the opposing views, which most MPs were still attempting to avoid. He found it in the debate about a Bill for Organizing the Government of Quebec (May 6–8, 1791), during which came several of Burke’s most important, if often overlooked, pronunciations on this issue.

From the beginning of the debate, Burke swiftly directed it away from  procedural issues and towards a discussion of constitutional principles. He argued that such a discussion was necessary because, “A body of rights, commonly called the rights of man, imported from a neighboring country, had been lately set up by some persons in this, as paramount to all other rights. A principal article in this new code was ‘That all men are by nature free, are equal in respect of rights, and continue so in society.’” It is not superfluous to note the similarity of Burke’s formulation of these dangerous principles that he rejected, not only to the recent language of the French Declaration of the Rights of Man and of the Citizen, but also to the American Declaration of Independence.

Having rejected “the doctrine of the rights of man, which was never preached any where without mischief,” Burke proposed that Parliament give to the people of Canada the “best government that their local situation and their connexion [sic] with this country would admit.” This would be best served, he believed, by looking at other relevant constitutions, and “The great examples to be considered, were the constitutions of America, of France, and of Great Britain. To that of America great attention, no doubt, was due, because it was of importance that the people of Canada should have nothing to envy in the constitution of a country so near to their own. Situation and circumstances were first to be considered.”

It is at this point that Burke presented his view of the new U.S. constitution:

The people of America had . . . formed a constitution as well adapted to their circumstances as they could. But, compared with the French, they had a certain quantity of phlegm, of old English good nature, that fitted them better for a republican government. They had also a republican education; their former internal government was republican, and the principles and vices of it were restrained by the beneficence of an over-ruling monarchy in this country. The formation of their constitution was preceded by a long war, in the course of which, by military discipline, they had learned order, submission to command, and a regard for great men. They had learned what—if it was allowable in so enlightened an age as the present to allude to antiquity—a king of Sparta had said was the great wisdom to be learned in his country; to command and to obey. They were trained to government by war, not by plots, murders, and assassinations. In the next place, they had not the materials of monarchy or aristocracy among them. They did not, however, set up the absurdity, that the nation should govern the nation; that prince prettyman should govern prince prettyman: but formed their government, as nearly as they could, according to the model of the British constitution.

Later in this speech, he even went further, explicitly referring to the U.S. constitution, as no less than an “imitation of the British constitution.” In short, Burke not only regarded the new American constitution quite favorably, but also as formed “according to the model of the British constitution,” although “adapted to their circumstances” as well as possible. How could a republican constitution in America be modeled after—indeed be an “imitation” of—the British monarchy? First and foremost, to Burke and most contemporaries, the English government was not simply a monarchy. Rather it had developed into a mixed constitution, combining elements of monarchy, aristocracy and democracy, counterbalancing each other’s defects. Indeed, he believed that the English constitution had grafted the virtues of republics upon the form of a monarchy.

As noted above,  Burke stressed that he was not a principled enemy to republics. He did believe, however, that republican governments were, in effect, constitutionally unstable, if “they had not the materials of monarchy or aristocracy among them.” This inherent republican instability created a tilting towards democracy, that had to be counterbalanced, less it run wild towards untested speculative theories, and government becomes one of “plots, murders, and assassinations,” like what had happened in France. Thus, Burke implied that even a republican constitution “adapted” in structure from the English one, would still suffer from the unruly tendencies inherent to republican governments.

Regarding America in particular, Burke remarked that on top of the English framework of their constitution, the Americans also possessed three peculiar features, which at least to some extent counterbalanced problematic republican proclivities. All three of these features were part of what we would describe as their national character.

The first feature was the manners and habits of the Americans. They were, as Burke said, “of old English good nature” or “phlegmatic.” The second feature was one that the English in America acquired in their new continent, but it too was connected to England. This was that they “had also a republican education” of a very special kind. In other words, during the first 150 years of their existence, while their self-rule was being regulated by the British monarchy, the colonies had been imprinted with a “restrained” republicanism.

The third feature was the newest one. During their long war of independence, the former colonists “had learned order, submission to command, and a regard for great men” so that they “were trained to government.” By this training, Americans restrained their individualist tendencies, and became used to voluntarily following the leadership of “great men.”

For Burke, these three peculiar features of American national character, blending English heritage with local circumstances, were crucial in enabling the United States to become a viable republic. He therefore stressed that the colonists had fought their war of independence “not to acquire absolute speculative liberty, but to keep what they had under the English constitution.” And in that, they had succeeded. The resulting American Constitution he thus regarded as belonging, together with the English one from which it had grown, to one type of constitution.

This Anglo-American type he opposed to another type, the revolutionary “French constitution—a constitution founded on principles diametrically opposite to ours, that could not assimilate with it in a single point; as different from it as wisdom from folly, as vice from virtue, as the most opposite extremes in nature—a constitution founded on what was called the rights of man.” Such a constitution, Burke argued, had brought destruction everywhere it had been introduced, from the French West Indian colonies to France itself.

Only three months after the Quebec debates, Burke’s Appeal from the New to the Old Whigs, appeared in August 1791. This was the last occasion on which Burke substantively addressed the American government. In this work, Burke again reiterated his opinion about the American war being a defensive effort by the colonists, to protect their traditional English rights—in effect, a restoration. He stressed that “on a supposition that the Americans had rebelled merely in order to enlarge their liberty, Mr. Burke would have thought very differently of the American cause.” But in his “large” conversations with Americans including Franklin, “and his enquiries extensive and diligent,” he could only find that America wanted “a security to its ancient condition.”

Using the literary device of referring to himself in the third person, Burke added that

he always firmly believed that they were purely on the defensive in that rebellion. He considered the Americans as standing at that time, and in that controversy, in the same relation to England as England had to King James the Second in 1688. He believed that they had taken up arms from one motive only; that is our attempting to tax them without their consent; to tax them for the purposes of maintaining civil and military establishments. If this attempt of ours could have been practically established, he thought with them, that their assemblies would become totally useless; that under the system of policy which was then pursued, the Americans could have no sort of security for their laws or liberties, or for any part of them; and, that the very circumstance of our freedom would have augmented the weight of their slavery.

When we recall that the bulk of the Appeal is devoted to presenting the Old Whig principles—according to which 1688 was not a Lockean radical new order, but rather a defensive restoration of the traditional English constitution after James II’s attempts to destroy it—we immediately see the parallel Burke was drawing between two successful restorations of the traditional constitutional order, the English Glorious Revolution and the American Revolution. Explicitly positioning the American war of independence, as their own version of 1688, in which “purely on the defensive” they rebelled against an English government set on destroying their constitutional traditions, the 1787 American constitution then became the completion of this process, restoring to the Americans the security of their traditional English laws and liberties.

Tradition or Tool?

In conclusion, Burke believed (1) that the Americans had an established national character and political culture, both of which were based to a great extent on English traditions; (2) that the Americans in 1776 rebelled in an attempt to defend and restore these traditions, like the English in the Glorious Revolution of 1688; and (3) that the 1787 American Constitution was the completion of this restoration, a government the Americans designed “as nearly as they could, according to the model of the British constitution.” For Burke, then, Jefferson’s grumblings about Americans following “English precedent,” which tied them to the political ideas of the mother country were both true and desirable.

As I noted above, the Burkean view of the American Constitution, broadly speaking , was dominant on both sides of the Atlantic until at least the 1930s, and it remained influential for most of the twentieth century. In the last few decades, however, this interpretation of the Constitution has virtually disappeared from view. Instead, the radical notions of Paine and Jefferson, in which the Constitution is said to proceed mainly from  abstract, Lockean “rights of man,” are now embraced even by most of those who describe themselves as conservatives.

This radical interpretation has repercussions that reach far beyond the realm of historical inquiry. For, if the Lockean account is accepted as valid, then the U.S. Constitution loses any intrinsic traditional value and becomes a mere tool for advancing liberal principles. As such a tool, it cannot supply any principled justification for the validity of things like the Electoral College, the Second Amendment, or even the federal system.

The adoption of new, radical principles of government was exactly what Burke warned about in his writings, as he put it in a biblically inspired image: “He was an old man, and seeing what was attempted to be introduced instead of the ancient temple of our constitution, could weep over the foundation of the new” (Ezra 3:12). It is for this very reason, that it is imperative upon us to reclaim and restore the true account of the Constitution as following in the Anglo-American tradition. Otherwise, as Burke assures us, it will succumb, sooner or later, to the radical theories of the abstract “rights of man.”

This article is an American Affairs online exclusive, published February 17, 2020.

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