A Battle for the Rule of Law

April 19 marks the 250th anniversary of the battles of Lexington and Concord—the “shot heard ‘round the world.” It is hard for most Americans today to appreciate that anniversary—and not just because broad historical illiteracy means that most folks probably have no idea what, where, or when the battles were fought. Our disconnect also stems in part from a gulf between our own and the patriots’ attitudes toward the laws and constitution.  

By 1775, the conflict between American colonists and Great Britain was in its tenth year. Those years, however, are rather fuzzy in the political imagination of most Americans today. What prompted a resistance to tax policy so intense that it led, 250 years ago, to taking up the sword? If not for independence, what were these patriots fighting for? I would wager that many people would have difficulty answering that question.

The Declaration’s high-flown philosophical refrain—so easy for people to pick up and repurpose outside its context—wouldn’t be written for over a year. If pressed, one might be able to conjure up the colonial mantra, “no taxation without representation.” But by itself, that might give the false impression that the American Revolution was driven by penny-pinchers who objected to a tax hike, or that the colonists just wanted to send some representatives to Parliament. That mantra was rooted in a deeper commitment. If one must sum up the patriot cause with a pithy phrase, I think a much stronger case can be made that they were fighting for the rule of law in the early stages of resistance and revolution.

Historians like Jack P. Greene and John Phillip Reid have demonstrated that the colonial response to the Stamp Act and succeeding developments was driven largely by “constitutional anxieties.” Of course, the notion of a constitution at the time was unwritten and based on custom, convention, and regularity in the laws, but that in no way diminished its binding authority in the colonists' minds.

The conflict began with a dispute over where the power to tax was lodged in the imperial constitutional structure, gradually revealing deep divisions about political authority and the nature of the constitution.

The British based their case on the emerging constitutional vision of “parliamentary command,” in which sovereign authority was authorized by a certain kind of representative assent (through which the colonists were “virtually” represented), but the sovereign was then free to make and remake the law to direct the empire in whatever ways it deemed best effectively. The 1766 Declaratory Act raised permanently the stakes of the Stamp Act crisis by making precisely this claim: that Parliament could legislate for the colonies “in all cases whatsoever.” The 1774 Quebec Act, which loomed large in the colonists’ imagination, was likewise a signal that Parliament believed it possessed the rightful power to create colonial governments that lacked central elements of the British constitutional system as the colonists had experienced it—the common law and the representative assembly.

On the other hand, the colonists had a very different notion of the British Constitution—one in which the rule of established law was primary. The question of taxation and representation was tied up with questions of customary right, and the institutions and agreements that had served to contain political authority within certain bounds. For nearly their entire existence, they had colonial assemblies that held the legislative authority (including taxing authority) for their respective colonies. That constitutional arrangement could not be changed willy-nilly by the “sovereign command” of parliament.

Parliament was concerned with effectively advancing the interest of the empire as a whole, which seemed to require uninhibited central direction. The colonists were concerned by the specter of political power breaking out of the established, agreed-upon structure of constitutional authority that they had always lived under. Though they would also make arguments based on general principles, ideology, or philosophy, their core complaints—including taxation, meddling in colonial governance, and the rights of the accused—never strayed far from these constitutional questions.

In 1774, the “Fairfax Resolves” had singled out Parliament’s attempt at “creating new and dangerous Jurisdictions here.” Thomas Jefferson’s "Summary View of the Rights of British America" decried “acts of power… unacknowledged by our laws.” And John Adams, in a particularly telling line from his Novanglus Essays, captured the attachment to the rule of law for its own sake:

America will never allow that parliament has any authority to alter their constitution at all. She is wholly penetrated with a sense of the necessity of resisting it at all hazards. And she would resist it if the constitution of the Massachusetts has been altered as much for the better as it is for the worse. The question we insist on most is, not whether the alteration is for the better or not, but whether parliament has any right to make any alteration at all. And it is the universal sense of America that it has none.

As the imperial constitution was thrown into doubt, and deep matters of ultimate authority were brought to bear, the colonists saw it as calling into question the ties that bound them to the mother country. For them, their political association with Great Britain was largely defined by the rule of law, not by submission to an absolute sovereign: they lived together under particular, settled constitutional rules. Loyalty to the king was the focal point of that relationship, but to the king as defender and custodian of the constitution, not as an absolute, sovereign “king-in-parliament.” As it became more and more clear over a decade that no consensus was to be had on the nature of the constitution, and as the king refused his obligation to safeguard the rule of law, the political association itself became a more open question.

“The rule of law” still has a positive connotation for Americans today, but it would be hard to imagine anyone reaching for the revolutionary musket over “procedural” questions like what institution possesses the authority to tax. One need not search beyond the headlines to see just how far Americans are from such an attitude.

Article I of the Constitution very specifically assigns “all legislative power herein granted,” including the power “To lay and collect Taxes, Duties, Imposts and Excises” to the “Congress of the United States.” It is, to state the obvious, rooted firmly in the very principle of British law that had sparked the colonists' ire—that a tax may be levied only by a representative assembly elected by the people being taxed.

On April 2, however, President Trump declared a national emergency surrounding America’s economic “competitive edge,” using that emergency specifically to “lay and collect Taxes and Duties.” There was no truly emergent situation, of course. Evidence of the emergency consisted of statistics that Trump regularly used for months on the campaign trail about American manufacturing—evidence that pointed to economic conditions that have been gradually emerging and endlessly debated for decades. It was nothing new.

Yet the declaration of emergency triggered presidential power that Congress had willingly given up in the International Emergency Economic Powers Act of 1977 (though just how broad the authority the law actually contemplated is a debated question).

With a handful of exceptions, senators, congressmen, and pundits have opined—for or against—on the substance of the tariff policy, but with relatively little concern about where the power to tax is properly lodged. To us, outrage over such procedural questions tends only to be generated if we see it as a possible avenue for rolling back policies we dislike. I, at least, have yet to hear anyone say, “I support Trump’s tariffs, but I think they are unconstitutional.” Anger at the legal question is secondary to one’s opinion of the policy.

Even right-leaning institutions that have long prided themselves on being defenders of our constitutional system have mostly been silent on the legal and institutional issue. Like the defenders of Parliamentary power, they seem now to believe that, to direct a grand empire effectively, we need “bold leadership” from the metropole. Meanwhile, progressive critics of the president seem unwilling to question whether their longstanding push for concentrated presidential power, which stands against the constitution’s framework, is at all responsible for one man being able to turn global commerce on its head.

After all, this state of affairs is not unique to President Trump. Though most citizens may not realize it, we live under 49 active “national emergencies,” several of which have lasted for decades, each of which has handed off a piece of legislative authority from Congress to the presidency. And aside from these so-called “emergencies,” Congress has delegated countless regulatory powers to the presidency or to executive branch agencies, which have also absorbed many responsibilities that the Constitution left to the states or the people. The point is not to litigate any of these specific instances, but merely to point out that, for the most part, people don’t much care. As long as we get the policies we prefer, the Constitution must be working.

No wonder it is hard to wrap our minds around the arguments of the American colonists in the 1760s and 70s, for whom the laws and constitution were at the center of their political allegiance. As we have lost our constitutional imagination, and our instinctive appreciation of the value of limits, we have come to demand more from government, to lose our trust in it as it inevitably fails to meet our expectations, and—most importantly—to lose the sense that we can govern ourselves without central direction from the imperial metropole.

When reading early American political discourse, one often comes across a phrase that is little used today: references to people who are “jealous” of their liberty. The colonists realized that the parliamentary claim of absolute power was not just dangerous because of the substantive outcome (a relatively modest tax), but because it took something that belonged to them—their right to live as free men, governing themselves as individuals, civil societies, and local and colonial governments. That was something to guard jealously. Washington! Thou shouldst be living at this hour.

John Grove is the editor-in-chief of Law & Liberty.