Smith explains Paine’s constitutional theory and why he believed that Britain had no constitution.

George H. Smith was formerly Senior Research Fellow for the Institute for Humane Studies, a lecturer on American History for Cato Summer Seminars, and Executive Editor of Knowledge Products. Smith’s fourth and most recent book, The System of Liberty, was published by Cambridge University Press in 2013.

Thomas Paine’s Common Sense, published in January 1776, converted thousands of Americans to the cause of independence and thereby proved one of the most influential pamphlets ever written. Paine was a relative newcomer to the colonies, having arrived in Philadelphia on 30 November 1774. Perhaps because he had lived in England for thirty‐​seven years, Paine did not share the veneration expressed by many Americans for the English constitution. If England enjoyed greater freedom than most other countries, this was “wholly owing to the constitution of the people, and not to the constitution of the government.” The widely acclaimed separation of powers in the English government was a sham, according to Paine. The monarch and the peers (in the House of Lords), “by being hereditary, are independent of the people; wherefore in a constitutional sense they contribute nothing towards the freedom of the state.” Hence: “To say that the constitution of England is a union of three powers reciprocally checking each other, is farcical; either the words have no meaning, or they are flat contradictions.”

Although, in 1776, Paine severely criticized the English constitution, he did not deny its existence altogether. But a transformation had occurred by the time Paine wrote Rights of Man (Part One, 1791; Part Two, 1792), for in that book he flatly denied that England had a constitution. Greatly annoyed by Edmund Burke’s vaunting of the English constitution, Paine threw down the gauntlet.

Can then Mr. Burke produce the English Constitution? If he cannot, we may fairly conclude, that though it has been so much talked about, no such thing as a constitution exists, or ever did exist, and consequently that the people have yet a constitution to form.

This claim appears to have been fairly common among Americans by the time Paine wrote Rights of Man. For example, in Lectures on Law (1790–92) the legal philosopher James Wilson (who later served on the Supreme Court) declared that “no such thing as a constitution, properly so‐​called, is known in Great Britain. What is known, in that kingdom, under that name, instead of being the controller and the guide, is the creature and the dependent of the legislative power.”

As traditionally conceived, the English “constitution” did not refer to a single written document. Rather, as the English philosopher William Paley wrote in his influential book The Principles of Moral and Political Philosophy (1785), the English constitution “is made up of acts of parliament, of decisions of courts of law, and of immemorial usages.” The English constitution, according to Paley, did not possess “a kind of transcendent authority…as if it were founded in some higher original than that which gives force and obligation to the ordinary laws and statutes of the realm.” In the final analysis, “the terms constitutional and unconstitutional mean legal and illegal.”

This interpretation conflicted with the beliefs of many Americans prior to the Revolution. In 1773, John Adams, referring to the English constitution, complained of the widespread failure to distinguish between acts of parliament that are legal and those that are constitutional. An act of parliament is necessarily legal, but a legislative act is not constitutional if it conflicts with the basic principles of the English constitution. Joseph Hawley, writing in 1775, argued that “security of life, liberty, and property” were “the fundamental, the explaining and controlling principles, which framed the constitution of Britain in its first stages.” Thus did many Americans appeal to the “ancient constitution” of England when defending their rights as British subjects.

Thomas Paine, as we have seen, would have none of this. In Common Sense (as he would later do in Rights of Man), Paine traced the current British government to the Norman conquest of 1066.

England, since the conquest, hath known some few good monarchs, but groaned beneath a much larger number of bad ones; yet no man in his senses can say that their claim under William the Conqueror is a very honorable one. A French bastard landing with an armed banditti, and establishing himself king of England against the consent of the natives, is in plain terms a very paltry rascally original.

This “Norman Yoke” account of the origin of the English government, which had a long and distinguished provenance in English libertarian thought, was a variant of the conquest theory of government. Paine noted only two exceptions to the conquest theory–namely, the governments of America and (revolutionary) France, which be believed were founded on consent rather than on conquest. Let us now examine the implications of Paine’s approach, as explained in Rights of Man.

According to Paine, governments arise out of society (through a “social compact”), or they arise over a society, as in violent conquest. Ultimately, there are only three possible sources for the supposed authority of governments: first, superstition, or “a government of priestcraft”; second, the power of conquerors; third, a government of reason, based on the consent of the governed. In a manner very similar to Ayn Rand’s later treatment of “Attila” and the “Witch Doctor,” Paine contended that the “race of conquerors” joined “fraud to force” by appealing to priests and oracles to justify their power; hence “an idol which they called Divine Right” and “an idol of another shape, called Church and State.” Consequently, “The key of St. Peter and the key of the Treasury, became quartered on one another, and the wondering cheated multitude worshipped the invention.”

Paine rejected the popular view that “government is a compact between those who govern and those who are governed.” Societies existed before governments, so in that early stage “there could originally exist no governors to form such a compact with.”

The fact therefore must be, that the individuals themselves, each in his own person and sovereign right, entered into a compact with each other to produce a government: and this is the only mode in which governments have a right to exist.

This doctrine laid the foundation for Paine’s theory of a legitimate constitution. “A constitution,” he argued, “is a thing antecedent to government, and a government is only a creature of the constitution. The constitution of a country is not the act of its government, but of the people constituting a government.” A constitution specifies the principles on which a government is based, its boundaries and legitimate powers, its organization, and so forth. A constitution is to a government as the laws of that government are to a judiciary. Just as a judge cannot make or alter laws but must act in conformity with laws established by a legislature, so a “government is in like manner governed by the constitution.” All this requires a written constitution, established and authorized by the people, that can be quoted “article by article” when controversies erupt over whether a government has exceeded its proper authority..

In contrast to the requirements of a proper constitution, the so‐​called English constitution was a product, not of the people, but of the government itself. The supposed elements of the English constitution–such as legal precedents, charters, and parliamentary legislation–emerged from and were authorized by the government, whereas a legitimate constitution must be authorized by the people directly. The purpose of a constitution, after all, is to define and limit the powers of a government, and the English “constitution” did no such thing. Whatever that government decided to do became constitutional, by definition, as illustrated in the doctrine (popular in Paine’s day) of parliamentary sovereignty. The notion of a government limiting itself is quite absurd. We may therefore conclude that “no such thing as a constitution exists [in Britain], or ever did exist, and consequently that the people have yet a constitution to form.” Paine continued:

Mr. Burke will not, I presume, deny the position I have already advanced—namely, that governments arise either out of the people or over the people. The English Government is one of those which arose out of a conquest, and not out of society, and consequently it arose over the people; and though it has been much modified from the opportunity of circumstances since the time of William the Conqueror, the country has never yet regenerated itself, and is therefore without a constitution.

Burke had promised to compare the English constitution to the constitution established by the revolutionary government of France, but, according to Paine, he reneged on that promise. Why? Because, Paine argued uncharitably, Burke could not even produce an English constitution for comparison. Paine then did a victory dance.

I readily perceive the reason why Mr. Burke declined going into the comparison between the English and French constitutions, because he could not but perceive, when he sat down to the task, that no such a thing as a constitution existed on his side the question. His book is certainly bulky enough to have contained all he could say on this subject, and it would have been the best manner in which people could have judged of their separate merits. Why then has he declined the only thing that was worth while to write upon? It was the strongest ground he could take, if the advantages were on his side, but the weakest if they were not; and his declining to take it is either a sign that he could not possess it or could not maintain it.

Paine’s victory dance may have been a bit premature. Although Burke never replied to Paine by name, he later published An Appeal from the New to the Old Whigs (August 1791)–a book‐​length sequel to Reflections on the Revolution in France that seriously called into question the kind of social compact theory on which Paine had relied. I shall consider Burke’s rejoinder in the next installment of this series.