Ancient constitutionalism

Ancient constitutionalism is a related set of medieval and (especially) early modern doctrines, generally opposed to royal absolutism, state centralization, and the doctrine of reason of state, in the name of a traditional fundamental law. Ancient here means “previous, old,” as in the French ancien of ancien régime; the law and constitution that are being appealed to, remembered, or invented were medieval, not ancient in the sense that refers to classical Greece or Rome. Indeed, the ancient constitution was also often referred to as the Gothic constitution, Gothic itself being a term often used during the (Greek-and Roman-oriented) Renaissance to refer to the nonclassical, feudal, Germanic centuries that preceded it, as in the Gothic art and architecture of the twelfth to fifteenth centuries. Gothic was often a derogatory term, the Visigoths and Ostrogoths, like the Vandals and other Germanic tribes, being remembered as barbaric destroyers of Roman civilization. But ancient constitutionalists would sometimes proudly appeal to an imagined history that included the Germanic tribes, who had a freedom in their primordial forests that the subjects of absolute Roman emperors lacked.

Ancient constitutions, as imagined or constructed by early modern ancient constitutionalists, were [Page 44]not the unified written documents with clear status as fundamental law that we now associate with the word constitution. There were complex mixtures of written charters and codes of public law (Magna Carta, for example), customs, evolved institutions, feudal oaths, and political compromises newly described as fundamental law. The key intellectual move of an ancient constitutionalist argument was usually to identify some exercise of central or royal power as novel and innovative and disruptive of some long-established rule, custom, law, or practice and as therefore illegal or illegitimate. Appeals to ancient constitutions were, therefore, not always coherent or compatible with one another, to say nothing of the historical record; defenses of aristocratic privileges and defenses of urban liberties could sit uncomfortably with one another, for example, since during the Middle Ages, urban liberties were asserted against local feudal lords at least as much as against distant kings.

Ancient constitutionalism probably had its greatest influence as a set of doctrines in seventeenth- and early eighteenth-century England. The ideas that a Saxon (that is Germanic) common law had governed England since before the time of the absolutist Norman conquest, that Magna Carta had restated what were already old rules and rights at English law, and that Parliament as an institution had for centuries held the authority to grant or withhold consent to taxation and legislation provided a baseline against which the Stuart kings could be said to be illegally innovating. Ancient constitutionalism thus formed part of the foundation of Parliamentarian and Whig ideologies; the execution of Charles I and the chasing from the throne of James II were both characterized as restoring a good and old legal-political order. In the seventeenth century, Thomas Hobbes was an important opponent of all parts of ancient constitutionalist thinking: He held that customs did not become law with age; that neither Parliament nor common-law judges could have any more authority than what a sovereign king granted them; and that the privileges of provinces, cities, and aristocrats alike were discretionary grants, not enforceable rights. In the late eighteenth century, David Hume, especially in his widely read multivolume History of England, subjected ancient constitutionalist history to devastating criticism. While Hume thought that the post-Glorious Revolution regime that we now think of as an emerging constitutional monarchy was a good one, he was also quite sure that it was a new one, not a restoration of what he took to be feudal barbarism. Nonetheless, ancient constitutionalist ideas retained a grip on the English historical imagination.

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