A reading of the deep history of constitutionalism shows why Trump is attacking western civilization itself

A reading of the deep history of constitutionalism shows why Trump is attacking western civilization itself
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Donald Trump’s stonewalling of Congress is not simply a political dodge to avoid accountability. It is an attack on western civilization itself. A reading of the deep history of constitutionalism shows why.

The western institution of constitutionalism began with the Magna Carta, signed in 1215 A.D. King John had tried to force new taxes on his people, but had not obtained the consent of the English Barons. They wrote a list of 61 rights that they demanded he honor if he wished to retain their loyalty. He signed it.

It included ideas we recognize and take for granted today. No taxation without representation. The idea that the ruler could not simply rule according to whim, but had to have the consent of his people to be governed. Both were central issues in the American Revolution, 560 years later.

Most importantly, Magna Carta established the implicit foundation for the separation of powers (which is structural), and checks and balances (which are operational). Those elements became inextricable with the western constitutional order.

For example, in the 1600s, Charles I of the Stuart family pretended he was wealthier than he actually was. He didn’t rent out Stuart Tower, but to cover his expenses, he tried to pawn the Crown Jewels. When that failed, he extorted forced loans from noblemen, putting 76 of them in jail when they refused to pay.

Parliament responded with another landmark of constitutional law, the 1628 Petition of Right. It invoked Magna Carta on the point of no taxation without representation. But it went further, stating that nobody could be imprisoned without the due process of law: Habeas Corpus. The King needed money, so had to sign. It proved a fateful decision.

In signing, Charles acknowledged not just that he had done wrong but, more importantly, that it was in the proper purview of Parliament to hold him to account for it. It was an epochal concession, signaling a massive shift away from “the divine right of kings” under which Charles had claimed to rule, and toward government of balance between executive and legislative branches. Still, Charles was unrepentant.

He dismissed Parliament for 11 years and undertook “personal rule.” He started a war with Scotland and unilaterally imposed taxes on ships to raise money. He tried to force a crypto-Catholic prayer book on the Presbyterians. The affronts to established order were so egregious the country fell into civil war.

It was the monarchy against Parliament, town against country, the feudal-leaning House of Lords against a proto-capitalist House of Commons. Thomas Hobbes, in Leviathan, called it “a war of all against all.”

Charles lost the war and was tried for treason against the state. He claimed Parliament had no right to put him on trial—that the legislature had no standing to hold the king accountable.

When asked how he pleaded to being “a Tyrant, a Traitor, a Murderer, and a public enemy to the Commonwealth of England,” he replied, “I would know by what power I am called here, by what Lawful authority? There are many unlawful authorities in the world; thieves and robbers by the highways. But when I know by what lawful authority I am brought hence, I shall answer.”

The chief prosecutor, Richard Bradshaw, speaking for Parliament, had a different idea. He replied, “Sir, you have held yourself as if you had in no ways been subject to the Law, as if you were the Law’s superior. The Law, sir, is your superior.”

Bradshaw concluded, “The difference, sir, is who shall be the expositor of the Law, whether you and your party, or the Sovereign and High Court of Justice, the Parliament of England.” In other words, no man—not even the king— is above the law, and it was the Parliament who made the decision about such things.

Charles was executed in 1649. Separation of powers, checks and balances, and the rule of law were no longer just conceptual tenets of western constitutionalism. They had acquired life-and-death immediacy, defining the very nature of western governance. In the process, Parliament—the legislative branch of government—had become ascendant in holding the executive accountable for its actions.

Forty years later, another constitutional crisis emerged. Charles’ son, James II, again tried to force Catholicism on the nation. Fed up with it all, Parliament carried out a coup d’etat, the Glorious Revolution, running James out of the country and replacing him with a reliably and pliable Protestant, William, and his wife, Mary.

One of the conditions imposed on William before he was allowed to ascend to the throne, was that he accept oversight by Parliament in a range of financial, judicial, and foreign policy arenas. William agreed. It represented a tectonic shift away from absolute monarchy and toward constitutional monarchy, where the king is limited by specific constraints that were dictated by Parliament.

John Locke, a supporter of the Glorious Revolution, wrote in Two Treatises of Government, published in 1689, that the king only had legitimacy if he ruled with “the consent of the governed,” which meant with sanction from Parliament. Locke’s logic was that the monarchy was hereditary, so contained no possibility of sanction, or consent, from the people. The people gave their sanction through Parliament, “the voice of the people.”

This was profoundly influential in the very formation of America. In the third sentence of the Declaration of Independence, Thomas Jefferson wrote, “Governments are instituted among Men, deriving their just powers from the consent of the governed. Whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government.””

Consent of the governed, which could only be expressed through the Legislature, had become established doctrine in Western governance and an explicit provision in the impetus for the American Revolution and the design of the American political architecture.

The American revolutionaries, were, of course, British citizens. New England is called New England because there was an old England across the sea. Similarly, there is an old York, and an old Hampshire. Georgia was named for King George; Maryland for Queen Mary; Virginia for Elizabeth, “the virgin queen;” and so on.

The point is that the founding fathers were inescapable heirs of their British past, going all the way back to Magna Carta. It was British constitutional history that formed the guidelines for the design of the American republic and that history was all about the legislature restraining the actions of a runaway executive.

After the Glorious Revolution, political action shifted to the continent where the French Revolution was brewing. The French aristocrat, Baron de Montesquieu, had marveled at Isaac Newton’s model of the solar system, where the centrifugal force of the planets, spinning outward, was perfectly balanced by the gravitational force of the sun, pulling them inward

He used Newton’s model to formalize a social analogue, where the elements of the system were not stars and planets, but branches of government: executive; legislative; and judicial.

In The Spirit of the Laws, published in 1748, Montesquieu wrote, “Experience shows that every man invested with power is apt to abuse it. To prevent this abuse, it is necessary that power should be a check to power… This is the fundamental constitution of the government: the several bodies check one another and naturally form a state of repose.”

When James Madison wrote the Constitution in 1787, he was channeling Montesquieu, much as Jefferson had channeled Locke in writing the Declaration of Independence. He designed a government of separate branches with distinct and countervailing powers: Congress; the Presidency; and the Judiciary.

Madison could not have been more Montesquieuean, or Newtonian, than when he wrote, “Governments must be so constructed that their several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.”

That is the system—with separation of powers, checks and balances, the rule of law, and oversight of the executive by the legislative branch—that we live under today, at least nominally. Whether it is the system we live under going forward will depend on the fortitude of the legislative branch—Congress—in carrying out its Constitutional duties.

Trump’s imperious usurpations of that system do not simply affront political sensibilities or conventional norms. They desecrate the western constitutional order that has been 800 years in the making. That order is an inextricable part of the civilization itself, no more able to be separated from it than yellow can be taken out of a lemon, without destroying the lemon itself. Trump’s undermining of that implicate order—the order that has created and defined the nation—is nothing less than an attack on the civilization itself.


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